115 Ind. 519 | Ind. | 1888
This was a suit by appellant, Wood, as plaintiff, against Mary A. Dustman, William R. Herrick, Frank Zwahlen, Wyrick France, August Lordier and Alexander McAllister, as defendants. The object of the suit was to foreclose a certain mortgage alleged to have' been executed by defendant Dustman to the plaintiff on the 12th day of June, 1884, on certain real estate in Allen county, Indiana, and to collect the debt secured thereby. The other defendants above named were made parties to plaintiff’s action, upon the alleged ground that they claimed to hold liens, by
The cause, being at issue, was submitted to the court for final hearing, and the court found for plaintiff in the sum due on the note described in his complaint, and for the cross-complainant, Lordier, in the sums due and to become due on the notes described in his cross-complaint herein, and “that the mortgages,, described in plaintiff’s complaint and said Lordier’s cross-complaint, were executed on the same day,, and were equal liens” on the mortgaged premises. The court rendered judgments for the plaintiff and the cross-complainant respectively, in accordance with its finding, and decreed that the mortgaged real estate should be sold, as other lands are sold on execution, and that the proceeds of such sale, after the payment of costs herein and. accruing costs, should be applied to the payment, pro rata, of the respective;
The only error properly assigned here by plaintiff is the overruling of her motion for a new trial. In that motion, the- only causes assigned for such new trial were (1) that the finding of the court was not sustained by sufficient evidence, and (2) that such finding was contrary to law.
In his brief of this cause, plaintiff’s learned counsel says: “The sole question in the case is whether, upon the facts, appellant’s mortgage has priority over those mortgages set up by appellee Lordier, in his cross-complaint; or whether the latter mortgages are entitled in equity to share fro rata with plaintiff’s mortgage in the proceeds of the sale of the mortgaged real estate, under and by virtue of the decree of foreclosure ? ” This question is fairly presented for decision by the record of this cause and the error assigned thereon; and it is apparent, we think, that it is the only question in the case, about which there was or could be any room for controversy, which was considered and decided by the court below. The evidence in the record, without any material conflict therein, fairly showed, we think, that Mary A. Dustman, who executed all the mortgages sued on herein, as well by the cross-complainant as by the plaintiff, had agreed, on the 11th day of June, 1884, to purchase a certain lot of Wyrick France, and a certain other lot of Alexander McAllister. These purchases could not be consummated by defendant Dustman, on the day named, because she did not then have the money required to make the cash payments agreed upon, on the lots purchased. On the next day, June 12th, 1884, in the forenoon of that day, she effected a loan from plaintiff, Hester A. Wood, for which she then gave her note in the sum of $450, payable one year after date, with( interest at the rate of eight per cent, per annum, and then and there executed and acknowledged the mortgage sued on herein by'
After all these things had been done, and not before, the evidence further shows that said Mary A. Dustman used of the money so loaned her by plaintiff, the sum of $75 in making the cash payment on the lot purchased by her from said McAllister, and the sum of $50 in making the cash payment on the lot purchased by her from said France; and that she then and there, and not before, executed and acknowledged to said McAllister and France, respectively, the several mortgages assigned by them as aforesaid to the cross-complainant, Lordier, and described by him in his cross-complaint herein.
Without any room for doubt, as it seems to us, the foregoing facts are established by the evidence in this case, without any conflict therein. Upon these facts, plaintiff’s learned counsel insists very earnestly that she, Hester A. Wood, is entitled in equity to payment in full of the amount found due her by the court below, out of the proceeds of the sale of the mortgaged real estate, before the cross-complainant, Lordier, can be permitted to share in any part of such proceeds. The court below ruled otherwise, and, upon the facts shown by the evidence, decided and decreed that the plaintiff and the cross-complainant herein were entitled in equity to share pro. rata in the proceeds of such sale, after the payment of costs accrued and to accrue.
In the briefs of counsel, it is suggested that the court below ruled as it did upon the authority of Cain v. Hanna, 63 Ind. 408. In that ease it was held that separate mortgages on the same real estate, executed by .the mortgagor to several mortgagee's upon the same day, to secure the pay
So it was recently held by this court, in the well considered case of Gibson v. Keyes, 112 Ind. 568. In that case it appeared that one Edward. Green, on the 5 th day of March, 1878, executed a mortgage on -his farm to appellant’s intestate, Andrew J. Carr, to secure the payment of a promissory note. On the same day, but two hours after the full execution of the mortgage to Carr, the same mortgagor, Green, executed another mortgage on the same farm to appellee, Keyes, to secure the payment of another promissory note. Upon the foregoing facts the appellant claimed that the mortgage to Carr was entitled to priority over the mortgage to Keyes. But the circuit court ruled otherwise, and decided that as the two mortgages were executed on the same day, and as the law does not recognize the fractions of a day, there
We are of opinion, therefore, in the case in hand, that appellant was entitled in equity to priority of payment out of the proceeds of the sale of the mortgaged real estate, and that it was error to overrule her motion for a new trial.
The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the motion for a new trial, etc.