English v. Roche

• Decision Date: 18 December 1854
• Citation: 6 Ind. 50
• Parties: English and Others v. Roche and Another, Administrators
• Court: Indiana Supreme Court

6 Ind. 50

English and Others v. Roche and Another, Administrators

Supreme Court of Indiana

December 18, 1854

ERROR to the Wabash Circuit Court.

The decree is reversed as to the costs which accrued by reason of the joinder of Stewart, Yelverton and Egerston as defendants. The residue is affirmed.

D. M Cox, for plaintiffs.

OPINION

Hovey J.

Robert English and Michael English, being indebted to Henry Ossum in his lifetime, executed and delivered to him a mortgage on the following real estate in Wabash county, to secure the payment of the same, to-wit: "The upper section of the two sections lying west of the Salamony river, granted to Susan Richardville by John Richardville in his late will and testament, the section hereby sold lying and being on the south side of the Wabash river, opposite to the town of Lagro, and commencing at the mouth of the Salamony river thence running down Wabash river, according to the survey made by the general government."

Hannah English, wife of Robert, and Martha English, wife of Michael joined in the mortgage, which was acknowledged in due form.

After the execution and delivery of the mortgage, Henry Ossum departed this life intestate, and John Roche and William Ossum were duly appointed administrators of his estate. The bill was filed to foreclose the mortgage, and at the September term, 1851, the record recites that the defendants, Michael English, Robert English, Hannah English and Martha English appeared by their attorneys, Cox and Connell, and filed their general demurrer to said bill. The demurrer which follows is in the names of Robert and Michael, the names of their wives not being inserted. The demurrer was overruled, "and the defendants, Robert English, Michael English, Martha English and Hannah English, refusing to withdraw said demurrer, or further to answer said bill, the Court do now order, adjudge and decree that the matters and things set forth in said complainants' bill are true," and rendered a decree for the complainants for the sum of 5,731 dollars and 25 cents, payable in one hundred and eighty days, and in default of payment, that said mortgaged premises should be sold, &c.

The defendants below bring the case here on error, and insist that the decree should be reversed--

1. "Because the bill and mortgage do not sufficiently describe the premises."

We can not perceive anything in this objection. There is no apparent ambiguity in the description, and the land described can be easily found, and its boundaries ascertained. The description is sufficient whenever the land intended to be mortgaged can be ascertained by it. See Morse v. Dewey, 3 N.H. 535.--Buck v. Hardy, 6 Greenl. 162.

2. "The bill makes John Stewart, John P. Yelverton and Lycurgus Egerston parties, without showing any...