Hasselman v. United States Mortg. Co.

• Decision Date: 25 September 1884
• Docket Number: 10,613
• Parties: Hasselman v. United States Mortgage Company et al
• Court: Indiana Supreme Court

97 Ind. 365

Hasselman v. United States Mortgage Company et al

No. 10,613

Supreme Court of Indiana

September 25, 1884

From the Superior Court of Marion County.

The judgment is affirmed, with costs.

A. C Harris and W. H. Calkins, for appellant.

T. A Hendricks, A. W. Hendricks, C. Baker, O. B. Hord, A. Baker and E. Daniels, for appellees.

OPINION

Niblack J.

On the 4th day of June, 1874, an association of persons acting as a corporation, and known as the Indianapolis Journal Company executed a mortgage on certain real estate in the city of Indianapolis, in the possession and use of said company, to Lewis W. Hasselman and William P. Fishback, to secure the payment of a sum of money therein specified. On the 7th day of June, 1875, the said Indianapolis Journal Company, still continuing in business as, and claiming to be, a corporation duly organized, executed another mortgage on the same real estate to the United States Mortgage Company, a corporation of the State of New York, to secure the payment of a loan of $ 60,000, to fall due August 1st, 1885, with interest payable semi-annually, containing, amongst other things, a stipulation that the entire sum might be treated as having fallen due on the failure to pay, at the proper time, any instalment of interest. As an inducement to the said mortgage company to make said loan, Hasselman and Fishback executed to it an agreement in writing that their mortgage should be taken, construed and considered to be junior to the mortgage executed to it as above to secure such loan.

In 1877 Hasselman and Fishback foreclosed their mortgage, and purchased the mortgaged property at sheriff's sale, subject to the mortgage to the mortgage company, receiving from the sheriff a certificate of their purchase in proper form. This certificate was soon thereafter assigned by them to Otto H. Hasselman, the appellant in this appeal.

The Indianapolis Journal Company having in the meantime been placed in the hands of a receiver, Otto H. Hasselman, the appellant, in 1878, purchased from the receiver the printing and binding establishments, including merchandise and stock on hand belonging to said company, together with its name and good-will, subject to the rights of the mortgage company, and went into the possession of the mortgaged property, claiming to be its owner.

Default having been made in the payment of some instalments of interest, the United States Mortgage Company commenced an action against Otto H. Hasselman, John D. Nicholas, Nicholas R. Ruckle, Harry J. Ketchum, Charles B. Wanamaker, William A. Bell, Henry C. Chandler, Henry Jordan, Joshua K. Speer and Granville M. Ballard, in the superior court of Marion county, to foreclose its mortgage. After averring the facts, herein above stated, in connection with other pertinent matters, the complaint charged that the said Otto H. Hasselman went into the possession of the mortgaged property, and claimed the right to, and now holds the possession thereof, as the assignee of the sheriff's certificate assigned to him as above by Hasselman and Fishback, and under his purchase from the receiver of the Journal Company, and under no other right or title whatever, and is now carrying on business in the Journal Building, constituting a part of the mortgaged property, in the name of "The Indianapolis Journal Company."

Otto H. Hasselman answered in eight paragraphs: First. In general denial. Second. Payment. Fourth. Denying the validity of the execution of the mortgage. Sixth. Alleging that he was the owner and in the possession of the property described in the complaint, and that his co-defendants were his tenants; that at the time the mortgage sued on was executed, that is to say, on the 7th day of June, 1875, there was no such corporation in existence as "The Indianapolis Journal Company."

The remaining paragraphs respectively set up, in some form, that at the time of the execution of the mortgage, there was not, and never had been, such a corporation as "The Indianapolis Journal Company," because of certain specified defects, or omissions, in the attempted organization of the company known by that name.

Demurrers were sustained to all the special paragraphs of answer, except the second and fourth. Issue being joined upon the last named paragraphs, the court, at special term, made a finding that there was due to the plaintiff for principal, interest and other specific charges against the mortgaged property, the aggregate sum of $ 76.987.65, and decreed a foreclosure of the mortgage as against all the defendants.

The suit appealed from in this case was for the review of the proceedings had as above for the foreclosure of the mortgage company's mortgage, in which Otto H. Hasselman was plaintiff, and all the other parties to those proceedings, together with John S. Spann and William Henderson, as the representatives of after-acquired interests, were defendants.

The complaint alleged that the court had erred in sustaining demurrers to those paragraphs of answer which denied the existence of the Indianapolis Journal Company as a corporation, and for that reason demanded a review of the proceedings and judgment in question.

The court below, at special term, sustained a demurrer to the...