Eisman v. Whalen

• Decision Date: 11 December 1906
• Docket Number: 5,798
• Parties: EISMAN ET AL. v. WHALEN ET AL
• Court: Indiana Appellate Court

79 N.E. 514

39 Ind.App. 350

EISMAN ET AL. v. WHALEN ET AL

No. 5,798

Court of Appeals of Indiana

December 11, 1906

Mandate modified January 9, 1907.

From Floyd Circuit Court; William C. Utz, Judge.

Suit by Margaret J. Whalen against Delphia A. Eisman and others. From a decree for plaintiff and cross-complainants, defendant and another appeal.

Affirmed.

Thomas J. Brock, James K. Marsh and Ward H. Watson, for appellants.

L. A Douglass, for appellees.

OPINION

COMSTOCK, J.

Suit by appellee Whalen, to enforce a vendor's lien on real estate. The defendants were Pinkney Sellers, Delphia A Eisman, State Building & Loan Association of Indianapolis, William Martin, Catharine Krantz, Robert Kelley, First National Bank of Jeffersonville, Citizens National Bank of Jeffersonville and Simeon S. Johnson as administrator of the estate of Louis Bottorff, deceased. The complaint is in one paragraph. The following is a fair summary of the pleadings: On January 10, 1899, Pinkney Sellers, Delphia A. Eisman and John A. Eisman executed their joint promissory note to Margaret J. Whalen for $ 250, due twelve months after date, with seven per cent interest, without relief and with attorney's fees. On March 4, 1899, Sellers and his wife executed to John A. Eisman a deed for the real estate involved in this suit. The consideration of said deed was $ 1 and the assumption by Eisman of certain liabilities set forth in the deed. The deed recites that "it is covenanted and agreed, by and between the grantors and grantee, that said grantee, John A. Eisman, as a part consideration of said conveyance, hereby assumes the payment of the following indebtedness owing by said Pinkney Sellers, namely." Then follows a list of the debts owing by Sellers, and among them the note due appellee Whalen, which is referred to as follows: "The note executed by said Pinkney Sellers, with John A. Eisman as surety, in favor of Margaret J. Whalen, for the sum of $ 250, bearing the date January, 1899, due one year after date." On September 16, 1901, Eisman and his wife executed a conveyance of the real estate to John M. Paris, who on the same day reconveyed it to appellant Delphia A. Eisman. She paid nothing for it at the time the conveyance was made to her, knew the various debts recited in the deed from Sellers to John A. Eisman had not been paid, and that the land was encumbered with said lien for the purchase money. Sellers is insolvent, and refuses to enforce his apparent lien for the purchase money. The demurrer, for want of facts, of appellant Delphia A. Eisman to this complaint was overruled. Appellees Kelley and Johnson filed cross-complaints alleging substantially the same facts as in the complaint, showing that the indebtedness to them had not been paid. Demurrers were addressed to them by appellant Eisman and overruled, and said appellant filed her separate answer in two paragraphs, the first, a general denial. In the second she admitted the execution of the deed from appellant Sellers to John A. Eisman, her husband, and made a copy of it part of her answer, and admitted the making of the conveyance to Paris and from Paris to her. That John A. Eisman was, on December 24, 1901, adjudged a bankrupt; that appellee Whalen was a creditor and filed her note and made proof of her claim therein, and that she received $ 71.82 out of the proceeds of the estate of the bankrupt. It was averred that the conveyance from John A. Eisman to Paris was made within four months of the adjudication of said Eisman as a bankrupt, and that the trustee in bankruptcy filed a petition to cancel the deeds; that a compromise in the matter of setting aside the deeds was made between her and the trustee; that in this compromise the trustee agreed that he would not take possession of the real estate, and she agreed to pay certain liens thereon and release her inchoate interest, to the value of $ 200, in certain other real estate; and that the estate of the bankrupt was enhanced to the value of $ . It was further averred that appellee Whalen knew of the compromise, and that it was approved by the referee in bankruptcy. A demurrer for want of facts to this paragraph of answer filed by appellee Whalen was sustained. Appellant Sellers made denial to the complaint. As to William Martin and Catharine Kranz the suit was dismissed, and the State Building & Loan Association of Indianapolis was not found.

The suit was tried upon the complaint and denial thereto, the cross-complaints of Kelley and Johnson, and the answer of appellant Eisman in denial thereof. The cause was tried without a jury and a special finding of facts made by the court, conclusions of law stated thereon, and decree rendered in favor of appellees Whalen, Kelley and Johnson. Appellant Eisman excepted to the conclusions of law and each of them.

Appellant Eisman challenges the sufficiency of the complaint upon the ground that it does not show that the debt due appellee Whalen is for the purchase money, and does not agree to pay the same. We need not consider the action of the court in overruling the several demurrers hereinbefore stated, for the reason that, where there is a special finding of facts, the overruling of a demurrer is immaterial. Woodward v. Mitchell (1895), 140 Ind. 406, 39 N.E. 437; Chicago, etc., R. Co. v. Yawger (1900), 24 Ind.App. 460, 56 N.E. 50; Louisville, etc., R. Co. v. Downey (1897), 18 Ind.App. 140, 47 N.E. 494. This is not the rule where the demurrer is sustained.

It is argued that the court erred in sustaining the demurrer of appellee Whalen to the second paragraph of appellant Eisman's answer to the complaint. This answer sets up as an estoppel against appellee Whalen certain proceedings had in bankruptcy of John A. Eisman in the district court for the district of Indiana, which proceedings were had in pursuance of the agreement entered into by and between said appellant Eisman and James J. Brock, trustee in said bankruptcy. It is averred that she, said Delphia A Eisman, paid in full the debt she thereby obligated herself to pay, and that the estate of said bankrupt was thereby enhanced and benefited, and that said Whalen was a party to said action in bankruptcy, and that said settlement, or compromise, was approved by the referee in bankruptcy, and there was no exception filed by said Whalen. We are unable to see that this paragraph of answer sets out facts constituting a defense to the suit to enforce a vendor's lien. Appellee Whalen filed her claim against, and shared in, the distribution of the bankrupt estate. This she had a right to do, and, if not paid in full, there remained to her the right to proceed against the property upon which she had the lien. Swarts v. Fourth Nat. Bank (1902), 117 F. 1, 54 C. C. A. 387. The land became security for the debt when conveyed to John A. Eisman by Sellers, on March 4, 1899. Eisman was surety for the defendant before that date. The bankruptcy proceedings did not destroy the lien. Appellee Whalen could prove her claim against the Eisman estate and receive her pro rata share without surrendering any equitable right she might...