Corbey v. Rogers

• Decision Date: 03 February 1899
• Citation: 152 Ind. 169,52 N.E. 748
• Parties: CORBEY et al. v. ROGERS.
• Court: Indiana Supreme Court

152 Ind. 169

52 N.E. 748

CORBEY et al.

v.ROGERS.

Supreme Court of Indiana.

Feb. 3, 1899.

Appeal from circuit court, Vigo county; James E. Piety, Judge.

Action by Benjamin F. Rogers, Jr., against William Corbey and another. From a judgment for plaintiff, defendants appeal. Affirmed.I. N. Pierce and Wm. A. Keerns, for appellants. G. W. & J. H. Kleiser, for appellee.

MONKS, C. J.

This action was brought by appellee against appellants to foreclose a mortgage. Appellant Corbey filed an answer in three paragraphs. A demurrer was sustained to the third paragraph. The cause was tried, and judgment rendered foreclosing said mortgage against appellants.

The errors assigned by appellant Corbey, and not waived by a failure to argue the same, are: “(1) The court erred in sustaining the motion of appellee to strike out certain portions of the third paragraph of the separate answer of appellant Corbey; (2) the court erred in sustaining appellee's demurrer to the third paragraph of answer.”

It is well settled that a motion to strike out a part or all of a pleading can only be made a part of the record by a bill of exceptions. Dudley v. Pigg, 149 Ind. 363, 369, 48 N. E. 642, and cases cited; Insurance Co. v. Johnson, 46 Ind. 315, 317, and cases cited. The clerk has copied into the transcript what purports to be a motion to strike out parts of the third paragraph of answer. This did not, however, make it a part of the record. Dudley v. Pigg and Insurance Co. v. Johnson, supra. The clerk has also copied into the transcript a bill of exceptions, duly signed by the judge, showing the filing of a motion to strike out parts of the third paragraph of answer, and that the same was sustained; but at the place in the bill of exceptions marked “Here insert,” where the clerk should have copied the motion to strike out, he has referred to the page of the transcript where the motion may be found. This did not make the motion a part of the record. Insurance Co. v. Johnson, supra; Elliott, App. Proc. §§ 818, 819. The parts of the paragraph to which the motion referred are not in any way identified by the bill of exceptions. No question is presented, therefore, concerning the action of the court in sustaining said motion. We do not think the court erred in overruling the demurrer to the third paragraph of answer.

It is alleged in the complaint that one Claiborne Hedges executed the note and mortgage sued upon, February 16, 1883, the note being payable 30 days after date; that said Hedges died intestate on December 16, 1892, and left surviving him his widow, the appellant Ellen Hedges, and that no letters of administration have been granted on his estate, and “the defendant Corbey claims to have some interest in said estate, but, if he has any interest, it is subject to plaintiff's mortgage lien, and said defendant therefore is made a defendant to answer as to his interest so claimed.” It is the rule in this state that such a complaint challenged the appellant Corbey to set up his claim, if any, superior to the mortgage, and on failure to do so he is precluded by the judgment and decree from ever after claiming any right in the mortgaged property superior to the mortgage so foreclosed. O'Brien v. Moffitt, 133 Ind. 660, 665-667, 33 N. E. 616, and cases cited; Woollen v. Wishmier, 70 Ind. 108, 110, 111;Woodworth v. Zimmerman, 92 Ind. 349;Craighead v. Dalton, 105 Ind. 72, 4 N. E. 425. The third paragraph of the answer of the appellant Corbey set up the 10-years statute of limitation as a bar to the foreclosure of said mortgage, but in no way set forth the interest he claimed in the real estate, or that he was a grantee or mortgagee of Hedges, who executed the note and mortgage sued upon, or otherwise held under him, or that he owned or claimed any interest whatever in said real estate or any part thereof. The general rule is that the right to plead the statute of limitations is a personal privilege, but persons standing in the place of the party having the personal privilege, such as his grantees, mortgagees, executors, administrators, trustees, heirs, devisees, or other persons holding under him, may set up such a defense. 1 Wood, Lim. Act. pp. 96, 97; Busw. Lim. 527; 13 Am. & Eng. Enc. Law, 709, 710; Riser v. Snoddy, 7 Ind. 442, 445, 446;Cole v. Lafontaine, 84 Ind. 446, 449;Lord v. Morris, 18 Cal. 482, 490, 491;Grattan v. Wiggins, 23 Cal. 16;Baldwin v. Boyd, 18 Neb. 444, 448, 449, 25 N. W. 580, and cases cited; Mitcheltree's Adm'r v. Veach, 31 Pa. St. 455; Woodyard v. Polsley, 14 W. Va. 211; Werdenbaugh v....