Beard v. Payne
| Decision Date | 20 April 1917 |
| Docket Number | No. 9236.,9236. |
| Citation | 64 Ind.App. 324,115 N.E. 782 |
| Parties | BEARD et al. v. PAYNE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Madison County; Charles K. Bagot, Judge.
Action by Edward Payne against Clarence H. Beard and others to recover on a promissory note and foreclose a vendor's lien. Judgment for plaintiff, and defendants appeal. Affirmed.Albert D. Ogborn, Clarence M. Brown, and Robert S. Hunter, all of New Castle, for appellants. H. G. Yergin, W. O. Barnard, and W. E. Jeffrey, all of New Castle, for appellee.
Appellee filed his complaint in the court below against appellants on a promissory note and to enforce a vendor's lien. So much of such complaint as is necessary for the determination of the questions raised, with reference thereto, is substantially as follows: That on the 31st day of January, 1912, appellee Edward Payne and Lafe Bell sold and conveyed to the appellant Clarence H. Beard, by their warranty deed of that date, certain real estate in Henry county, Ind. (describing it), for the sum of $4,000; that said Beard thereupon executed to said grantors his promissory note for said sum; that a lien for said purchase money on said real estate was declared, expressed, and confirmed in said deed, which deed was duly recorded in the recorder's office of said county; that said grantors, for a valuable consideration, sold and assigned said promissory note to the Citizens' State Bank of New Castle, Ind., by indorsement in writing on the back thereof, and delivered the same to it; that some time after said note had been sold, assigned, and delivered to said bank, the said appellant Beard failing and refusing to pay the balance due thereon, on demand, said bank required and compelled the appellee, as an indorser thereon, to pay and take up said note, which he did in 1913, and that by so doing he became the owner and holder of said note and the debt evidencedthereby, and the owner and holder of said lien given to secure its payment; that, since the conveyance of said real estate by said grantors to the appellant Beard, the said Beard sold and conveyed the same to the appellant Olna H. Bradway; that said Bradway took and accepted the said deed of conveyance with full notice and knowledge that said purchase money as aforesaid was unpaid, and that the lien therefor on said real estate was unsatisfied; that, by reason of the premises, there is due and owing appellee the sum of $3,500, and which sum is a lien on said real estate. Demand for judgment in the sum of $3,500, that the same be declared a lien on said real estate, and an order entered for the sale of the same in satisfaction thereof.
To this complaint, appellant Olna H. Bradway filed his demurrer for want of facts, and based the same on the following memorandum filed therewith:
This demurrer was overruled and an exception reserved.
Appellant Olna H. Bradway has assigned this ruling of the court as error. Under the statute, we are only required to consider the objection to the complaint, stated in such memorandum as all other objections are deemed waived. Section 344 (6), Burns 1914; Pittsburgh, etc., R. Co. v. Farmers', etc., Co. (1915) 183 Ind. 287, 108 N. E. 108;Spiro v. Robertson (1914) 57 Ind. App. 229, 106 N. E. 726;Gifford v. Gifford (1915) 58 Ind. App. 665, 107 N. E. 308.
[1] It will be observed that the complaint not only alleges that such note was given for the purchase money of said real estate, but it expressly avers that it was declared to be a lien thereon, in the deed executed therefor. Such allegations were sufficient to show the existence of a vendor's lien.
[2] It is further alleged that such note was sold and assigned to the Citizens' State Bank of New Castle, by indorsement in writing on the back thereof. Inasmuch as such lien was an incident to said note, and nothing appears to show that it had been released or otherwise discharged, such assignment of said note carried said lien with it to such assignee, without a special assignment thereof. Kern v. Hazlerigg (1859) 11 Ind. 443, 71 Am. Dec. 360;Perry v. Roberts (1868) 30 Ind. 244, 95 Am. Dec. 689;Felton v. Smith (1882) 84 Ind. 485;Upland, etc., Co. v. Ginn (1896) 144 Ind. 434, 43 N. E. 443, 55 Am. St. Rep. 181;Smith v. Mills (1896) 145 Ind. 334, 43 N. E. 564, 44 N. E. 362.
[3] It is further alleged that, subsequent to the assignment of such note to said bank, it compelled appellee, as an indorser thereon, to pay and take up said note, which he did and thereby became the owner thereof. There is nothing to show that said lien had been released or discharged prior to the time appellee became the owner of such note in the manner alleged, and hence it would still follow said note as an incident thereto into the hands of appellee. The fact that appellee alleges that he was compelled to pay and take up said note as an indorser thereon in no way affects the lien incident thereto. If he became the owner thereof, he was entitled to the lien securing the same, regardless of the fact that he was an indorser thereon, and took the same from the bank to protect himself as such. He was not required to rely on the principle of subrogation, in order to assert such lien, as suggested in the memorandum, as the mere fact that he became the owner of the note entitled him to the security incident thereto.
[4] It is alleged that the appellant Olna H. Bradway purchased said real estate with full notice and knowledge that said purchase money was unpaid. Under such circumstances, the real estate would be bound by such lien in the hands of said appellant, as such purchaser. Bryson v. Collmer (1904) 33 Ind. App. 494, 71 N. E. 229;Borror v. Carrier (1905) 34 Ind. App. 353, 73 N. E. 123. The court therefore did not err in overruling the demurrer of appellant Bradway to the complaint. Issues were joined on the complaint and a trial had. The court, on request of appellants, made a special finding of facts, and stated its conclusions of law thereon. Judgment was rendered in favor of appellee, for the sum of $3,394.50 and costs. Said lien was foreclosed, and the real estate ordered sold in satisfaction of such judgment.
[5][6] The only remaining error assigned is the action of the court in overruling appellant's motion for a new trial. This motion is based on four grounds, the third and fourth of which challenge the sufficiency of the evidence to sustain special finding No. 26. These alleged grounds raise no question, as they are not proper assignments in a motion for a new trial. Scott v. Collier (1906) 166 Ind. 644, 78 N. E. 184;Hamrick v. Hoover (1908) 41 Ind. App. 411, 84 N. E. 28. The remaining grounds for a new trial are that the decision of the court is not sustained by sufficient evidence and is contrary to law. The word “decision,” when so used in this case, refers to the special finding of facts. Weaver v. Apple (1896) 147 Ind. 304, 46 N. E. 642;Parkison v. Thompson (1905) 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677. It therefore follows that only the special findings are challenged by the motion for a new trial.
[7] Appellants contend that the evidence shows that the Citizens' State Bank accepted three notes secured by mortgages amounting to $7,800 as collateral security for any debts that appellant Beard might be owing said bank; that at such time the said bank was the owner of the note in suit as assignee, and the act of accepting such collateral security waived the vendor's lien in question. They seek to apply the rule that the acceptance of security for the purchase money of real estate waives the implied lien of the vendor on such real estate therefor. The deed for the real estate in question was introduced in evidence and is made a part of the special finding of facts. It contains the following clause, after the description and identification of the real estate:
“Subject to a purchase-money lien note of $4,000.00 to Lafe Bell, Ed Payne, and Charles F. Payne, payable at the Citizens' State Bank of New Castle, Indiana, of this date, with six per cent. interest from date, and signed by Clarence H. Beard.”
A lien thus reserved in a deed of conveyance is a lien by contract and not by implication. It is therefore an expressed and not an implied lien. It has all the essential elements of a mortgage. Pomeroy's Equity Jurisprudence (2d Ed.) vol. 3, § 1257; Jones on Liens, §§ 1110 and 1111; Dowdy v. Blake, 50 Ark. 205, 6 S. W. 897, 7 Am. St. Rep. 88;Ober v. Gallagher, 93 U. S. 199, 23 L. Ed. 831. In this state such a lien has been held to be in effect an equitable mortgage, or equivalent to a mortgage. Lucas v. Hendrix (1883) 92 Ind. 54;Bever v. Bever (1895) 144 Ind. 157, 41 N. E. 944;Warford v. Hankins (1898) 150 Ind. 489, 50 N. E. 468;Cassell v....
To continue reading
Request your trial