Hamrick v. Hoover

• Decision Date: 19 March 1908
• Docket Number: No. 6,099.,6,099.
• Citation: 84 N.E. 28,41 Ind.App. 411
• Parties: HAMRICK et al. v. HOOVER.
• Court: Indiana Appellate Court

41 Ind.App. 411

84 N.E. 28

HAMRICK et al.

v.HOOVER.

No. 6,099.

Appellate Court of Indiana, Division No. 1.

March 19, 1908.

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Action to foreclose a mortgage by William H. Hoover against Ambrose D. Hamrick, assignee for the benefit of creditors, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Elias Bundy, for appellants. S. M. Saylor, for appellee.

MYERS, J.

In the court below appellee sued appellants to foreclose an indemnifying mortgage executed to him by Artemus O. Souers and John S. Hoover, covering a stock of furniture in the town of Van Buren, Ind., and owned by them as partners, and which they were engaged in selling at retail. The second paragraph of complaint was answered by Hamrick, as assignee of Souers, by a general denial and by an affirmative paragraph averring that the mortgagors, Souers and Hoover, were by the terms of said mortgage to keep possession of the mortgaged property and sell any part thereof at retail without any agreement in the mortgage or otherwise to account to the mortgagee or to any person in his behalf for the proceeds of sales so made, and that sales were made and the proceeds thereof appropriated by the mortgagors to their own use, and a reply in denial formed the issues submitted to the court for trial. Souers and Hoover made default. At the request of appellant Hamrick the court found the facts specially and stated conclusions of law thereon. In substance the findings are that on March 8, 1904, Souers and John S. Hoover were partners, and were engaged in selling furniture in the town of Van Buren, Ind.; that on said day said firm, with William Hoover as surety, borrowed from William Chopson $2,000, and executed to him their promissory note therefor; that said $2,000 was used in paying the debts of said firm; that on March 9, 1904, Souers and John S. Hoover executed to appellee a chattel mortgage on their stock of furniture to indemnify the latter against loss by reason of his said suretyship, and said mortgage was on said last date duly recorded; that said mortgage conveyed to William Hoover the then existing stock of goods and articles thereafter purchased and added thereto; that no part of the Chopson note has been paid except $160, interest; that the principals on said Chopson note are insolvent; that the mortgage provides that in the event the mortgaged property shall come into the hands of any assignee then the mortgagee shall have the right to take immediate possession of the property; that said property is in the hands of Hamrick as assignee; “that there has never been any arrangement or agreement between the mortgagers and mortgagee, whereby the proceeds of sales of the mortgaged property should be applied in payment of the mortgage debt; that William Hoover had no knowledge, nor does he now have, as to how the proceeds were applied;” that there is due on the note to Chopson $2,098.66; and that appellee is liable to Chopson to pay the same. Upon the facts found the court stated as conclusions of law (1) “that plaintiff is entitled to judgment against Souers and John S. Hoover for $2,098.66 and costs; (2) that plaintiff is entitled to possession of the mortgaged property, and to have it sold by the sheriff and the proceeds applied to the judgment.” Hamrick reserved exceptions to the conclusions of law, and over his motion for a new trial judgment was rendered in favor of appellee. Hamrick, as assignee, appeals and assigns as error (1) that the court erred in its conclusions of law; (2) that the court erred in overruling his motion for a new trial.

Exceptions to conclusions of law admit that the facts within the issues have been correctly and fully found. Adams v. Pittsburg, etc., Ry. Co., 165 Ind. 648, 74 N. E. 991;Dinius v. Lahr, 36 Ind. App. 425, 74 N. E. 1033. Upon this admission appellant argues that the findings bring this case within section 6646, Burns' Ann. St 1901, and therefore the mortgage is void for fraud to be pronounced as an inference of law-citing ...