Jenne v. Burt

• Decision Date: 18 October 1889
• Docket Number: 13,278
• Citation: 22 N.E. 256,121 Ind. 275
• Parties: Jenne v. Burt
• Court: Indiana Supreme Court

22 N.E. 256

121 Ind. 275

Jenne v. Burt

No. 13,278

Supreme Court of Indiana

October 18, 1889

Petition for a Rehearing Overruled Dec. 18, 1889.

From the Marion Superior Court.

Judgment affirmed, with costs.

H. J Everett, for appellant.

J. S Duncan, C. W. Smith, J. R. Wilson and J. P. Baker, for appellee.

OPINION

Berkshire, J.

This action was brought upon a promissory note and upon a mortgage given to secure its payment. The appellee was the plaintiff below, and the appellant and her husband the defendants.

At special term the appellee recovered a judgment upon the note and a decree foreclosing the mortgage. From that judgment and decree the appellant appealed to the general term, and in general term the judgment and decree at special term were affirmed, and from the judgment in general term the appellant prosecutes this appeal.

The questions for our consideration are:

1. Did the complaint as originally filed state a good cause of action?

2. Did the court err in allowing the amendment to the complaint after the cause had been submitted to it for its decision?

3. Did the court err in overruling the demurrer to the second paragraph of reply to the second paragraph of answer, and to the second paragraph of reply to the fourth, fifth and sixth paragraphs of answer, and to the third paragraph of reply?

4. Was there sufficient evidence to sustain the finding of the court?

All of these questions must be answered adversely to the appellant.

The note was executed by the appellant jointly with her husband, and she joined him in the execution of the mortgage. It was alleged in the complaint as originally filed that the consideration for the note was $ 1,000 borrowed by the appellant and her husband of the appellee, and that they executed the mortgage to secure the note, and that the appellant and her husband owned the real estate mortgaged as tenants by the entireties.

Whether the allegations in the complaint would carry with them the presumption that the appellant was a joint principal with her husband, and not his surety, had the mortgaged real estate been her separate property, is a question which we are not called upon to determine.

The mortgaged property being the joint estate of both, and it being averred that the loan was made to them jointly, the presumption must be that she was a principal, and not the surety of her husband, hence the facts stated constitute a good cause of action against her. Security Co., etc., v. Arbuckle, 119 Ind. 69, 21 N.E. 469.

After the caption the complaint, as originally filed, so far as we need copy from it, reads thus: "Comes now Martha E Burt, the plaintiff...