Borror v. Carrier
| Citation | 73 N.E. 123,34 Ind.App. 353 |
| Decision Date | 04 January 1905 |
| Docket Number | 5,052 |
| Parties | BORROR ET AL. v. CARRIER |
| Court | Court of Appeals of Indiana |
From Randolph Circuit Court; A. O. Marsh, Special Judge.
Action by Solomon Carrier against Sarah Borror and husband. From a decree for plaintiff, defendants appeal.
Affirmed.
Thompson & Thompson and B. F. Marsh, for appellants.
James S. Engle, F. S. Caldwell, W. G. Parry, J. P. Goodrich and A L. Bales, for appellee.
This was an action commenced and tried in the Randolph Circuit Court by Solomon J. Carrier against Isaac Borror and Sarah R Borror. The complaint is in three paragraphs; the gist of the first two being to foreclose a vendor's lien, and the third to set aside a deed from Isaac Borror to Sarah R. Borror as fraudulent.
The principal facts averred in the first paragraph are, that prior to September 27, 1887, appellee was the owner of a certain eighty-acre tract of land, described, in said county of Randolph; that on said day he sold and conveyed the same to said Isaac Borror for $ 3,300; that when said real estate was so conveyed it was encumbered, and said Isaac Borror assumed said encumbrance and paid some cash, leaving a balance of about $ 1,500 of the purchase money, for which said Borror gave three promissory notes; that on October 12, 1887, Isaac and Sarah R. Borror executed a mortgage on said real estate to one Scott to secure the payment of $ 2,500; that said Scott sold and assigned said mortgage to one Roe, who at that time held a junior mortgage on said real estate to secure the payment of $ 1,100; that said Roe brought suit to foreclose said mortgages, and appellee, claiming to hold a vendor's lien on said real estate to secure the payment of his said $ 1,500 of purchase money, procured himself to be made a party defendant to said suit, and set up his lien by way of cross-complaint; that such proceedings were had in said cause that on July 14, 1894, the court found that said Roe's mortgages were the first and prior liens; that appellee held a vendor's lien, but that it was junior to said other liens; that the amount due appellee was $ 1,457.89, and the liens were foreclosed, and the said real estate ordered sold to pay the sums found due; that afterward, April 13, 1895, Isaac Borror was desirous of borrowing money from one John Clayton with which to pay said judgment in favor of said Roe, and requested appellee to release the said lien and judgment of foreclosure in his favor, that he (Borror) might mortgage the said real estate to Clayton, and promised appellee if he would do so he would execute to appellee his notes for the amount of said judgment, "which would be treated and regarded as the unpaid balance of said purchase money, and that he might retain a lien upon said real estate for the unpaid balance of purchase money," second only to the lien of Clayton's mortgage; that thereupon said Borror executed said notes in suit--five for $ 200 each; that they are due and unpaid (copies exhibited); that on March 18, 1898, Isaac Borror conveyed said real estate to appellant, his wife; that she paid no consideration for such conveyance; that Isaac Borror made said conveyance "with an intention to cheat, defraud, hinder and delay the collection of said notes," and that said appellant took said conveyance with "full knowledge of all the facts herein set out, and with full knowledge of the facts that plaintiff held said notes and that the same were executed to him for the unpaid balance of the purchase money on said real estate; that the said Isaac Borror is insolvent, and has no property subject to execution." Prayer, demanding judgment against Isaac Borror, that a vendor's lien be declared on said real estate, that the lien be foreclosed and the land sold, etc.
The second paragraph avers the ownership of the land by appellee, sale to Isaac Borror, execution of the notes for balance of purchase money, and showing original vendor's lien as entered in connection with the foreclosure of the Roe mortgage, etc., as alleged in the first paragraph. "That afterward, to wit, on the 13th day of September, 1895, the said defendant [Isaac Borror] being unable to pay the said several amounts so found and adjudged to be due the said Roe and this plaintiff [appellee], and being unable to discharge said lands of said liens, and being desirous of obtaining a loan of money from one John W. Clayton with which to pay the said amounts so adjudged due the said Roe, and with which to discharge the said lien so adjudged in favor of said Roe, and being desirous of securing said proposed loan by a first lien and mortgage on said lands, and being desirous for said purpose of continuing and extending the time of payment of said amount so found and adjudged due this plaintiff [appellee] as aforesaid, requested this plaintiff [appellee] to release in favor of the said Clayton his said judgment, and the lien thereof of record, in order that said defendant might procure and that said Clayton might consent to make said loan as aforesaid, and in order that said defendant might execute to said Clayton said mortgage for the purposes aforesaid, which would be a first lien on said land; that said defendant [Isaac Borror] then and thereupon promised and agreed with this plaintiff [appellee] that if he would, for the purposes aforesaid, release his said judgment and lien of record, in order that said defendant [Isaac Borror] might execute said mortgage to said Clayton for the purposes aforesaid, that the said defendant Isaac Borror would thereupon execute to plaintiff [appellee] his promissory notes as evidence of the continuation of said debt represented by said judgment, which said promissory notes should be regarded and treated as being secured by a vendor's lien on said real estate to the same extent and in the same manner as said judgment, and that this plaintiff might and would retain a vendor's lien on said real estate, second only to said mortgage of said Clayton; that said notes should be regarded and treated as representing said unpaid balance of the purchase price of said real estate." The paragraph then proceeds to allege the release of the judgment and the execution of the notes in suit, that they are due and unpaid, and exhibits copies of them. The paragraph sets out the conveyance to Sarah Borror, and the insolvency of Isaac Borror, as in the first paragraph, and demands judgment, etc., as in the first paragraph, except that the lien be foreclosed as to each of the defendants, etc.
The third paragraph avers the execution of the notes in suit; that on the 13th day of September, 1895, Isaac Borror was the owner of seventy acres of real estate (describing it); that on said date there was a mortgage of $ ____ on the same; that on the 19th of March, 1898, Isaac Borror conveyed said real estate to appellant, who was his wife, without any consideration having been paid by appellant or received by said Isaac; that appellant took and accepted said conveyance without paying any consideration therefor, nor has she since paid anything therefor, and with full notice and knowledge of all the facts, and with full notice and knowledge that appellee so held the notes, and that they were unpaid; that Isaac had not at the time of said conveyance, nor has he since had, nor has he now, sufficient property subject to execution to pay his debts, and especially to pay appellee. Prayer, demanding judgment against Isaac Borror, and that the deed from Isaac to appellant be declared void as against the claim of appellee, and that said real estate be subject to sale, etc. Separate and several demurrers were addressed to each paragraph, for want of facts, and overruled.
Appellants then answered in three paragraphs--the first a general denial. The second was to so much of the first and second paragraphs of complaint as sought to foreclose a vendor's lien against the real estate described in the complaint. It admits the ownership and conveyance by the appellee of the real estate, and the encumbrances thereon, and the price to be paid for the same, the manner of payment, and the vendor's lien held by appellee, as set up and averred in said paragraph of complaint. It is then averred that, after said conveyance described in said paragraphs of complaint, said Isaac Borror became the owner of another and additional tract of land, to wit, the west half of the quarter section mentioned in said paragraphs of complaint; that one Roe had and held two mortgages on said entire quarter section; that said Roe in 1894 commenced suit in the Randolph Circuit Court against said Isaac Borror and said appellant Sarah R. Borror to foreclose said mortgages on said entire quarter section; that appellee was made, on his own application, a party defendant, and filed a cross-complaint to foreclose his vendor's lien on the eighty-acre tract of real estate described in said paragraphs of complaint, and asked that his lien might be declared and enforced against said entire quarter section; that such proceedings were had that on the 14th day of July, 1894, said Roe obtained a judgment of foreclosure for $ 3,833.80, and appellee a judgment for $ 1,457.89; that the court ordered and decreed that said Roe's lien was prior and superior to the vendor's lien of appellee, and ordered and directed that the land be sold and the proceeds distributed accordingly; that said judgments and decree were never appealed from, set aside nor reversed; that, after the rendition of said judgments and decree, Isaac Borror, for a valuable consideration, conveyed the real estate described in said paragraphs of complaint to appellant Sarah R. Borror.
The third paragraph of appellants' answer sets out the same facts substantially as averred in the second paragraph, and in...
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