Bartholomew v. Pierson

• Decision Date: 30 November 1887
• Citation: 112 Ind. 430,14 N.E. 249
• Parties: Bartholomew v. Pierson.
• Court: Indiana Supreme Court

112 Ind. 430

14 N.E. 249

Bartholomew

v.Pierson.

Supreme Court of Indiana.

November 30, 1887.

Appeal from circuit court, Hendricks county; Alexander C. Ayres, Judge.

The plaintiff brought action against the defendant to foreclose a mortgage executed by defendant and her husband, and to recover on the note secured thereby. The mortgage was given on land held by the defendant and her husband as tenants by entireties. The money obtained was paid direct to the husband, no part of it being paid to the defendant. Defendant filed a cross-complaint, asking for a cancellation of the mortgage on the ground that, as she was a surety merely, it was void as to her. Judgment was given for the defendant, and plaintiff appeals.

Hogate & Blake, for appellant. Thomas L. Moore and John v. Hadley, for appellee.

Zollars, J.

Appellant by this action seeks to foreclose a mortgage, and recover a personal judgment upon a promissory note. Upon a proper request, the court below made a special finding of the facts. The facts so found are substantially as follows: On the fifteenth day of February, 1883, appellee and her husband, since deceased, executed the note and mortgage in suit. The mortgage is upon land which appellee and her husband owned as tenants by entireties. At the time of the execution of the note and mortgage, and in consideration thereof, appellant signed and delivered to the husband a check on a bank for $600, setting out the check, the amount of which was paid to the husband by the bank. Appellee “received no part of the money thus obtained. * * * She signed the note and mortgage in order that her husband, William H. Pierson, might obtain said money, but not for the purpose of obtaining any money for herself.” Upon the facts thus found and stated, the court concluded and adjudged, as a matter of law, that, as against appellee, the note and mortgage are void, and that appellant is not entitled to recover upon either; and, further, that appellee is entitled to have the same canceled, as she asks in her cross-complaint.

The first question for decision here is, are the conclusions of law correct upon the facts found. That the check was delivered to the husband, and made payable to him, is an evidentiary fact, rather than the ultimate fact to be found; and while it may tend in some degree to show that the loan was made to the husband, it is by no means conclusive of that fact. So far as the ultimate rights of the parties are concerned, it is immaterial, except as a matter of evidence, to whom the check was made payable, or who received the money upon it from the bank. The statements in relation to the check, and the payment of it to the husband, are statements of evidence, and have no proper place in the finding of facts. They should be regarded as surplusage, and disregarded in passing upon the finding of facts. Ward v. Insurance Co., 108 Ind. 301, (307,) 9 N. E. Rep. 361; Railway Co. v. Bush, 101 Ind. 582;Railway Co. v. Adams, 105 Ind. 151, 5 N. E. Rep. 187.

The mortgage executed by appellee and her husband, upon the land which they owned as tenants by entireties, was not necessarily void, either at common law or under our statutes. Dodge v. Kinzy, 101 Ind. 102, (106;)McLead v. Insurance Co., 107 Ind. 394, (397;)Fawkner v. Scottish, etc., Co., 107 Ind. 555, 8 N. E. Rep. 689. Under our statute, (section 5119, Rev. St. 1881,) both the note and mortgage are void as to appellee, at her pleasure, if she executed them as surety for her husband only. See cases...