Balue v. Sear
| Decision Date | 17 October 1891 |
| Docket Number | 15,979 |
| Citation | 28 N.E. 707,131 Ind. 301 |
| Parties | Balue et al. v. Sear |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 28, 1891.
From the Marshall Circuit Court.
Judgment affirmed.
A. C Capron and W. B. Hess, for appellants.
I. P Gray, P. Gray, J. D. McLaren and E. C. Martindale, for appellee.
This was an action brought by the appellee against the appellants for the foreclosure of a mortgage executed by them to him for the sum of $ 7,000.
The defendant Marion Balue answered: 1st. That the note and mortgage were executed without any consideration whatever. 2d. That he admits the execution of the note and mortgage sued on, but says that the consideration for which they were executed has wholly failed in this: That the defendant was the owner of the land described in the mortgage, and desired to borrow the sum of $ 7,000; that the plaintiff undertook to procure a loan for that amount on the note and mortgage for the defendant; that for the purpose of enabling him to do so the defendant, joined by his wife, executed the note and mortgage in suit, and placed the same in plaintiff's hands for the purpose of being negotiated to procure said loan. But defendant says that plaintiff did not pay this defendant, or any other person for him, anything whatever on said note and mortgage, nor did he procure for defendant any money or loan of any kind on said note or mortgage, nor did he negotiate said note and mortgage, but, on the contrary, he has held the note and mortgage in his own possession, and has now wrongfully brought this action thereon. Wherefore, he says that the consideration has wholly failed, and he demands judgment.
The plaintiff replied by a general denial of each and every allegation contained in the answer.
A trial by the court resulted in a finding and judgment against the defendants for the full amount of the note.
The defendant asked for a new trial, assigning as causes therefor: That the finding of the court is not sustained by sufficient evidence; that the finding of the court is excessive in amount.
Error of law occurring on the trial and excepted to at the time by the defendant, in this, to wit, the court erred in allowing the plaintiff to testify to the sum of money paid by him upon the mortgage known as the Ray mortgage. The court erred in allowing plaintiff to introduce evidence tending to prove that after the execution of the note and mortgage he had paid certain sums of money in extinguishment of certain liens, taxes, water rents, and to complete the buildings on certain lots in Chicago, known as the Van Buren and Clinton street property, which property the plaintiff had purchased of this defendant in April, 1889.
Evidence was introduced on the trial of the cause by the appellant tending to sustain the defence pleaded in his second paragraph of answer. At the conclusion of the evidence introduced by the defendant the plaintiff was placed upon the witness-stand and permitted to testify, under the reply of general denial, in substance, as follows:
That the execution of the note and mortgage was not made to enable the plaintiff to procure a loan for the benefit of the defendant, but was executed to protect the plaintiff from loss on account of the mortgage and certain other claims which were or might become liens against certain property in Chicago which the defendant had conveyed to him, as well as to secure some prior loans made by the plaintiff to ...
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