Harris v. Cassaday

• Decision Date: 19 June 1886
• Citation: 107 Ind. 158,8 N.E. 29
• Parties: Harris and others v. Cassaday.
• Court: Indiana Supreme Court

107 Ind. 158

8 N.E. 29

Harris and others

v.Cassaday.

Supreme Court of Indiana.

June 19, 1886.

Appeal from Clay circuit court.

S. C. Stimson, R. B. Stimson, H. D. Roquet, Geo. A. Knight, and C. A. Knight, for appellants. B. E. Rhoads, E. F. Williams, James McNutt, and James Cornell, for appellee.

Elliott, J.

The trial court, upon proper request, made the following special finding of facts, and stated the following conclusions of law:

“(1) That on the twenty-fifth day of February, 1882, Sarah C. Gray recovered a judgment in the Vigo superior court for the sum of $1,059.14, with costs of said suit, against John B. Cassaday, Marion K. Cassaday, Henry C. Robinson, Alexander Crews, and Richard J. Harris, in which judgment it was decreed that the said Robinson, Crews, and Harris were sureties for said other defendants, and an order was made therein to exhaust the property of Cassaday and Cassaday before resort is had to the property of said Robinson, Crews, and Harris.

(2) An execution was issued upon said judgment, and placed in the hands of the sheriff of Vigo county, who, on the first day of August, 1882, levied said writ upon one Bucyrus steam-engine and one Runeley separator, with belts and fixtures combined, which was the property of the defendant in this action, and in which the execution defendants had no interest, which property was turned out to the sheriff by these plaintiffs as the property of the execution defendants.

(3) That on the twenty-fourth day of August, 1882, the defendants herein agreed with the plaintiffs to execute a mortgage upon the land now in controversy, in consideration that they would pay said execution and release said levy, and that they would meet at the office of Dunnegan & Stimson, in Terre Haute, on the twenty-sixth day of said month, to consummate said agreement; that in pursuance of said agreement they did meet on that day, when the defendant refused to consummate said agreement; that afterwards, on the same day, he agreed with Richard Dunnegan, one of the attorneys of these plaintiffs, that he would sign said mortgage, and that the same should not constitute a lien upon his land, unless he was enabled and did redeem certain land of his brother which had, prior thereto, been sold at sheriff's sale; that, after parting with the said Dunnegan, he agreed with Stimson, another of plaintiffs' attorneys, to execute the note and mortgage in suit, in pursuance of the original agreement with the plaintiffs, and did execute said mortgage, and agree to execute the note when these plaintiffs should pay off said execution, and release said levy; that upon the delivery of said mortgage of these plaintiffs they did pay off said execution as sureties of the said other execution defendants, which fact appears on said execution, and released said levy, but the defendant herein declined and refused to execute said note.

(4) That the mistake alleged in the complaint exists, and that the same is mutual, and that it occurred through the inadvertance of the scrivener who drew said mortgage.

(5) That the debt in controversy now amounts to the sum of $1,294.40” And the court finds as conclusions of law on the above facts that the mortgage in suit is without any consideration, and that the plaintiffs are not entitled to have the same foreclosed against the property therein described; and the court finds for the defendant.

It appears from the special finding that appellants were liable as sureties on the judgment under which the appellee's property was seized; and, as they were bound for this judgment, they yielded no consideration by the agreement to pay what they were already held liable to pay by the judgment of the court. There was no question as to their liability for the debt they undertook to pay, for that was settled by the judgment in the action brought by Sarah C. Gray. We understand the law to be well settled that a promise to pay a debt for which the promisor is already bound, does not constitute a sufficient consideration to support a contract. Laboyteaux v. Swigart, 103 Ind. 596; S. C. 3 N. E. Rep. 373; Smith v. Boruff, 75 Ind. 412;Fensler v. Prather, 43 Ind. 119;Ritenour v. Mathews, 42 Ind. 7;Reynolds v. Nugent, 25 Ind. 328. It is evident, therefore, that the promise of the appellants to pay their own debt is not such a consideration as will support the mortgage declared on in this suit.

The special finding shows that the appellee was the absolute owner of the personal property levied on at the instance of the appellants; and, as he was the owner, the sheriff had no right to seize it under a judgment rendered against other persons. It is too clear for...