Hoppes v. Hoppes
| Decision Date | 24 April 1890 |
| Docket Number | 14,118 |
| Citation | 24 N.E. 139,123 Ind. 397 |
| Parties | Hoppes et al. v. Hoppes et al |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
Judgment affirmed, with costs.
C. L Henry, H. C. Ryan and E. P. Schlater, for appellants.
W. A Kittinger and L. M. Schwinn, for appellees.
Appellant Daniel Hoppes and Mariah Hoppes, his wife, each owned forty acres of land in Madison county, Indiana. The two forty-acre tracts join each other, and constitute an eighty-acre tract. Daniel owned the west forty, and his wife, Mariah, the east forty acres. While so owning such tracts of land in 1877 they executed a mortgage to Lewis Fitzgerald, as trustee of the Mercantile Trust Company, to secure a debt of $ 1,500, stated in the mortgage to be the debt of the said Daniel. After the mortgage was executed Mariah Hoppes died intestate, leaving Daniel Hoppes, her husband, and the appellees Charles Hoppes and Alfaretta Nichols, her children, as her only heirs surviving her. Some time after the death of Mariah, Isaac Hoppes, the father of Daniel Hoppes, bought of Daniel the forty acres owned by Mariah, agreeing as a consideration for the same to pay off the mortgage, and Daniel executed a conveyance to Isaac for the same. Afterwards Daniel sold the forty acres owned by him, being the west forty, to Isaac, in consideration of $ 1,800. After Isaac purchased both tracts of land, instead of paying off the mortgage and having it cancelled, he paid the same to the trust company and took an assignment of it, and then brought suit for foreclosure of the same, making Daniel Hoppes, Charles Hoppes and Alfaretta Nichols parties defendants; the said Charles and Alfaretta being at the time infants, a guardian ad litem was appointed for them, and a decree of foreclosure was entered ordering the sale of the east forty acres, which was owned by Mariah, for the payment of the mortgage. An order of sale was issued, and the said east forty acres was sold, and Isaac Hoppes purchased the same in satisfaction of the mortgage debt.
The appellees now bring this action to review and set aside the judgment of foreclosure.
Appellant Isaac Hoppes demurred to the complaint of the appellees, and the demurrer was overruled, and he excepted.
Isaac Hoppes then answered the complaint by general denial. Daniel Hoppes made default.
Upon the issues thus formed a trial was had by the court, resulting in a finding and judgment in favor of the appellees setting aside the original judgment as to the undivided two-thirds of the east forty acres of the land.
Isaac Hoppes filed a motion for a new trial, which was overruled, and he excepted.
Appellant Isaac Hoppes assigns as error that the complaint does not state facts sufficient to constitute a cause of action, that the court erred in overruling the demurrer to the complaint, and that the court erred in overruling the motion for a new trial.
Daniel Hoppes assigns as error that the complaint does not state facts sufficient to constitute a cause of action.
The complaint alleges that Daniel and his wife Mariah each owned forty acres of the land, and the execution of the mortgage; that the mortgage was executed to secure the individual debt of said Daniel; the death of Mariah and the names of her heirs; the purchase of the whole eighty acres of land by Isaac, and an agreement on the part of Isaac as a part of the consideration to pay the mortgage; that he paid the mortgage debt in accordance with his agreement, but that instead of having it cancelled he took an assignment of the mortgage and brought suit and foreclosed it; setting out the proceedings of foreclosure, copy of the judgment, and all the pleadings and the summons.
It is further alleged that Isaac and Daniel both were fully acquainted with all the facts and the relations of the parties to the land and their rights therein; that at the time of the pendency of said suit and rendition of said decree of foreclosure, the plaintiffs, the appellees herein, were infants, and had no knowledge that said debt secured by said mortgage was the individual debt of said Daniel, and that their mother, Mariah, was only surety; nor did they at that time know that the said Isaac had agreed to pay the same; that the appellants, knowing all said facts, concealed the same from them and from their guardian ad litem, appointed to represent them in said foreclosure suit, and that they have but recently, within a short time before bringing this suit, learned said facts, and could not with reasonable diligence earlier have learned the same; that one of the appellees is still a minor, and the other only became of age three or four months before the filing of the complaint for review; that the forty acres of land owned by said Daniel is more than sufficient to satisfy and pay the mortgage debt.
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