Brunson v. Henry

• Decision Date: 16 March 1898
• Docket Number: 18,073
• Citation: 52 N.E. 407,152 Ind. 310
• Parties: Brunson et al. v. Henry et al
• Court: Indiana Supreme Court

52 N.E. 407

152 Ind. 310

Brunson et al. v. Henry et al

No. 18,073

Supreme Court of Indiana

March 16, 1898

From the Marion Superior Court.

Affirmed in part, reversed in part.

William V. Rooker, for appellants.

W. P Adkinson and W. Patterson, for appellees.

OPINION

Monks, C. J.

This action was brought by appellees against appellants to foreclose a mortgage. The mortgage was executed by appellant Asher C. Brunson, to Mary Ann Threlkeld, who was the mother of mortgagor, to secure the unpaid purchase money for the real estate described in said mortgage, which money, so secured, was, by the terms of said mortgage, to be paid to the children and grandchildren of the mortgagee named in said mortgage; and also to secure said mortgagee the possession and enjoyment, and free use and control, of said real estate during her life.

This is the second appeal of said cause. On the former appeal the case was reversed, with instructions to sustain the demurrer to the complaint. See Brunson v. Henry, 140 Ind. 455, 39 N.E. 256, where the complaint and the nature of the controversy are fully set forth. On the return of said cause to the court below the demurrer was sustained to the complaint as directed by this court and appellees filed an amended complaint containing the allegations which this court had held were necessary to render the same sufficient. The separate demurrer of said appellant Brunson was overruled to said amended complaint. Said appellant Brunson then filed an answer in seven paragraphs. Appellees' demurrer for want of facts was sustained to the second, third, fifth, sixth, and seventh paragraphs of said answer. Julia A. Brunson, the wife of said appellant Brunson, the mortgagor, who did not join in the execution of said mortgage, also filed an answer. Appellees filed a reply to the answers of Brunson and his wife, and, at the request of said appellants, the court made a special finding of the facts, and stated its conclusions of law thereon, and over separate motions by said appellants, Brunson and wife, for judgment in their favor, and their several motions for a new trial, rendered judgment in favor of the appellees.

The questions raised by the demurrer to the amended complaint, and by the demurrer to the second, third, fifth, sixth, and seventh paragraphs of the separate answer of appellant Asher C. Brunson, were determined against said appellants on the former appeal, and the doctrine there declared is the law of this case, binding alike upon the parties and courts through all stages of the cause thereafter. Board, etc., v. Bonebrake, 146 Ind. 311, 45 N.E. 470, and cases cited. It is insisted, however, by said appellants, that this rule does not apply, because, when the court held the complaint insufficient on the former appeal, the appeal was decided, and if the court went beyond that, and decided any other questions, the same were obiter dicta. The rule is that all questions presented by the record, decided by a court of last resort on appeal, become the law of the case from that time forward, binding upon all the courts and parties, whether the question arises each time in the same manner or not. Board, etc., v. Bonebrake, supra.

Some of the paragraphs of said answer are drawn upon the theory that said appellant can contradict and change, by parol evidence, the terms of the mortgage as to the consideration for which it was executed. On the former appeal, this court, on page 462, held that this could not be done, except upon a plea of non est factum, or an answer alleging a mistake in the mortgage in this respect, with a prayer for reformation. The paragraphs of answer referred to contained no such plea or answer, and are clearly bad, under the law of this case as decided on the former appeal.

It is next insisted that the court erred in overruling appellant Asher C. Brunson's motion for a judgment in his favor on the special finding. It is stated, among other things, in the special finding, that the mortgage mentioned and set out in the complaint was executed by Asher C. Brunson to Mary Ann Threlkeld, which mortgage is copied into said finding, and that said mortgage was executed to secure the payment of the purchase money for the real estate described in said mortgage.

The court stated seven conclusions of law, to each of which Brunson and wife separately excepted. It is first urged that the part of the finding setting forth a copy of the mortgage sued upon is purely evidentiary, and not the finding of an inferential fact, and should be disregarded. It is true that said mortgage was an evidentiary fact, but it was more than evidence; it was also the inferential fact. Rowley v. Sanns, 141 Ind. 179, 187, 40 N.E. 674; Louisville, etc., R. Co. v. Miller, 141 Ind. 533, 550, 37 N.E. 343; Lake Shore, etc., R. Co. v. Peterson, 144 Ind. 214, 220, 221, 42 N.E. 480. In Rowley v. Sanns, supra, this court on page 187 said: "The provisions of the will inserted in the special finding were evidence it is true, but they were also more than evidence, they were the ultimate and highest facts or inferential facts upon the issues they tended to prove." The construction to be placed upon said mortgage was not to be stated in the finding of facts, but in the conclusions of law. There may be cases where it is not necessary to set forth in the finding of facts a copy of the mortgage or other contract which is the foundation of the action or defense, but in this case it was proper to do so.

Objections are also urged to the facts found in regard to the children of Jane Henry, and the settlement of the estates of the deceased children, and it is claimed that they are not sufficient to entitle them to a judgment and foreclosure of said mortgage. We are not required to determine this question, because the same is not presented by any assignment of error, or otherwise.

It is next urged that the motion for judgment in favor of the appellant should have been sustained because there was no finding as to the debts of Mary Ann Threlkeld. It was not necessary for appellees to prove, or for the court to make, any finding as to the debts of Mary Ann Threlkeld, the mortgagee.

Appellant Julia A. Brunson, wife of Asher C. Brunson, the mortgagor insists that the court erred in overruling her motion for a...