Dodge v. Kinzy

• Decision Date: 23 January 1884
• Docket Number: 11,181
• Citation: 101 Ind. 102
• Parties: Dodge v. Kinzy et ux
• Court: Indiana Supreme Court

101 Ind. 102

Dodge v. Kinzy et ux

No. 11,181

Supreme Court of Indiana

January 23, 1884

Rehearing Date: June 27, 1885.

Reported at: 101 Ind. 102 at 107

From the Elkhart Circuit Court.

The judgment is affirmed, with costs.

H. C Dodge, O. Z. Hubbell, T. A. Hendricks, C. Baker, O. B. Hord A. W. Hendricks, A. Baker and E. Daniels, for appellant.

J. M. Vanfleet, for appellees.

OPINION

Howk, J.

This suit was brought by the appellant to foreclose a certain mortgage, alleged to have been executed by the appellees to one Abram Upp, on February 23d, 1882, on certain real estate, particularly described, in the city and county of Elkhart, and to collect the debt claimed to have been secured by such mortgage. The appellees jointly, and each of them separately, demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. Before the court made any ruling upon either of these demurrers, the appellees jointly filed their cross complaint against the appellant, wherein they asked that the mortgage, described in appellant's complaint, might be cancelled of record, and that their title to the mortgaged real estate might be quieted. To this cross complaint the appellant's demurrer, for the want of sufficient facts therein to constitute a cause of action, was overruled by the court, and, at the same time, the court sustained the appellees' demurrers to the appellant's complaint. Exceptions were saved by the appellant to each of the court's rulings adverse to him, and declining to amend his complaint or answer the cross complaint, the court rendered judgment against him, in appellees' favor, in accordance with the prayer of their cross complaint.

The facts of this case, as stated in the complaint and cross complaint, were substantially as follows: The real estate described in the mortgage, which the appellant sought to foreclose in this action, was conveyed on the 27th day of July, 1878, to the appellees, then and ever since husband and wife, by a deed regular in form, wherein they were designated as the grantees by the following description, namely: "To John S. Kinzy and Elizabeth A. Kinzy, husband and wife." On the 23d day of February, 1882, the appellee John S. Kinzy borrowed of Abram Upp the sum of $ 1,000, and gave his note therefor, due in three years after its date, and, on the same day, both the appellees, John S. Kinzy and Elizabeth A., his wife, executed the mortgage in suit upon the real estate so owned and held by the mortgagors, under the aforesaid deed of July 27th, 1878. Afterwards John S. Kinzy became insolvent, and, on April 25th, 1882, executed a chattel mortgage to said Abram Upp, as an additional security for the said sum of $ 1,000, previously borrowed of said Upp by the said John S. Kinzy; and it was then agreed between him, Kinzy, and Upp, that the said sum of $ 1,000, evidenced by the note above described, should at once become due. Afterwards certain other creditors of John S. Kinzy commenced suits against him, and, on April 28th, 1882, sued out orders of attachment in such suits, which became and were liens on the goods and chattels theretofore mortgaged as aforesaid by the said Kinzy to Abram Upp, as such additional security for the money so borrowed of him by the said John S. Kinzy. On his own application Upp was made a party to such suits in attachment, and such proceedings were thereafter had therein as that it was ordered by the court that the said sum of money, so borrowed by the said John S. Kinzy, should be repaid to Abram Upp out of the proceeds of the mortgaged goods and chattels so attached as aforesaid, and that he, Abram Upp, should thereupon assign his real estate mortgage to the appellant, Henry C. Dodge, as trustee for such attaching creditors of John S. Kinzy, all of which was done accordingly. In their respective suits the attaching creditors severally recovered personal judgments against the said John S. Kinzy for the amount of his debts, due them respectively.

It might be said, perhaps, that the real estate mortgage was only an incident of the debt of John S. Kinzy secured thereby, and that, as it appeared that such debt was fully paid off and satisfied, the mortgage was functus officio and extinguished, and nothing passed by the assignment thereof to the appellant as trustee. But the appellees' counsel, in his brief of this cause, rests the defence to appellant's action upon a single point, and, therefore, any other defence which might suggest itself or be suggested will be regarded as expressly waived. Counsel says: "I make no question about the right of the appellant to maintain this suit, in the form and at the time it was brought. The only question I do make is that the mortgage in suit was and is void."

This is the question we will briefly consider and decide.

It will be seen, from our statement of the facts of this case, that the land described in the mortgage in suit, more than three years prior to the date of such mortgage, was conveyed to the appellees, then and since husband and wife, by a deed regular in form, wherein they were thus designated as the grantees, to wit: "To John S. Kinzy and Elizabeth A. Kinzy, husband and wife." Where land is thus conveyed to husband and wife, the estate taken by the grantees is governed by the common law rule, which has never been changed by any statute in this State, but, on the contrary, is expressly recognized in sections 2922 and 2923, R. S. 1881, in force since May 6th, 1853. The rule is thus stated in Davis v. Clark, 26 Ind. 424: "At common law, if an estate is granted, as in this case, to a man and his wife, they are neither properly joint tenants, nor tenants in common, for husband and wife being considered one person in law, they can not take the estate by moieties, both are seized of the entirety per tout and not per my. Neither can dispose of any part of the estate without the assent of the other, but the whole must remain to the survivor." Accordingly, it was held in the case cited, that where land was thus conveyed to husband and wife, the husband did not take an estate in such land which he could convey or encumber by his own act or deed without the assent of the wife, or which could be subjected to sale on an execution against the husband. Such has been the uniform line of decision in this court upon the question under consideration. Bevins v. Cline, 21 Ind. 37; Arnold v. Arnold, 30 Ind. 305; Chandler v. Cheney, 37 Ind. 391; Jones v. Chandler, 40 Ind. 588; Anderson v. Tannehill, 42 Ind. 141; McConnell v. Martin, 52 Ind. 434; Hulett v. Inlow, 57 Ind. 412; S. C., 26 Am. R. 64; Lash v. Lash, 58 Ind. 526; Patton v. Rankin, 68 Ind. 245; S. C., 34 Am. R. 254; Edwards v. Beall, 75 Ind. 401; Carver v. Smith, 90 Ind. 222; S. C., 46 Am. R. 210; Morrison v. Seybold, 92 Ind. 298.

Certainly, there has never been an express repeal, by direct legislation, of the common law rule governing the conveyances of real estate to husband and wife. Repeals by implication are not favored in law, and when the courts hold that any statutory provision is repealed by implication, it is done because the legislative intent to supersede such provision is clearly manifested in the subsequent legislation. So, also, a statute in derogation of the common law must be strictly construed. Water Works Co. v. Burkhart, 41 Ind. 364; Cruse v. Axtell, 50 Ind. 49, 58; Haas v. Shaw, 91 Ind. 384; S. C., 46 Am. R. 607.

Under the common law rule, it is clear that at the date of the mortgage in suit, John S. Kinzy alone could not have executed a valid mortgage on the real estate described therein. But perhaps, the mortgage executed by him and his wife would have been valid and binding on each of them under the rules of the common law, if the wife was not, at...