Farmers' Bank v. Orr
| Decision Date | 25 October 1899 |
| Docket Number | 2,538 |
| Citation | 55 N.E. 35,25 Ind.App. 71 |
| Parties | FARMERS' BANK v. ORR ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 8, 1900.
From the Clinton Circuit Court.
Reversed.
H. C Sheridan, for appellant.
L. J Curtis and Morrison & Morrison, for appellees.
Appellant was plaintiff below and brought its action against appellee Orr and others to foreclose and enforce a lien for certain gravel-road certificates held by it as assignee. The cause was put at issue, and trial was had by the court, resulting in a general finding and judgment against appellant on its complaint and in favor of appellee Orr on his cross-complaint. The errors assigned question certain adverse rulings to appellant, in this: (1) The overruling of appellant's demurrer to the cross-complaint of appellee Orr; (2) the overruling of appellant's demurrer to the second paragraph of the separate answer of appellee Curran; (3) the overruling of appellant's demurrer to the fourth paragraph of the separate answer of appellee Curran; (4) the sustaining of the demurrer of appellee Orr to the second paragraph of reply to the second and amended fourth paragraph of the separate answer of appellee Orr; (5) the sustaining of the demurrer of appellee Orr to the second paragraph of answer to the cross-complaint of Orr; (6) the sustaining of the demurrer of appellee Orr to the third paragraph of reply to the second paragraph and fourth amended paragraph of appellee Orr's answer to the complaint, and (7) the sustaining of the demurrer of appellee Orr to the third paragraph of appellant's answer to the cross-complaint of appellee Orr.
While these several paragraphs of pleading are voluminous, the questions at issue may be briefly stated. The three paragraphs of complaint are identical, except that they are each based on different certificates and describe different tracts of real estate, and a statement of the facts charged in one will suffice for all. The complaint avers the filing of a petition in the commissioners' court, praying for the improvement, grading, etc., of a certain described highway; that the board of commissioners duly found that the requisite number of petitioners whose lands were within two miles of the proposed improvement had signed the petition; that the board thereupon appointed viewers, as required by statute; that they were directed by the board to proceed to examine, view, lay out, and straighten the road to be improved, and make their report to the board at a time fixed in the order appointing them; that the board also appointed an engineer; that said viewers were duly qualified, and filed their report; that said proposed improvement was found by said board to be of public utility; that the benefits assessed exceeded the expenses and damages, and it was ordered and so entered of record that said improvement be made. It is also averred that one Samuel Merritt was appointed superintendent to superintend the proposed work; that as such superintendent he executed his bond to the approval of said board; that he was duly qualified and entered upon the duties of his said office. It is then alleged that said road was constructed; that appellees' lands, describing them, were assessed therefor in a fixed sum; that the pro rata share of said lands, as fixed by the superintendent, was a certain and definite sum, which is specified; that said superintendent made, executed, and issued certificates of assessment for the construction of said road against the real estate of appellee Orr, by the terms of which the payment thereof was divided into six equal installments, due six, twelve, eighteen, twenty-four, thirty, and thirty-six months from date as designated by coupons attached. It is further averred that after the levy of said assessments and the issuance of said certificates the same were sold and assigned to appellant before maturity for a valuable consideration, and indorsed by said superintendent and Thomas Slattery & Company. It is also charged that the said Merritt is dead, and his children and heirs at law are made parties. It is then charged that the first two coupons on account of said certificate have been paid, and that on May 23, 1891, the interest on the coupons was paid by appellee Orr to such date. It is then averred that on October 13, 1887, the improvement of said highway was reported to the board as completed and was then turned over to the board of commissioners by said superintendent. It is further charged that such certificate is a first lien upon the real estate described therein; that the appellee Orr is still the owner of the same; that said certificate is due and remains unpaid, wherefore, etc. Copies of the certificate and coupons upon which each paragraph of the complaint is based are filed as exhibits. A demurrer to each paragraph of complaint was filed and overruled. Appellee filed a cross-complaint and an answer in four paragraphs.
The cross-complaint avers, in substance, the same facts as set out in the complaint as to the petition and proceedings before the board of commissioners, the assessment of his lands, the issuing of the certificates sued on, and their assignment to appellant. It is then charged that said certificates have been fully paid by the appellee in the following manner: That on the -- day of , 1886, appellee Orr entered into a written contract with one Charles Pence, the contractor, for the construction of said road, whereby he agreed to furnish gravel from pits on his real estate to gravel about one and one-half miles of said road, at the rate of eight cents per load, and that the pay for such gravel should be applied to the payment of the assessment made against his lands; that by an oral agreement with said Pence appellee was to work in said pit, and furnish a team and hand to haul and work on said road, and to furnish other work and material thereon; that under said contract he furnished gravel for one and a half miles of said road; that he also furnished a team and hand to haul and work in said pit, and in all things complied with his said contract; that the gravel, work, etc., amounted to $ 400; that in the settlement between said Pence and appellee, the pay for said work and material was first applied to the payment of said assessments on appellee's real estate; that said Merritt knew of and concurred in said contracts and in the settlement between appellee and said Pence, and that, instead of delivering to said Pence certificates to the amount of said assessments, he was charged with having received pay in said amount, and said certificates were retained by said Merritt as fully satisfied, to be delivered to appellee. It is then averred that said assessments appear as a lien against his real estate and he prays that they be canceled and that the title to his lands be quieted. A demurrer to this cross-complaint for want of facts was overruled.
The first paragraph of appellee Orr's answer was a general denial. In the second paragraph of answer appellee simply avers payment of the certificates sued on, without describing the manner or stating the time of payment. In the third paragraph appellee admits the construction and completion of the road, the assessments made against his lands, and the issuance of the certificates, but denies the assignment to appellant. The amended fourth paragraph of answer is a special plea of payment, and the facts alleged therein are the same as stated in the cross-complaint. A demurrer to the second, third, and amended fourth paragraphs of answer was overruled.
Appellant's answer to the cross-complaint was in two paragraphs, the first of which was a general denial. In the second paragraph it is averred that appellant purchased the certificates sued on and paid a valuable consideration therefor before their maturity, and without notice of the facts stated in the cross-complaint; that such purchase was made on the -- day of , 1886; that ever since appellant has been engaged in the banking business in the city of Frankfort, Indiana, and has known the cross-complainant intimately all of said time; that it has had possession and has been the owner of said certificates since their purchase; that during said time appellant's president, cashier, and other officers have frequently and at divers times, since the maturity of the first coupon, notified the cross-complainant that it was the owner of the certificates; notified him to call at its office and pay the same, and, since the maturity of the last of said certificates, appellant, in the due course of mail, has frequently demanded of appellee to call at its office and pay said certificates. It is further alleged that appellee frequently called at appellant's office, and conversed with its officers within the past ten years in reference to said certificates, but at no time did he ever claim that any portion of them had been paid; that frequently during said last ten years appellee promised and agreed with appellant to pay the same; that he had frequently and at various times begged and requested appellant to extend the time of the payment and give him an opportunity to pay the same without suit; that appellant has threatened suit against appellee on said certificates, and he called at appellant's office and begged appellant not to enter suit, but to give him further time and that he would pay the same; that on May 23, 1891, appellee called at appellant's bank and paid on each of said certificates all the interest then due, and such interest was credited upon the back thereof in appellee's presence; that on the 31st of August, 1894, appellee paid as interest on said certificates the sum of $ 10, which was credited thereon; that when said payments were made, and at no other time, did appellee...
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