Aldridge v. Clasmeyer
| Decision Date | 27 June 1919 |
| Docket Number | 9,914 |
| Citation | 123 N.E. 825,71 Ind.App. 43 |
| Parties | ALDRIDGE ET AL. v. CLASMEYER |
| Court | Indiana Appellate Court |
From Delaware Superior Court; Everett Warner, Special Judge.
Action by Fred W. Clasmeyer against Bert E. Aldridge and another. From a judgment for plaintiff, the defendants appeal.
Affirmed.
Frederick F. McClellan, Donald D. Hensel and Leonidas A. Guthrie, for appellants.
Pickens Cox & Conder and Silverberg, Bracken & Gray, for appellee.
This is an action by appellee against appellants, who are husband and wife, to recover a judgment on certain promissory notes executed by each of them, and to foreclose a mortgage executed by appellants on certain real estate held by them as tenants by entireties, given to secure said notes. Appellant Mary J. Aldridge filed her separate answer to appellee's complaint in four paragraphs. The first is a general denial. The second alleges that she is the wife of her coappellant and was such at the time of the execution of the mortgage mentioned in appellee's complaint; that at the time of the execution thereof she and her said husband owned the real estate described therein as tenants by entireties; and that she executed the same, and the notes secured thereby as surety only. The third paragraph is a plea of want of consideration. The fourth paragraph alleges that, at the time of the execution of the notes and mortgages in suit, she was, and still is, the wife of her coappellant; that said instruments were executed in consideration of a debt owing by her coappellant to appellee; that she received no part of the consideration thereof, and executed the same only as surety for her said coappellant. Appellee filed a reply to the second, third and fourth paragraphs of said answer of appellant Mary J. Aldridge in two paragraphs. The first is a general denial, and the second alleges in substance that the notes in suit were given for the balance of the purchase price of a grocery store, purchased jointly by appellants, and that the mortgage in suit was given to secure the same. Appellant Mary J. Aldridge filed a demurrer to said second paragraph of reply, which was overruled. Appellant Bert E. Aldridge filed an answer to appellee's complaint in two paragraphs. The first is a general denial. The second is an answer to so much of appellee's complaint as seeks to foreclose the mortgage mentioned therein. It alleges in substance that, at the time of the execution of said mortgage, appellants were, and now are, husband and wife, and were on said date, and have been continuously since, the owners of the real estate described therein as tenants by entireties; that the only consideration for the notes described in said mortgage was a grocery store, which he alone purchased of appellee, and in which his coappellant had no interest; that the indebtedness evidenced by said notes is his debt; that no part of the consideration for said notes passed to his coappellant in any form; that at most she is only surety for said indebtedness, and that, by reason of such facts, the mortgage in suit is not subject to foreclosure. Appellants filed a joint paragraph of answer to appellee's complaint, which is the same in substance as the second paragraph of the separate answer of appellant Bert E. Aldridge. Appellee filed a reply to the second paragraph of the separate answer of appellant Bert E. Aldridge and the joint answer of appellants. The first paragraph is a general denial. The second alleges in substance that appellee sold a grocery store to appellants; and that the notes and mortgage in suit were executed by them in connection with, and as part of the consideration for, their joint business. The third paragraph alleges facts by which appellee seeks to estop appellants from asserting that appellant Mary J. Aldridge is surety on the notes in suit, and from denying the validity of the mortgage given to secure the same. Appellants demurred jointly, and appellant Mary J. Aldridge demurred separately, to appellee's said third paragraph of reply, which demurrers were each overruled. Appellants filed a cross-complaint against appellee, seeking to quiet their title to the real estate in question, to which the latter filed an answer in general denial. On the issues thus formed the cause was submitted to the court for trial. On request the court made a special finding of facts and stated its conclusions of law thereon.
The facts essential to the determination of the questions hereinafter considered are as follows: That on and prior to April 1, 1915, appellee was the owner of a grocery store and meat market in Indianapolis; that appellants were husband and wife, and were living together as such on said date, and at all times hereinafter mentioned, of which fact appellee had knowledge; that on and prior to said date each of appellants were earning wages and contributing the same to their family expenses; that on said date negotiations were begun between appellee and appellant Bert E. Aldridge for the sale of said store and market, in which appellee agreed to sell the same and accept as security for the deferred payments therefor a mortgage on certain lots in Muncie, Indiana, which appellants were purchasing, together with a chattel mortgage on the property sold; that said appellant talked to his wife about the purchase of said store and market, and informed her about the arrangements for the payment of the purchase price thereof; that on April 3, 1915 appellant Bert E. Aldridge gave appellee a check for $ 200 as the first payment on said store and market, and that it was then agreed that an inventory thereof should be taken on the next day, which was Sunday, and that the deal should be closed as soon as appellants received a deed for the Muncie lots; that appellee and appellant Bert E. Aldridge, assisted by others, made an inventory of the stock in said store and market on the following day, at which time the former delivered to the latter the keys to the room in which the same were located, and it was then agreed that the deal should be closed as soon as appellants received a deed for said Muncie lots; that on April 5, 1915, appellee arranged for a transfer of the insurance policy on the stock and fixtures, and for an assignment of the lease on the room in which the same were located, to appellant Bert E. Aldridge; that thereafter appellants received deeds for said Muncie lots, in which both were named as grantees; that thereupon appellant Bert E. Aldridge called appellee by phone and informed him that the deeds had been received; that it was then agreed that appellee and appellants should meet at the law office of Pickens, Cox and Conder during the noon hour of that day to close up the transaction; that shortly after noon on April 7, 1915, the parties met at the office of said attorneys as agreed; that one of said attorneys, Mr. Conder, at appellee's request, had theretofore prepared a bill of sale from appellee to appellants for said stock and fixtures, also the notes and mortgages in suit, also certain other notes, covering the balance of the purchase price of said stock and fixtures, and a chattel mortgage thereon, to be given by appellants to appellee to secure said last-named notes, and also an affidavit to be signed by appellee to comply with the bulk sales law; that, upon the arrival of appellants, Mr. Conder stated to them, in the presence of appellee, that he understood from what had been told him that Mrs. Aldridge was entering into the purchase of a grocery store with her husband, and that the bill of sale was to be made to them jointly; that he then read the bill of sale, real estate and chattel mortgages to appellant Mary J. Aldridge; that she stated that she did not know anything about the grocery business, and did not know how the matter would come out; that the appellants then signed the notes and mortgage in suit, the notes and chattel mortgage mentioned above, and acknowledged the execution of said mortgages before Mr. Conder as a notary public; that said notes and mortgages were thereupon delivered to appellee, who signed the bill of sale, and delivered the same to appellant Bert E. Aldridge; that said mortgages were duly recorded, and the notes secured by said chattel mortgage were paid, and said chattel mortgage duly released; that appellant Bert E. Aldridge operated said store and market for seven or eight months after April 7, 1915, during which time the money derived therefrom was deposited in his name, and used exclusively in paying the notes secured by said chattel mortgage thereon, and in paying bills incurred in operating said business, and no part thereof was used in paying the individual obligations of either of appellants; that on April 1, 1915, appellant Mary J. Aldridge was employed by the Indianapolis Corrugating Company at a salary of $ 18 per week, and prior to said date she had held a commission as notary public, and had acted as such in taking acknowledgments to various instruments; that during the time in which appellants operated said store and market they lived together as husband and wife, kept house as such, each contributing to the living expenses of said household, and during said time groceries, meats and provisions were taken from said store and market and consumed by appellants in their home; that about seven or eight months after April 1, 1915, appellant Bert E. Aldridge exchanged said store and market for certain real estate, the title to which was taken in the names of both appellants; that the consideration for the notes and mortgage in suit was a part of the purchase price of said store and market; that said notes are wholly unpaid; that appellee has been compelled to employ attorneys to collect said notes and foreclose said mortgage, and...
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