Brunson v. Henry

Decision Date11 December 1894
Docket Number16,849
Citation39 N.E. 256,140 Ind. 455
PartiesBrunson et ux. v. Henry et al
CourtIndiana Supreme Court

From the Marion Superior Court.

Reversed for the error in overruling the demurrer to the complaint, with directions to the trial court to sustain the demurrer, and for further proceedings in accordance with this opinion.

W. V Rooker, for appellants.

W. P Adkinson, for appellees.


Dailey, J.

This was an action commenced by the appellees against the appellants to foreclose a mortgage executed for the unpaid purchase-money of certain real estate therein described. It was given by the appellant, Asher C. Brunson, under the following circumstances: In 1868 Mary Ann Threldkeld, being a widow, and the owner in fee-simple of a farm in Marion county, Indiana, on which she then resided, conveyed the same to her son, Asher C. Brunson, by a deed of general warranty. When she made the conveyance her prospective heirs were Asher C. Brunson, Noah H. Brunson, Martha Erisman, Charlotte Whitesell, and the children of Jane Henry, deceased, to wit: Clay Henry, Thomas J. Henry and Virginia Henry.

At the time of this transaction the grantor was free from debt, in good health, and not enfeebled by age, and was desirous of having a full and fair settlement of all the family matters and property rights. She made these facts known to her children and grandchildren, and expressed the desire that they should enjoy the real estate at her death. This was considered and favorably received by the members of the family, who concluded that the real estate was worth $ 1,000.

Thereupon Asher C. Brunson made it known that he was willing to pay one thousand dollars to the children and heirs at the widow's death, he retaining his part of said purchase-money, payable as follows: To the heirs of Jane Henry the sum of $ 50. To his brother Noah the sum of $ 200. To his sisters, Martha Erisman and Charlotte Whitesell, each, the sum of $ 200, and to retain for his share the residue $ 350.

This proposition was accepted by all the parties concerned, and the widow made the deed to him pursuant thereto, he agreeing to execute a mortgage to secure the payment of such indebtedness.

It afterward developed that the grantee did not make the mortgage, as he had agreed. Upon learning this fact the widow and beneficiaries made complaint, and in 1873, compelled performance of the contract on his part, by the execution of the mortgage now in suit, which contains the following recital:

"Whereas, heretofore, to wit, on the 25th day of September, 1868, Mary Ann Threldkeld sold and conveyed by deed of that date to Asher C. Brunson the following real estate, etc." And "Whereas, said deed was made upon the following agreement and understanding to wit, said Mary Ann Threldkeld was to have and retain the use, rents and possession and control of the property conveyed for and during her natural life, for her sole use and support and, at her death, the sum of one thousand dollars (no part of which has been paid) was to be paid by said Asher C. Brunson as follows, etc." "Now, therefore, to secure the said Mary Ann Threldkeld the full use, possession and control, and rents, issues and profits thereof, etc.," "and to secure the payment of the several sums of money hereinabove mentioned to the children and grandchildren of Mary Ann Threldkeld," the said Asher C. Brunson hereby mortgages said property.

It thus clearly appears, from the admissions contained in this mortgage, that it was given in pursuance of an agreement made at the time the land was purchased, and constituted a family settlement and adjustment of all the property rights between the widow and those who were then the objects of her bounty.

About two years after the mortgage was duly recorded, Asher C. Brunson and his mother, without the knowledge or consent of the other beneficiaries, attempted a revocation and rescission of said mortgage, and to effectuate said purpose there was executed by Mrs. Threldkeld what purported to be her last will and testament, in which she provided that "all her just debts be paid as soon as possible" after her death, and subject to the charge of those debts the will vested in her son, Asher C. Brunson, absolutely and free from the lien of the mortgage, the farm she had conveyed him a number of years before, the terms of the will in this respect being:

"Item 2. I hereby will, devise and bequeath to my son, Asher C. Brunson, all the estate, real and personal, of which I shall be the owner, legally or equitably, at the time of my death, to be owned and held by my said son, his heirs and assigns forever, absolutely in fee simple, so far as the same shall not be required to pay my debts provided in the will."

When this will was executed the appellants, who were husband and wife, were residing upon this land enjoying its rents and profits, and the testatrix was living with them as a member of the common family. During all these transactions, and until the death of Mrs. Threldkeld, they occupied the farm described in the mortgage. Seventeen years after the making of the deed the mother died, and three years later Charlotte Whitesell departed this life, leaving as her only heirs at law the appellees, Philip Whitesell, Mary McGehe, Victoria C. Frasier, Leuviene M. Whitesell and Charles H. Whitesell.

An examination of the record reveals the fact that in the complaint, which was assailed by a demurrer, the children of Charlotte Whitesell join as plaintiffs. But it contains no allegation, that there are no debts owing by her estate, and that no letters of administration have ever been granted thereon. Complaints of the class now under consideration are defective without such averments. Walpole's Admr., v. Bishop, 31 Ind. 156; Ferguson v. Barnes, 58 Ind. 169; Finnegan v. Finnegan, 125 Ind. 262, 25 N.E. 341, and cases cited.

In other respects it is a plain statement of the facts constituting the cause of action, based on the mortgage, a copy of which is filed as an exhibit therewith.

In the absence of such allegations, the complaint does not state facts sufficient to constitute a cause of action. The presumption of law would be that Charlotte Whitesell died intestate, and the right to sue does not belong to the heirs in the first instance, but to the executor or administrator. It is well settled by this court that in an action in the names of several persons the complaint must show a cause of action in favor of all or it will be subject to demurrer for want of facts. Lipperd v. Edwards, 39 Ind. 165; Maple v. Beach, 43 Ind. 51; Parker v. Small, 58 Ind. 349; Harris v. Harris, 61 Ind. 117; Martin, Trustee, v. Davis, 82 Ind. 38; Brumfield v. Drook, 101 Ind. 190; Brown, Exr., v. Critchell, 110 Ind. 31, 7 N.E. 888.

In this case the complaint, not being good as to the heirs of Mrs. Whitesell, it is for that reason bad as to all, and the demurrer thereto should have been sustained.

To this complaint, Asher C. Brunson filed six paragraphs of answer, the last being in general denial.

The fourth paragraph pleaded that in 1868, when he acquired the land by deed from his mother, there was no agreement that he should execute a mortgage to her; that five years later, when he made the mortgage, the act was voluntary on his part, and he received no consideration therefor.

To this answer a demurrer was sustained for want of sufficient facts, and the defendant reserved an exception. The other separate answers of said Asher were held good. The defendant, Julia A. Brunson, filed a separate answer in two paragraphs to the complaint.

There is no question before the court as to the first of these.

In the second paragraph of answer Mrs. Brunson alleged that at the date of the deed, in 1868, to her husband, and at the time of his mortgage, in 1873, she was, and ever since has been, and now is, a married woman, the wife of her codefendant; that when the deed was executed there was no agreement that her husband should make a mortgage, and no new consideration to her husband therefor; that she did not join in the execution of the mortgage, wherefore she demanded the protection of her rights.

A demurrer was sustained to this paragraph for want of sufficient facts, to which ruling she, at the time, excepted.

It is clear that there was no error in this ruling. It will be observed that the fourth paragraph of the separate answer of Asher, and the second paragraph of the separate answer of Julia, to the complaint to enforce the mortgage, seek to contradict its plain terms and unequivocal language, and this can not be done under the well settled rules of pleading.

To the remaining paragraphs of answer, the plaintiffs replied:

1st. General denial.

2d. Knowledge of the sale of the land in 1868 by Mrs. Threldkeld, and the terms of such sale and the acceptance thereof by the heirs before revocation.

3d. As to the children of Jane Henry and Charlotte Whitesell, they were minors when the pretended revocation was made.

4th. That Asher C. Brunson had been fully paid before the death of Mary Ann Threldkeld, for all claims set up in his answer for support, care, attention and funeral expenses of Mrs. Threldkeld; that this payment was made by his retaining to his own use the $ 350 which the mortgage provided he should retain out of the $ 1,000 mentioned therein, and further, "that Asher C. Brunson also took charge of said land several years before the death of Mrs. Threldkeld and occupied and used the same and applied the rents thereof to his own use, which were of a value more than sufficient to liquidate all the claims he has set up against her for support, attention, nursing and funeral expenses."

This paragraph also attacked the rescission of the contract and mortgage because of fraud...

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