Crawford v. Hazelrigg

• Citation: 117 Ind. 63,18 N.E. 603
• Parties: Crawford et ux. v. Hazelrigg.
• Decision Date: 26 November 1888
• Court: Supreme Court of Indiana

117 Ind. 63

18 N.E. 603

Crawford et ux.

v.Hazelrigg.¹

Supreme Court of Indiana.

November 26, 1888.

Appeal from circuit court, Decatur county; S. A. Bonner, Judge.

Action to foreclose a mortgage brought by Charles Hazelrigg against William R. Crawford and Emma P. Crawford, his wife. Judgment for plaintiff, and defendants appeal.

Miller & Gavin, for appellants. Ewing & Ewing, for appellee.

Howk, C. J

This was a suit by appellee, Hazelrigg, as plaintiff, to foreclose a certain indemnifying mortgage alleged to have been executed to him by the appellants, William R. and Emma P. Crawford, on certain parcels of real estate in Decatur county, Ind. The mortgage sued on was dated and acknowledged on the 23d day of October, 1877, and was recorded in the proper recorder's office on the 31st day of August, 1878. It was stipulated in such mortgage that it was given “to secure and hold the said Hazelrigg harmless from all liability as indorser on a certain promissory note for the sum of $2,300, dated October 1, 1877, due in four months after date, payable to the Citizens' National Bank of Greensburgh, Ind., with 10 per cent. interest from maturity, and providing for 5 per cent. attorney's fees, signed by the said Will. R. Crawford, ‘Hazelrigg Carriage Company,’ ‘Hazelrigg Carriage Works,’ Newton Hazelrigg, and J. F. Hazelrigg, and indorsed by the said mortgagee; and the mortgagors expressly agree to pay the sum of money above secured, and hold the said mortgagee harmless therefrom, without relief from valuation or appraisement laws.” In his complaint plaintiff alleged, among other things, that at the date of said note and mortgage he was, and at all times since had been, solvent and able to pay said debt, and that the other parties to said note had wholly failed to pay the same, or any part thereof, although it had become due in four months after its date; that at the commencement of this suit all the parties to said note were insolvent, except the plaintiff and defendant William R. Crawford; that said Crawford had left the state of Indiana, and was then a resident of the state of Ohio, and had no property within this state subject to execution, except the last two parcels of real estate described in said mortgage; and that the parcel of real estate first described in said mortgage was incumbered by and had been sold to satisfy a mortgage prior to the mortgage sued on herein; wherefore, etc. the case was put at issue and submitted to the court for final hearing, and at defendants' request the court made a special finding of facts herein, and thereon stated its conclusion of law in favor of the plaintiff. Over defendants' exceptions to its conclusion of law the court rendered its final judgment for plaintiff, and decreed the foreclosure of the mortgage in suit, etc. In this court, defendant Emma P. Crawford has separately assigned errors, which call in question the rulings of the trial court in sustaining plaintiff's demurrers to each of the first and second paragraphs of her separate answer. In their brief of this cause defendants' learned counsel have discussed together the questions presented here by these alleged errors, and we will consider and decide such questions in the same manner. In the first paragraph of her separate answer, defendant Emma P. Crawford alleged that she then was, as she was at and prior to the execution of the mortgage sued on, a married woman, being the wife of her co-defendant, William R. Crawford; that no part of the indebtedness said mortgage was given to secure was her individual debt, or the individual debt of her said husband, but was the debt of a firm of which he was a member; that after the execution of said mortgage, to-wit, on the ------ day of ------, 187-, the note described in such mortgage was renewed by the several makers thereof, except John F. Hazelrigg, who, by and with the plaintiff's consent, and without the knowledge and consent of said defendant, failed to sign said note as a maker,-wherefore she said that, the debt having been altered and changed without her consent, she was released; and she asked that the title to her interest in said real estate might be quieted. In the second paragraph of her separate answer said defendant alleged substantially the same facts as in the first paragraph, except that she averred in such second paragraph that after the execution of the mortgage sued on the payment of the note intended to be secured thereby was, for a valuable consideration, and without her knowledge and consent, by the plaintiff and her co-defendant, and the other members of the firms of the “Hazelrigg Carriage Company” and the “Hazelrigg Carriage Works,” extended for the period of 90 days.

The fundamental question presented for our decision by the alleged errors of the court below in sustaining plaintiff's demurrers to the first and second paragraphs of Emma P. Crawford's separate answer herein may be thus stated: Where a married woman has joined her husband in the execution of a mortgage on his real estate, to indemnify and save harmless an indorser or surety upon the note or debt of her husband, or of him and others, in the event of a suit to foreclose such mortgage, may she avail herself of a valid legal or equitable defense to protect or prevent the sale of her inchoate interest in such real estate, should she survive her husband, or should his title to the real estate become absolute and vested in the purchaser at a judicial sale thereof under the mortgage? We are of opinion that this question must be answered in the affirmative. It is true, as we have often decided, that where a wife joins with her husband in the execution of a mortgage on his real estate, such mortgage, as to the wife, is not a “contract of suretyship,” within the prohibition of section 5119, Rev. St. 1881, and is not void as to her for that reason. Leary v. Shaffer, 79 Ind. 567;Dodge v. Kinzy, 101 Ind. 102;Cupp v. Campbell, 103 Ind. 213, 2 N. E. Rep. 565; Tennison v. Tennison, 114 Ind. 424, 16 N. E. Rep. 818. But in such case we have also held-and correctly so, we think-that the wife occupies as to her inchoate interest in the mortgaged real estate of her husband a relation so far analogous to that of a surety as that she was entitled in equity to an order directing that the two-thirds of the mortgaged real estate should be first sold to satisfy the debt secured by the mortgage. Leary v Shaffer, supra. In the case last cited it was held that the inchoate interest of the wife in the lands of her husband was “a substantive right, carrying with it some equities,” and that the equities were “of strength sufficient to entitle her to have an order incorporated in the decree directing an offer to be first made of the husband's interest in the land.” It has always been held by this court that the provisions of our statutes for the...