Bowen v. Ratcliff
| Citation | 140 Ind. 393,39 N.E. 860 |
| Parties | BOWEN et al. v. RATCLIFF. |
| Decision Date | 28 February 1895 |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from circuit court, Carroll county; A. W. Reynolds, Judge.
Action by Abner Ratcliff, assignee, against Abner T. Bowen and others. From a judgment for plaintiff, defendants appeal. Reversed.
Pollard & Pollard and Winfield & Taber, for appellants. Wm. C. Smith, Geo. W. Julien, and M. A. Ryan, for appellee.
Harvey J. Ball made an assignment under the law to the appellee, Abner Ratcliff, his assignee. Ratcliff, as assignee, on the 1st day of January, 1894, filed his petition in the Carroll circuit court askingfor the sale of the following described real estate in Carroll county, Ind., to wit: “The northwest fractional quarter of section thirty-one, township twenty-four north, range one west, containing 147 12/100 acres of land.” He made the appellants, Abner T. Bowen, John A. Cartwright, and Edward W. Bowen, a firm doing business under the name and style of A. T. Bowen & Co., and a firm doing business under the name and style of the Citizens' Bank, defendants to his petition; alleging in his petition that Harvey J. Ball had executed a mortgage to the Citizens' Bank of Delphi, Ind., bearing date of the 4th day of October, 1892, for the sum of $1,500, with 8 per cent. interest; that the same became due on the 4th day of September, 1893, and one mortgage executed by Harvey J. Ball and wife to the said A. T. Bowen & Co., bearing date March 2, 1893; that the said mortgage executed by Harvey J. Ball and wife to said A. T. Bowen & Co. does not set forth the amount secured by said mortgage, and your petitioner does not know what said mortgage secures; that the said Citizens' Bank and the said A. T. Bowen & Co. also held a large amount of notes which were assigned to them by the said Harvey J. Ball as collateral security. And he makes the said A. T. Bowen & Co.'s Bank and the Citizens' Bank parties hereto, that the amount of their liens may be ascertained and fixed by the court; and that he be authorized to pay the amount found due the said Citizens' Bank and the said A. T. Bowen & Co., out of the proceeds of said sale. Other lien holders were also made parties, and the petitioner asks the court that the defendants, including the appellants, be required to answer the petition, and to set up the amounts of their liens. The appellants appeared, and filed answer. The substance of the answer is: That the appellants held several notes signed by the said Harvey J. Ball, with others: One for $1,434.98, dated February 21, 1893, due one month after date, upon which have been paid different amounts; two notes for $200, each dated July 1, 1889, due on the 1st of January, after date, which had been assigned in writing to the appellants; one note dated March 10, 1893, due two months after date, for $840.60, with interest; one note dated December 22, 1890, due one year after date, for $461, with interest, at the rate of 8 per cent.; one note dated March 12, 1890, due seven months after date, for $147.87, with interest; one note dated March 10, 1893, due in three months after date, for $1,000, with interest, upon which some payments had been made; one note dated November 19, 1888, due in nine months from date, for $100, assigned to the appellants in writing, with attorney's fees; one note dated January 2, 1892, due on the 1st day of September, 1892, for $35, with interest, and assigned to the appellants; one note dated January 2, 1892, due the 1st day of January, 1893, for $35, with interest, and assigned to the appellants. That all of these notes were secured by a mortgage upon the land described in the petition, executed by the said Harvey J. Ball and Eunice A. Ball, his wife, on the 2d day of March, 1893. The description in the mortgage is as follows: “Harvey J. Ball and Eunice A. Ball, his wife, of Carroll county, state of Indiana, mortgage and warrant to A. T. Bowen & Company, of Carroll county, in the state of Indiana, the following real estate, in Carroll county, in the state of Indiana, to wit: [describing the land;] and to secure any notes that may be given for a renewal of said notes, or any part thereof, or for interest thereon, and any future advances or other indebtedness due, or that may hereafter become due, the mortgagees or either of them, from the mortgagors or either of them, to the amount of $10,000.00.” The answer avers that the appellants admit they have and hold a lien on the real estate described in said petitioner's petition in the sum of $3,999.90; that the same consists of promissory notes made, executed, and delivered by the said Harvey J. Ball upon...
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In Re Kraft LLC
...Co. v. First Merchants National Bank of Michigan City, 169 Ind.App. 406, 349 N.E.2d 219, 222 (1976) [ citing, Bowen v. Ratcliff (1895), 140 Ind. 393, 397, 39 N.E. 860, 862]. The purpose of requiring a reasonably certain description of the debt is to preclude the parties from substituting ot......
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...here the mortgage ascertained the indebtedness. (emphasis supplied) The foregoing rules were expanded in Bowen, et al. v. Ratcliff, Ind. 140 Ind. 393, 39 N.E. 860, 861-862 (1895), in which the Indiana Supreme Court expressed the underlying policy for the requirement of a sufficient descript......
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