Hill v. Warner

• Decision Date: 25 May 1898
• Citation: 50 N.E. 582,20 Ind.App. 309
• Parties: HILL et al. v. WARNER et al.
• Court: Indiana Appellate Court

20 Ind.App. 309

50 N.E. 582

HILL et al.

v.WARNER et al.

Appellate Court of Indiana.

May 25, 1898.

Appeal from circuit court, Howard county; Walter W. Mount, Judge.

Replevin by Robert M. Hill and others against John M. Warner and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Herron & Stratton, for appellants. Harness & Voorhis, for appellees.

ROBINSON, J.

Caroline Hill brought suit in replevin against appellees. Upon her death before trial, appellants were substituted as plaintiffs. Appellee Warner had leased a farm from Caroline Hill, and, to secure the payment of the rent, had executed his notes, secured by chattel mortgage. The suit was brought for possession of the mortgaged property, by virtue of one of the provisions of the mortgage. Appellee Warner answered in denial, and also a novation. Judgment was rendered in appellees' favor for costs. A motion for a new trial on the ground that the finding is not sustained by sufficient evidence, and is contrary to law, was overruled, and this ruling is the only error assigned.

The only question presented and argued is whether the evidence shows there was a novation. This was the only defense attempted to be made by the evidence. In the fall of 1895, Warner leased a farm house from Mrs. Hill, and took possession, and executed three promissory notes, aggregating $200, for the rent; the notes secured by chattel mortgage. In March, 1896, Warner moved off the premises, and on the same day one Baxter moved on. Baxter and Warner had agreed that Baxter should become paymaster for the balance of the rent that Warner had agreed to pay. Baxter testified: That he and Warner went to see Mrs. Hill. That “Mr. Warner told her that he didn't want to stay on the place; that he wanted to give up the place, and let me have it; and I really can't tell just what was said in regard to it, because she was sick, and said she was not able to talk with him.” The witness further said that they made no definite arrangements at all at that time, and that, when witness did go back to make arrangements, Warner was not with him, and that was the only time he and Warner were there together. Mrs. Emily Hill testified that she was present when Warner and Baxter saw Mrs. Hill, and that Warner requested her to release him and take Baxter, but that she refused. Mrs. Woodruff testified to the same thing. There is no evidence in the record that the three parties together ever had any other conversation about the matter. Baxter further testified: That he saw Mrs. Hill the day before he moved, and she consented to his moving and to Warner's moving, and witness asked her if he should give her a note and personal security, or a note and mortgage. That she said “she would let me know when I came in again which she would do. I told her that: ‘If I move, I will do it to-morrow; for the place that I was on was sold, and I must leave it.’ She said that when I came in she would tell me. When I went back she said she would do neither one; that is, after we moved.” She said “that Warner's papers were to be canceled, provided she took mine.” That she claimed Warner had no right to move away, and that she thought she...