Artz v. Yeager

• Decision Date: 02 April 1903
• Citation: 30 Ind.App. 677,66 N.E. 917
• Parties: ARTZ et al. v. YEAGER.
• Court: Indiana Appellate Court

30 Ind.App. 677

66 N.E. 917

ARTZ et al.

v.YEAGER.

Appellate Court of Indiana, Division No. 2.

April 2, 1903.

Appeal from Circuit Court, Vigo County; S. M. McGregor, Special Judge.

Action by Warren M. Yeager against J. A. Artz and another. Judgment for plaintiff, and defendants Coohns appeal. Reversed.

Peter M. Foley and S. D. Royse, for appellants. I. N. Pierce and W. A. Keerns, for appellee.

ROBY, C. J.

This action was brought by appellee, Warren M. Yeager, to foreclose a mortgage upon certain lands in the complaint described. A special finding of facts was made, and a conclusion of law stated thereon, to the effect that the plaintiff was entitled to a foreclosure of the mortgage against all defendants. No defendants except appellants made any defense to the action. They excepted to the conclusion of law, and assign error thereon.

It appears from the finding that one Artz, on the 25th day of February, 1893, executed to one McNabney five promissory notes for $50 each, due in 14, 18, 20, 26, and 32 months after date. On March 20, 1893, Artz, his wife joining, executed the mortgage in suit to secure said notes. On December 26, 1893, McNabney sold and indorsed the four last notes of the series to John W. Harris, and also made upon the margin of the record a written assignment to him of the mortgage securing them, the same being attested by the recorder and regular in all respects. On February 23, 1894, Harris sold and indorsed said notes to Vincent Yeager, and delivered them, with the mortgage in suit, to him. In June, 1894, payment of one note was made to said Yeager. The three last notes were sold and delivered by him on April 1, 1894, to appellee. Both of said last-named transfers were for value. No record of any assignment of said notes and mortgage was ever recorded, except the one to Harris. On July 29, 1893, Artz and wife executed a warranty deed of the mortgaged premises to Eli H. Redmon, and the same was on said day duly recorded. On March 16, 1894, Redmon and wife conveyed the premises by quitclaim deed to John W. Harris, the said deed being recorded the day after its execution. On March 17th, Harris entered into an agreement with Martin and Sarah Coohns, husband and wife, by which he was to convey said premises to them in exchange for certain real estate then owned by them. Abstracts of title were to be furnished on both sides, warranty deeds made, and the respective tracts to be free and unincumbered. They met at a law office for the purpose of carrying out the agreement. Coohns stated the conditions of the trade to the lawyer, and informed him that unless the title to the Harris tract was free from incumbrance there was to be no trade, but if he found the title free and unincumbered he should prepare deeds in accordance with said agreement. On the afternoon of said day, Coohns and Harris again met in said law office, and the lawyer then informed Coohns that he had examined the title, and found it to be all right and unincumbered; Harris at the time also assuring Coohns that the title was free from liens and incumbrances. Coohns and wife then executed a warranty deed conveying their land, and received a deed from Harris conveying his to them. Two days following, Coohns discovered that he had received a quitclaim instead of a warranty deed. He thereupon consulted a different lawyer, and related to him the agreement and circumstances, and with him called upon Harris and requested him to comply with his agreement, and make a warranty deed conveying a clear and unincumbered title to said land. Harris then agreed to do so, whereupon Coohns and his lawyer examined the records in the recorder's office, and discovered the mortgage in suit of record, uncanceled, but assigned to the said Harris, and, learning that one Sloss was the holder of the notes described in the mortgage, called upon him for information, and were told that the notes which he held were paid. They then called upon Redmon, the former owner of said land, and made inquiry of him, and were informed that the notes secured by the mortgage were paid and destroyed. They then called upon Harris and made inquiry concerning said notes, and were informed by him that he had bought the land, and also the notes secured by the mortgage, that he had burned and destroyed the notes, and that the land was clear. Relying upon this information and the record, Coohns...