Guynn v. Wabash Cnty. Loan & Trust Co.

Citation53 Ind.App. 391,101 N.E. 738
Decision Date08 May 1913
Docket NumberNo. 7,990.,7,990.
CourtCourt of Appeals of Indiana
PartiesGUYNN v. WABASH COUNTY LOAN & TRUST CO. et al.

OPINION TEXT STARTS HERE

Appeal from Superior Court, Grant County; Robert M. Van Atta, Judge.

Action by the Wabash County Loan & Trust Company against William A. Newman and Katherine M. Guynn. From a judgment for plaintiff, defendant Katherine M. Guynn appeals. Affirmed.D. F. Brooks, of Wabash, for appellant. M. G. Sayre and N. G. Hunter, both of Wabash, and Condo & Browne, of Marion, for appellees.

ADAMS, J.

Action by appellee Wabash Loan & Trust Company against appellee William A. Newman and appellant, to recover on a promissory note, and to foreclose a mortgage securing the payment of said note, executed by appellee Newman on certain real estate in Wabash county, Ind.

[1] The court overruled appellant's demurrer to the complaint, and this ruling constitutes the first error assigned. The court, on request, made a special finding of facts, and stated conclusions of law thereon, and, as appellant's exception to the conclusions of law presents the same question as the demurrer to the complaint, the overruling of the demurrer is immaterial. Timmonds v. Taylor, 48 Ind. App. 531, 533, 96 N. E. 331, and cases cited.

The facts found by the court are substantially as follows: William A. Newman and Katherine M. Guynn are the children of Mary A. Newman, who died June 21, 1907, the owner in fee simple of the real estate described in the mortgage filed with the complaint. Mary A. Newman died testate, and at the request of defendants her will was duly probated. On July 11, 1907, one Lincoln Guynn, husband of appellant, applied for and obtained letters of administration with will annexed on the estate of Mary A. Newman, and entered on the discharge of the duties of his trust. By her said will Mary A. Newman bequeathed and devised in equal shares all of her real and personal property to the defendants, Newman and Guynn. In November, 1905, Katherine M. Guynn received from her mother a paper, purporting to be a deed of conveyance to said Katherine of all the real estate owned by her said mother, which deed included the lands described in the mortgage. The defendant Guynn was in possession of said deed from November 4, 1905, to and including March 4, 1908, at which time the same was recorded, and said Katherine M. Guynn at that time and ever since has claimed title in fee simple to all the lands described therein. While in possession of said deed, Katherine M. Guynn requested that the will of her mother be probated, and an administrator appointed, and accepted the conditions and provisions of said will, but withheld said deed from record, and concealed the fact of its execution from the plaintiff and from her codefendant, William A. Newman, until the same was recorded on March 4, 1908. Katherine M. Guynn knew, or had the means of knowing, the contents of said deed at the time the will was probated, and at the time she accepted the conditions and provisions made for her therein. She knew that her codefendant, William A. Newman, was endeavoring to negotiate a loan on his undivided interest in the real estate devised to him by the will of his mother, and also knew that any person, bank, or loan company would probably extend credit for any reasonable amount upon his interest in said real estate. William A. Newman informed his sister and codefendant, before procuring the loan made to him by the plaintiff, that he was intending to negotiate a loan and secure the same by mortgage upon his interest in the real estate, and informed the administrator of such fact. Katherine M. Guynn at no time made any objection thereto, or gave any notice of any claim of ownership in said lands, other than that conferred upon her by the will of her mother. On December 21, 1907, William A. Newman did procure from plaintiff a loan of $750, payable in one year, giving his note therefor, and securing the same by a mortgage to the plaintiff on his undivided one-half interest in the real estate devised to him by the will of his mother. This mortgage was made in good faith by Newman, and without knowledge of any claim by his sister, Katherine M. Guynn, therein, other than that devised to her by said will. The mortgage so executed was duly recorded on December 24, 1907, and plaintiff had no knowledge of the deed to Katherine M. Guynn until the same was recorded, more than 100 days after the loan was made.

Upon the facts found, the court stated conclusions of law favorable to appellee Wabash County Loan & Trust Company, and rendered personal judgment against defendant Newman for the amount due on his note, and judgment of foreclosure against both defendants.

[2] By her exception to the conclusions of law, appellant admits, for the purposes of the exception, that the facts have been fully and correctly found. National State Bank v. Sandford Fork, etc., Co., 157 Ind. 10, 15, 60 N. E. 699;Blair v. Curry, 150 Ind. 99, 101, 46 N. E. 672, 49 N. E. 908;City of Indianapolis v. Board of Church Extension, 28 Ind. App. 319, 323, 62 N. E. 715;Wills v. Mooner-Mueller Drug Co., 49 Ind. App. -, 97 N. E. 449, 451. Taking the findings as full and true, the question raised by the exception is: Do the findings support the conclusions of law? Appellee Wabash County Loan & Trust Company does not contend that the deed to appellant from her mother did not invest her with title to the lands described in the mortgage. The position of appellee is that appellant, by her conduct, is estopped to deny the title of her brother in the undivided one-half of the mortgaged premises, as against a good-faith mortgagee for value.

[3][4] No case has been cited, and we have been unable to find a case, wherein the facts are identical with the facts found by the court. In this case it is clear that the mortgagor had no title to the lands mortgaged by him at the...

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