Cressey v. Webb

• Decision Date: 25 November 1861
• Citation: 17 Ind. 14
• Parties: Cressey and Others v. Webb
• Court: Indiana Supreme Court

17 Ind. 14

Cressey and Others v. Webb

Supreme Court of Indiana

November 25, 1861

APPEAL from the Marion Common Pleas.

The judgment is reversed, with costs Cause remanded.

W Wallace and Benjamin Harrison, for the appellants.

D McDonald and J. Milner, for the appellee.

OPINION

Davison J.

This was an action by the appellee, who was the plaintiff, against the appellants, to foreclose a mortgage on lot No. 71, in block No. 40, in Woods' addition to the city of Indianapolis. The mortgage bears date, May 2, 1856; was executed by Sarah Bishop, now Sarah Cressey--and her then husband, John Bishop, to one Aaron W. Banghart, to secure the payment of $ 400, with interest, on or before May 2, 1857, and was assigned by the mortgagee to John Hoss, who assigned it to the plaintiff. It is averred in the complaint, that on November 10, 1856, John Bishop died, leaving Sarah Bishop, his widow, and Lewis Bishop, his heir at law; that Geo. Durham was duly appointed administrator of the decedent's estate, and that Sarah, the widow of the deceased, is now intermarried with William Cressey. And further, it is averred that Sarah had, at the date of the mortgage, and still has, the legal title, in fee simple, to the mortgaged premises. Plaintiff demands judgment for $ 500, also a decree of foreclosure, &c., and an order to sell the lands described in the mortgage, for the payment of such judgment, &c.

The answer of Sarah Cressey contains a general denial, and three special defenses. To the 2d, 3d and 4th defenses, demurrers were sustained. Geo. Durham, administrator of the estate of John Bishop, also filed his answer, which, upon demurrer, was adjudged insufficient; and Lewis Bishop, being a minor, answered by his guardian ad litem. The issues were submitted to the Court, who, upon final hearing, rendered a judgment and decree in accordance with the prayer of the complaint. As the facts set forth in the second defense are mainly relied on, as an effective bar to the action, they alone will be noticed. They are these: On June, 22, 1856, John Bishop, the then husband of Sarah Cressey, and Aaron W. Banghart, the mortgagee, entered into an agreement, in writing, whereby he, Bishop, sold to Banghart lot No. 70, in block No. 40, in Woods' addition to the city of Indianapolis, for $ 800; of which, $ 400 was to be paid on March 1, 1856, and the residue on March 1, 1857. Upon full payment of the first installment, Bishop was to make and deliver to Banghart, a deed in fee simple, and the residue of the purchase money was to be secured by a mortgage on the premises. Pursuant to the sale thus made, Banghart took possession of the property, but did not pay, or offer to pay, on March 1, 1856, as stipulated in the agreement; nor did Bishop, at that time, deliver or tender to him a deed for the premises. Banghart continued in such possession until May 2, 1856, when he paid on the agreement $ 400. At that date, the agreement was so modified as to extend the time of making said deed, to May 2, 1857, but in all other respects, it was to remain unaltered. And to secure the making of such deed, the mortgage in suit, was, at its date, made to Banghart; but, at the same time, he, Banghart, executed a written instrument, which is, in effect, as follows:

"Whereas, Sarah Bishop, and John Bishop, her husband, have this day executed to me a mortgage on lot No. 71, in block No. 40, in Woods' addition, &c., to secure the payment of $ 400, with interest, on the 2d of May, 1857. Now, if the said Sarah and John Bishop shall make, or cause to be made and delivered to me, a good and sufficient deed for lot No. 70, in block No. 40, in Woods' addition, &c., on or before the 2d of May, 1857, then I agree, and am bound, to deliver up said mortgage to be canceled. But, if the deed for lot No. 70 shall not be given, as above specified, then the right to foreclose said mortgage shall be complete, and this instrument is to be void, &c. And if said Sarah and John Bishop shall pay the $ 400, with interest, as in the mortgage specified, and fail to make the deed, as before stipulated, then they are to pay me the value of the improvements which I may make on said lot, now occupied by me, to be determined by disinterested persons."

"Dated May 2, 1856.

Signed, "Aaron W. Banghart."

It is averred that Bishop and his wife were not, nor was either of them indebted to Banghart, at the...