Jarboe v. Severin

• Decision Date: 20 December 1887
• Docket Number: 12,699
• Citation: 14 N.E. 490,112 Ind. 572
• Parties: Jarboe v. Severin et al
• Court: Indiana Supreme Court

14 N.E. 490

112 Ind. 572

Jarboe v. Severin et al

No. 12,699

Supreme Court of Indiana

December 20, 1887

From the Clay Circuit Court.

The judgment is affirmed, with costs.

S. W Curtis, for appellant.

G. A Knight and C. H. Knight, for appellees.

OPINION

Mitchell, C. J.

Waiving some questions of minor importance, involving the completeness of a bill of exceptions, which purports to contain all the evidence given at the trial, there remain for consideration questions relating to the effect of a former adjudication which was pleaded, and whether or not the finding of the court is supported by the evidence in the record. The complaint was not substantially different from that considered when the case was here on a former appeal. Jarboe v. Severin, 85 Ind. 496.

It is only necessary to say, in this connection, that the action was brought to recover the value of the appellant's inchoate interest in certain real estate, which is alleged to have been conveyed by Mrs. Jarboe and her husband to Severin Ostermeyer & Co., by a deed of trust, on the 16th day of March, 1876, and to enforce a vendor's lien therefor. Among other defences, the appellees pleaded a former adjudication of the matters involved in the complaint, and that there was no consideration for the agreement relied on.

Briefly stated, the facts are that William Jarboe, the appellant's husband, had become largely indebted to the appellees, who were partners doing business under the firm name of Severin, Ostermeyer & Co. This indebtedness was secured by several mortgages, in the execution of which Mrs. Jarboe had joined, upon separate parcels of real estate owned by her husband. Not wishing to incur the expense of foreclosure proceedings, an agreement was made between the mortgagor and mortgagees, in pursuance of which all the real estate mortgaged, except lot 17, in one of the additions to the town of Brazil, was conveyed to the mortgagees in trust, to be sold at certain specified prices. The mortgagees were to execute conveyances to purchasers, and apply the proceeds to the liquidation and discharge of the mortgage debt. There was a stipulation in the deed to the effect that the existing securities should in no wise be impaired or invalidated by the trust. Failing to sell any of the property, the mortgagees foreclosed their mortgages in the May term, 1877, of the Clay Circuit Court. Jarboe and wife were made parties to the proceedings and decree, which included with the other mortgaged property lot 17, above mentioned. The mortgaged premises were subsequently sold by the sheriff of Clay county, in pursuance of the above mentioned decree, Severin, Ostermeyer & Co. becoming the purchasers, and receiving a sheriff's deed therefor in due course of time. Jarboe and wife surrendered possession of all the lands embraced in the decree and sale, except lot 17, which they were occupying as a residence, and which they refused to surrender. Thereupon, at the January term, 1879, of the Clay Circuit Court, a suit in ejectment was brought by the appellees against William Jarboe.

Mrs. Jarboe was subsequently admitted, upon her own application, as a party defendant to that action. Having been thus admitted, she filed a cross-bill, in which she set up, in substance, that prior to the execution of the trust deed the appellees orally agreed with her, in consideration that she would join her husband in the deed of trust hereinabove mentioned, and thereby release her inchoate interest in all the lands covered by the several mortgages, except lot 17, they would foreclose the mortgages upon the whole and afterwards convey to her lot 17 above described. She alleged that she had fully performed the agreement on her part, and that the appellees' purchase and holding of lot 17 was, therefore, in trust for her. She prayed that the appellees might be decreed to convey the lot to her, or if the court should find that she was not entitled to that relief, she prayed for judgment against the appellees for $ 2,000, the alleged value of the property which they refused to convey.

Issues were made upon the cross-complaint, and upon the trial there was a finding and judgment against the cross-complainant.

Upon the application of William Jarboe a new trial was...