Druckamiller v. Coy

• Decision Date: 17 November 1908
• Docket Number: 6,237
• Citation: 85 N.E. 1028,42 Ind.App. 500
• Parties: DRUCKAMILLER v. COY
• Court: Indiana Appellate Court

85 N.E. 1028

42 Ind.App. 500

DRUCKAMILLER v. COY

No. 6,237

Court of Appeals of Indiana

November 17, 1908

From Elkhart Circuit Court; James S. Dodge, Judge.

Action by Jemima Coy against John C. Druckamiller. From a judgment for plaintiff, defendant appeals.

Reversed.

L. W Vail, for appellant.

Deahl & Deahl and North & Wagner, for appellee.

OPINION

HADLEY, J.

Appellee sued appellant upon the following instrument in writing:

"For a valuable consideration I promise to pay to Jemima Coy, at Elkhart county, in the State of Indiana, $ 500 on the following conditions, to wit: Whereas David Coy and said Jemima Coy have this day executed to John C. Druckamiller a mortgage on sixty acres of land [describing it], to secure said Druckamiller as surety for said David Coy; and whereas it is agreed and understood that said real estate mortgaged is of greater value than necessary to secure said Druckamiller, and in consideration of said Jemima Coy's joining in and signing said mortgage; now, if said Druckamiller, his administrators, executors or assigns, should foreclose said mortgage and sell said real estate on such foreclosure, and the title thereby pass from said Coys, then only shall said Druckamiller be liable for the payment of said amount, and should said mortgage never be foreclosed, and said real estate never be sold on said foreclosure, then no amount shall ever be due on this instrument and this instrument to be without any interest thereon until said real estate is sold as aforesaid; the same is to be without relief from valuation and appraisement laws."

The complaint averred foreclosure of the mortgage and sale thereunder, and the passing of the title of said real estate to appellant. To this complaint appellee answered (1) by general denial; (2) admitting the averments of the complaint as to the execution of the instrument sued on, the foreclosure of the mortgage and sale of the lands, but averring that at the time of the execution of the mortgage to appellant there was an equity in said lands above the amount of said mortgage sufficient to justify the payment of the $ 500, as agreed; that afterwards the husband of appellee became indebted in the sum of $ 515, and on account of his failure to pay the interest on said indebtedness, was about to be sued thereon, which would have resulted in depriving the family of their goods and chattels, and, at the solicitation and request of appellee and her husband, appellant secured the payment of said indebtedness; that, to induce him so to secure said indebtedness, appellee and her husband joined in a second mortgage to appellant upon the same land covered by the mortgage referred to under said instrument; that, on account of the default of said husband, appellant was obliged to and did pay all of said debts so secured by him, and which were included in both of said mortgages, and that the same have not been repaid to him; that, after his payment of said indebtedness, he brought suit and foreclosed both of said mortgages on said land, and sold the same for $ 100 less than the amount of his judgment against the husband of appellee; that he has paid more than the amount of appellee's claim in excess of his said first mortgage at appellee's instance and request.

The third paragraph admitted the execution of the contract, but averred that after its execution, for a good and valuable consideration, then amounting to the sum of $ 515, assumed and subsequently paid by appellant at the request of appellee for and on behalf of her husband, then in life, it was agreed by and between appellee and appellant that said contract sued on should be null and void and be canceled, and appellee at said time for said consideration agreed to destroy the same; that appellant performed his part of said agreement, but that appellee failed to destroy the instrument, as agreed.

The fourth paragraph of answer embodies substantially the averments of the second and third paragraphs. To the second, third and fourth paragraphs of answer appellee demurred, which demurrer was sustained. Appellant withdrew his first paragraph of general denial and refused to plead further, and judgment was rendered upon the complaint in favor of appellee.

The only question presented by this appeal is upon the rulings of the court in sustaining the demurrer to the answers of appellant. The instrument sued on is clearly an indemnity bond maturing upon the breach of the condition specified therein. In the averments of the second paragraph there is nothing to show that it represented the inchoate interest of the wife, or that the amount secured by the second mortgage, together with that secured by the first and the amount of the instrument sued on, exceeded the value of the land. The averments of the answer are that appellant was induced to secure the second indebtedness by the execution to him of a second mortgage on said land. The execution of this mortgage did not necessarily grant appellant a right adverse to said bond of indemnity. It is true, the second mortgage was executed without any indemnity or limitation; but appellee might well have been induced to sign said second mortgage, relying upon the fact that she had her bond for $ 500, if she lost the land, and appellant might have been induced to accept said second mortgage as security upon the belief that the value of the land would amply protect him as against the amount of his obligation so assumed, as well as the bond he had executed. For these reasons the second paragraph of answer was insufficient and the demurrer properly sustained.

The third and fourth paragraphs, however, by their averments present a different question. As the averments of the third are embodied in the fourth, the discussion will relate to the fourth paragraph. By this paragraph it is shown, as a defense to the action, that appellee, to induce appellant to become the...