Green v. McCord

• Decision Date: 17 February 1903
• Citation: 66 N.E. 494,30 Ind.App. 470
• Parties: GREEN et al. v. McCORD.
• Court: Indiana Appellate Court

30 Ind.App. 470

66 N.E. 494

GREEN et al.

v.McCORD.

Appellate Court of Indiana, Division No. 2.

Feb. 17, 1903.

Appeal from circuit court, Knox county; B. M. Willoughby, Special Judge.

Action to foreclose a mortgage by Charles G. McCord, as trustee of William Green, against John Green, Francis Green, Frank Green, and the Home Building & Loan Association of Vincennes, Ind. From a judgment for plaintiff, defendant the Home Building & Loan Association appeals. Reversed.

Cullop & Shaw and C. B. Kessinger, for appellant. De Wolf & De Wolf, for appellee.

ROBY, C. J.

Action to foreclose a mortgage executed by John L. Green and wife to William and Frank Green to indemnify them as sureties for John L. Green upon a note made by the parties named to R. B. Jessup. The appellant, the Home Building & Loan Association, was made a defendant, and alleged to have an interest in the mortgaged premises subordinate to that of the plaintiff. A special finding of facts was made, and conclusions of law stated thereon favorable to appellee, McCord. From a judgment following such conclusions, foreclosing the mortgage and postponing the lien of the building association thereto, it appeals, assigning error upon each conclusion of law.

Finding No. 5 is the only one relating to the subject therein referred to, and is in terms as follows: “On the 24th day of February, 1894, William Green and Hannah Green executed to Charles G. McCord, trustee, a certain trust deed conveying certain real estate therein described, and certain personal property, and all the rights, credits, and choses in action, and all personal property of every description whatever, belonging to said William Green, or in which he had any interest, and wherever situated, save and except his household property and wearing apparel, subject to the payment of the note of $1,601.50, dated the 9th day of December, 1893, payable to R. B. Jessup on or before the 9th day of December, 1894, with eight per cent. interest from its date, and signed by John L. Green and William Green; and other debts of said William Green. This trust deed did not embrace part of lot No. 283, in the city of Vincennes, described in the mortgage, dated December 9, 1893, executed by William Green and Hannah Green to R. B. Jessup, to secure the note for $1,601.50, payable to said Jessup. Said deed of trust was recorded on the 24th day of February, 1894, in the recorder's office in Knox county, and said grantee, Charles G. McCord, qualified, and entered upon his duties as trustee under said deed of trust.” The suit was instituted by “Charles G. McCord, trustee of William Green.” It devolved upon the plaintiff, the mortgage not having been executed to him, to establish the specific title thereto set up in his complaint. Indianapolis, etc., v. Center Township, 143 Ind. 63-70, 40 N. E. 134, and authorities there cited. The mortgage having been executed to William Green, and not being assigned by indorsement thereon, said Green should have been made a party defendant. Section 277, Burns' Rev. St. 1901; Watson v. Conwell, 3 Ind. App. 518, 30 N. E. 5;Stewart v. Fralich, 14 Ind. App. 260, 42 N. E. 951. The failure to demur to the complaint upon the ground stated was a waiver of the objection. Ayres v. Foster, 25 Ind. App. 99, 57 N. E. 725;Loufer v. Stottlemyer, 16 Ind. App. 221, 44 N. E. 1008. The requirement is none the less a matter of substance, and not technical at all. The trustee of an express trust may sue without joining the person for whose benefit the action is prosecuted. Section 252, Burns' Rev. St. 1901; Hord, Trustee, v. Bradbury, 156 Ind. 30, 59 N. E. 31.

The finding does not disclose who the beneficiary of the alleged trust is. Neither its purpose nor its terms are stated. If the facts found are sufficient, by the most liberal intendment, to establish the trust alleged, it is so because of the use of the word “trustee,” and the designation of the deed alleged to have been executed to him as a “trust deed.” “No particular technical words need be used. Even the words ‘trust’ or ‘trustee’ are not essential. Any other words, which unequivocally show an...