Evans v. Odem
| Decision Date | 18 December 1902 |
| Docket Number | 4,216 |
| Citation | 65 N.E. 755,30 Ind.App. 207 |
| Parties | EVANS v. ODEM ET AL |
| Court | Indiana Appellate Court |
From Superior Court of Allen County; E. O'Rourke, Special Judge.
Suit by Olive L. Odem and another against John P. Evans and others. From a judgment for plaintiffs, defendant Evans appeals.
Affirmed.
T. E Ellison and H. G. Keegan, for appellant.
W. G Colerick, H. C. Larwill and Guy Colerick, for appellees.
This action was brought by appellees to secure the cancelation of a mortgage and certain notes executed to one Schell, and by him assigned to appellant Evans. The court made a special finding of the facts, with conclusions of law in appellees' favor. The questions argued depend upon whether the court's conclusions of law are right upon the facts found.
The motion to dismiss this appeal, which was postponed until final hearing, is overruled, for the reason that in a term-time appeal, as this is, when a part of any number of coparties against whom a judgment has been taken shall appeal it is not necessary to make such coparties not appealing parties to the appeal, nor to name them as appellants or appellees in the assignment of errors. § 647a Burns 1901; Anderson Glass Co. v. Brakeman, 20 Ind.App. 226, 47 N.E. 937; Lowe v. Turpie, 147 Ind. 652, 37 L. R. A. 233, 44 N.E. 25.
The facts found are, in substance: On October 4, 1895, appellee Olive L. Odem executed to one Schell her note for $ 1,500, payable in three years, at seven per cent. interest, and also six coupon interest notes, each for $ 52.50, for the semiannual payment of the interest thereon; and at the same time, to secure the payment of all the notes, she executed a mortgage,--her husband joining,--on certain described land, which mortgage was recorded October 7, 1895. Schell assigned the notes and mortgage to one Romy, who assigned them to one Woodruff, who now owns the mortgage and principal note; the coupon notes having been paid as they matured. There was due and unpaid on the debt secured by the mortgage on October 3, 1898, the note of $ 1,500 and the last of the six coupon notes. On October 3, 1898, appellee Olive L. Odem and her husband, at the request of Schell, called at his office to arrange for the payment of the above mortgage and note for $ 1,500 which was then due, and Schell advised them that if appellee would execute to him a new note for $ 1,500, payable three years after date, at six per cent. interest, and six coupon interest notes, and all secured by a mortgage on the land, that he would take up the old mortgage, and the note for $ 1,500 secured by it, and surrender them to her, and cause the record as to the mortgage to be canceled. This arrangement was satisfactory to appellee and her husband, and thereupon the new notes and mortgage were prepared by her or under the direction of Schell, and are the same notes mentioned in the complaint and in the cross-complaint of appellant Evans. The sole purpose in executing the new notes and mortgage was to extinguish the old note and mortgage, and was the sole consideration for the execution of the new notes and mortgage; and under that agreement appellees executed the new notes and mortgage and delivered the same to Schell for that purpose and no other, and under his agreement that they should be used for no other purpose, and that they might thereafter call at his office and procure the old note and mortgage. Schell afterwards, in violation of his agreement and promise, wrongfully and unlawfully, and without their knowledge or consent delivered the new notes and mortgage to appellant Evans as a collateral to secure the payment of a debt which he owed Evans, and for which appellees were in no manner liable, and never paid the old note and mortgage nor any part thereof, and made no arrangement with the holder thereof for the payment of the same, nor for the surrender of the note and mortgage to appellees, nor to any other person for them, nor for the cancelation of the record of the mortgage, and had no communication with the holder on that subject; and that the old note, with the mortgage, is a just debt, and remains wholly unpaid, and is a valid lien on the real estate. The new mortgage was recorded October 4, 1898. The consideration that was to have been given for the new notes and mortgage wholly failed, and appellees are entitled to the surrender of the same by appellant, who now has possession of the same and refuses to surrender them, although demanded before bringing suit. The new note for $ 1,500 provides:
At the time of the execution of the new note and mortgage, and as part of the same transaction, Schell caused appellee Olive L. Odem to make an affidavit setting forth, among other things, that she was a married woman and had that day executed the bond and mortgage, which are described; that she had a fee simple estate in the land which was free from all encumbrances, except the mortgage that day executed to Schell; that the money that day borrowed and secured by the mortgage was to be used by her exclusively and not for the separate use of her husband, nor was it to be used for the payment or security for the debt of her husband or any other person, but was to be used to pay an encumbrance then on the land, which encumbrance was created for the purpose of improving the...
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