Butler v. Thornburg

• Decision Date: 09 April 1892
• Docket Number: 15,718
• Citation: 30 N.E. 1073,131 Ind. 237
• Parties: Butler et al. v. Thornburg
• Court: Indiana Supreme Court

30 N.E. 1073

131 Ind. 237

Butler et al. v. Thornburg

No. 15,718

Supreme Court of Indiana

April 9, 1892

From the Henry Circuit Court.

The judgment is reversed, with instructions to grant a new trial and for further proceedings in accordance with this opinion.

M. E Forkner, C. S. Hernley and S. H. Brown, for appellant.

J. M Brown and W. A. Brown, for appellee.

OPINION

Miller, J.

This was an action to foreclose a mortgage, brought by the appellee against Rollin T. Butler and Martha Butler.

The defendant Martha Butler filed an answer in several paragraphs, to some of which demurrers were sustained. The plaintiff replied to the remaining paragraphs, and the issues thus joined were submitted to the court for trial, who, at the request of parties, returned a special finding of facts and conclusions of law.

Several errors are assigned, but only two have been discussed by the appellants' counsel in their brief, viz.: That the court erred in sustaining the demurrer to the fourth paragraph of answer; and that the court erred in its conclusions of law from the facts found.

We find, upon examination, that all the evidence that could have been given to support the fourth paragraph of answer was admissible under other paragraphs, and the error, if such it was, in sustaining the demurrer to this paragraph, did not injure the appellant. Rush v. Thompson, 112 Ind. 158, 13 N.E. 665; Landwerlen v. Wheeler, 106 Ind. 523, 5 N.E. 888; Ralston v. Moore, 105 Ind. 243, 4 N.E. 673; Messick v. Midland R. W. Co., 128 Ind. 81, 27 N.E. 419.

A synopsis of the facts found by the court, so far as they are necessary to present the questions of law discussed by counsel, is as follows: The land described in the complaint was owned by said Rollin T. Butler, Barton L. Butler and their mother, Diza Butler, and was encumbered for an amount largely in excess of its value; that the defendant Martha Butler had joined with her husband in the execution of a part of the mortgages resting on the land, for his indebtedness, for an amount in excess of his interest therein; that the plaintiff Thornburg was one of the mortgagees. In February, 1888, Rollin T. Butler purchased of his mother and brother all their interest in the land, in consideration that he would pay and discharge all the mortgage liens thereon. Rollin T. made an agreement with the holders of the mortgages to pay them a certain per cent. of their claims, which they were to receive as full payment. It was agreed between Rollin T. and the plaintiff that plaintiff should furnish a sufficient amount of money to pay off and discharge all said liens, except those owned and held by himself, and that Rollin would, upon the execution of a deed to him, and the payment of said liens by the plaintiff, execute to the plaintiff a mortgage, his wife joining in its execution, for the money so paid by plaintiff in discharge of the liens, and for the full amount of the liens held by plaintiff, amounting in all to the sum of $ 8,320. On the 20th day of February, 1888, the plaintiff, said Rollin T., Barton L. and Diza Butler, and the lien-holders, met for the purpose of executing said contracts, and being so met, said Diza and Barton executed a deed to Rollin for said lands, and the plaintiff furnished the money necessary to pay off all said liens, and did pay off and caused them to be released and discharged of record; that thereupon Rollin T. Butler executed the mortgage in suit to the plaintiff for said sum of $ 8,320; that the defendant, Martha Butler, refused to join in the execution of the mortgage.

From these facts the court held as a conclusion of law that the mortgage was a valid lien on the land, and that said Martha Butler had no interest, inchoate or otherwise, superior to the lien of the mortgage.

It is provided by statute (section 2495, R. S. 1881,) that "Where a husband shall purchase lands during marriage, and shall, at the time of purchase, mortgage said lands to secure the whole or part of the consideration therefor, his widow, though she may not have united in said mortgage, shall not be entitled to her third of such lands as against the mortgagee or persons claiming under him."

The mortgage executed to the appellee represented the whole of the consideration paid by Rollin T. for the conveyance of the...