Bakes v. Gilbert

• Decision Date: 22 January 1884
• Docket Number: 10,800
• Citation: 93 Ind. 70
• Parties: Bakes v. Gilbert et al
• Court: Indiana Supreme Court

93 Ind. 70

Bakes v. Gilbert et al

No. 10,800

Supreme Court of Indiana

January 22, 1884

From the Switzerland Circuit Court.

Judgment reversed, at the appellees' costs, with instructions to the court below to sustain the appellant's motion for a new trial, and also to sustain his demurrer to the second paragraph of the appellee Alice's answer to the first paragraph of the complaint and for further proceedings in accordance with this opinion.

W. D Ward and T. Livings, for appellant.

OPINION

Hammond J.

Action by the appellant against the appellees. The appellant's complaint, in the first instance, was in one paragraph, upon a mortgage purporting to have been executed by the appellees to secure the payment of a note given by the appellee Samuel A. Gilbert. The appellees were husband and wife. The appellee Alice answered in three paragraphs: 1. The general denial. 2. Infancy. 3. Non est factum, under oath.

The appellant demurred to the second paragraph of her answer for want of facts, etc., but his demurrer was overruled. An exception was taken, and this ruling is assigned as error. The demurrer should have been sustained.

The mortgage is dated March 29th, 1872. Since April 13th, 1866, it has been competent for an infant wife of an adult husband to join with him in the conveyance of his real estate. Section 2943, R. S. 1881. The plea of infancy in this case did not aver that the real estate was the separate property of the wife, nor that the husband, at the time of the execution of the mortgage, was a minor. One of these averments, in addition to that of the wife's infancy, was essential to make the second paragraph of her answer good.

After the overruling of his demurrer to the second paragraph of Alice's answer, the appellant, by leave of court, filed two additional paragraphs to his complaint, numbered as the second and third paragraphs. The facts stated in the second paragraph were substantially as follows:

The appellant, October 4th, 1869, conveyed the real estate described in the mortgage to one Eliza Ridgeway, a married woman, for $ 350. One hundred dollars was paid, and the appellant acquired and retained a vendor's lien for $ 250, the balance of the purchase-money. On March 22d, 1872, Mrs. Ridgeway conveyed the real estate to the appellee Alice, who had notice of the unpaid purchase-money, and who assumed its payment as the consideration for the deed to her. The appellee Samuel A. Gilbert, who was then and has since been notoriously insolvent, executed to the appellant the note declared on in the first paragraph of the complaint for $ 267.58, being the balance of principal and interest due from Mrs. Ridgeway for purchase-money, and also delivered to the appellant, as security for the payment of the note, the mortgage described in the first paragraph of the complaint. The appellant accepted the mortgage in good faith. The appellee Alice, at the time the mortgage purported to have been executed, was an infant, but this fact was unknown to the appellant when he accepted the mortgage.

The third paragraph of the complaint was the same as the second, except that it omitted the averment of Alice's infancy, and, in lieu thereof, alleged that she never executed the mortgage, a fact also unknown to the appellant when he accepted it.

The appellant sought by the second and third paragraphs of his complaint to enforce his lien as vendor for the unpaid purchase-money of the real estate.

The appellees answered the second and third paragraphs of the complaint by the general denial, and by a special paragraph, which we think was good as a plea of payment, and that there was, therefore, no error in overruling the appellant's demurrer thereto. There was a reply in denial of the affirmative answers. Trial by the court. Finding for the appellant as against the appellee Samuel A. Gilbert on the note described in the first paragraph of the complaint, and for the appellees upon the mortgage and vendor's lien. Judgment accordingly. The appellant's motion for a new trial for causes, among others, that the finding was contrary to law and the evidence, and not sustained by sufficient evidence, was overruled. The ruling was excepted to, and such ruling is also assigned as error.

So far as the mortgage was concerned, the evidence abundantly sustains the...