Belk v. Fossler
| Decision Date | 06 October 1911 |
| Docket Number | 6,973 |
| Citation | 96 N.E. 15,49 Ind.App. 248 |
| Parties | BELK ET AL. v. FOSSLER ET AL |
| Court | Indiana Appellate Court |
Rehearing denied December 13, 1911. Transfer denied January 12, 1912.
From Cass Circuit Court; John S. Lairy, Judge.
Suit by Charles Fossler and another against Tacey B. Belk and others. From a decree for plaintiffs, Tacey B. Belk and certain other defendants appeal. For opinion on motion to dismiss appeal see 42 Ind.App. 480.
Affirmed.
Frank E. Guthrie and Charles E. Hale, for appellants.
George W. Funk, Myers & Yarlott and Antrim & McClintic, for appellees.
From the numerous pleadings in this case we take the following facts: On September 7, 1899, appellant Sarah J. Smith was the owner of a certain lot in Logansport, Indiana, and on that day, her husband joining, she mortgaged it to William S. Danes, to secure the payment of a note for $ 300, due three years after date. This mortgage was recorded in the office of the recorder of Cass county, September 8, 1899. On October 9, 1901, Mrs. Smith and her husband, in exchange for other real estate, conveyed said lot by warranty deed to James C. Cockburn. On July 21, 1902, said Cockburn conveyed said lot by warranty deed to Tacey B. Belk. On October 7, 1902, said Belk executed to appellees a mortgage on said lot, to secure the payment of a note for $ 575, due in three years. On June 24, 1903, said Belk reconveyed said lot to Cockburn. Neither of said deeds made any reference to either of said mortgages. In appellees' complaint, and in the separate answer and cross-complaint of Belk, and in the separate answer and cross-complaint of Bertha Bird, it is shown that as a part of the consideration for the transfer of the lot by Smith to Cockburn, and as a part of the consideration for the reconveyance of the lot by belk to Cockburn, the latter assumed and agreed to pay the Danes note and mortgage. On January 7, 1905, Danes assigned the note for $ 300 and the mortgage held by him to Cockburn, who, on January 16, 1905, for full value--$ 300--assigned them to appellant Clarissa A. Lovejoy. On September 2, 1903, Cockburn entered into a written contract with Bertha Bird for the sale of said lot to her, and, pursuant to said contract, she took possession of the lot, and alleges that she had performed all the conditions of that contract on her part. Said contract was never recorded in the office of the recorder of Cass county. The value of the lot does not exceed $ 700.
Appellees brought this suit against appellants to foreclose the mortgage held by appellees, and to cancel the mortgage held by appellant Lovejoy. Lovejoy answered the complaint, and by a cross-complaint making Danes a party defendant she sought to foreclose the mortgage so assigned to her, and to have it declared a lien on the lot superior to that asserted by appellees or either of her codefendants.
The issues joined on the complaint and the several cross-complaints were submitted to the court for trial, resulting in a finding in favor of appellees upon their complaint, and against all of the defendants thereto. Also in favor of Belk and Bird on their several cross-complaints, and against Lovejoy on her cross-complaint. A decree was entered in accordance with the findings.
Lovejoy's motion for a new trial was overruled and this ruling, and the rulings on the demurrer to each paragraph of appellees' complaint, to the cross-complaints of Belk and Bird, to the second, third and fourth paragraphs of appellees' answer to appellant Belk's cross-complaint, and to the second and third paragraphs of Belk's answer to Lovejoy's cross-complaint, are made the basis for a separate assignment of error by appellant Lovejoy.
The theory of the Fosslers, Belk and Bird is that Cockburn was the owner of the mortgagor's equity in the lot at the time the note and mortgage he agreed to pay were assigned to him, and therefore the law merged the mortgage estate in the fee simple. Also, that when the note and mortgage were assigned to Lovejoy, they were past due, and in her hands subject to all infirmities and to all defenses.
It is the theory of Lovejoy that the records affirmatively contradict the theory of merger, and as she had no notice of the alleged agreements of Cockburn to pay the Danes mortgage as part consideration for the lot, she was protected as an innocent purchaser.
As against the separate affirmative answers and cross-complaints of Belk and Bird, it is first insisted that neither shows that the pleader had any interest in the matter in controversy. Appellees sought to foreclose their mortgage securing the payment of a note executed by Belk, and it is shown that the lot is not worth enough to satisfy the note for $ 300 and the debt to appellees. The note and mortgage when assigned to Lovejoy were past due, and Belk pleads facts showing that Cockburn agreed to pay this debt as a part of the consideration for the retransfer of the lot to him. It is also shown that in the exchange of lots with Smith, Cockburn agreed to pay the Dane's mortgage as a part of the consideration for that transaction. Bird shows that she is in possession of the lot under a contract of purchase from Cockburn, who is insolvent, and that she has complied with all of the terms of the contract on her part. A mere statement of the facts shows an interest, which, under the settled practice, entitled them to have their rights adjusted in one suit.
It is argued that Lovejoy had no knowledge of the alleged agreements of Cockburn to pay the Danes's paper, and that the preservation of the lien of the Danes's mortgage in her favor would not work a hardship on either of the other parties, for the reason that their position would not be changed from that occupied by them at the time of the execution of the mortgage by Belk. We cannot agree with this contention, for if Cockburn agreed to pay the Danes's mortgage as a part of the purchase money for the lot, and he actually complied with that agreement, all parties in interest were entitled to the benefit of that payment, even though it advanced the second mortgage to first place. Note to American Bond Co. v. National Mech. Bank (1903), 99 Am. St. 466 525. Lovejoy is claiming to have the senior mortgage on the lot, but her rights in this...
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