Kelley v. York

• Decision Date: 15 October 1915
• Docket Number: No. 22830.,22830.
• Parties: KELLEY v. YORK et ux.
• Court: Indiana Supreme Court

183 Ind. 628

109 N.E. 772

KELLEY

v.YORK et ux.

No. 22830.

Supreme Court of Indiana.

Oct. 15, 1915.

Appeal from Circuit Court, Sullivan County; Wm. H. Bridwell, Judge.

Action by Lee R. Kelley against John York and wife. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Reversed, with instructions.Charles D. Hunt and Gilbert W. Gambill, both of Sullivan, for appellant. John W. Lindley and Martin L. Pigg, both of Sullivan, for appellees.

MORRIS, J.

Action by appellant against appellees, husband and wife, for judgment on a note and to foreclose a mortgage. There was a trial by the court, with special finding of facts and conclusions of law, and judgment for appellant, on the note, against the husband, and for appellees in relation to the mortgage. The errors assigned here are based on the conclusions of law and the overruling of the motion for a new trial.

The court found that in May, 1910, appellant conveyed to appellees, as tenants by entireties, for the stipulated price of $1,025, a tract of land containing 20 1/2 acres. At the same time appellant sold to appellee John C. York a span of mules for $200. Mrs. York owned in her own right a tract of land containing 24.26 acres. Contemporaneous with the execution of the deed by appellant, appellees executed to him their note for $1,225 and their mortgage on both tracts of land to secure the payment thereof. When the mortgage was executed, the notary informed all the parties that a married woman is not bound on a surety contract. Previous to May 20, 1911, the interest and $410 of the principal of the note had been paid by appellee John C. York. On the latter date the parties met, at a lawyer's office in Sullivan, and York executed his note to appellant for $815, representing the balance due on the original debt. This note matured in one year and was payable at a Sullivan bank. At the same time appellees executed their mortgage on both tracts of land to secure the payment of the note. The mortgage contained this clause: “The mortgagor expressly agrees to pay the sum of money above secured.” The new note and mortgage “were taken in discharge of the old note and mortgage,” which were delivered to appellee, and the old mortgage was released of record by appellant. Appellant's father was with the parties when the new note and mortgage were drawn, and, after their execution, called the attention of the parties to the fact that Mrs. York had not signed the new note, whereupon the attorney said that “her signature was not necessary, as she was a married woman and could not become surety under the laws of this state.” The court further expressly found that the debt evidenced by the $815 note was that of the husband, and that Mrs. York executed the mortgage as a surety.

The conclusions of law state: (1) That appellant is entitled to judgment on the note against the husband; (2) that the mortgage is not enforceable; (3) that Mrs. York is entitled to a decree quieting her title to her 24.26-acre tract; and (4) that appellees are entitled to a decree quieting their title to the 20 1/2-acre tract purchased from appellant.

There was little conflict in the evidence, except in relation to what was said by appellant's father and the attorney on the occasion of the execution of the mortgage in suit. The elder Kelly testified that, in response to his suggestion that Mrs. York had not signed the note, the attorney said that she did not have to sign it-that she had signed the mortgage and that was sufficient.

It is earnestly contended by appellant that there is no evidence to sustain the finding that the debt was solely that of the husband, and that the wife executed the mortgage, on the tract purchased from appellant, as surety, and we are constrained to so hold. The facts here, in all essential particulars, are like those disclosed in the opinion in McCoy v. Barns (1893) 136 Ind. 378, 36 N. E. 134. It was there held that a substantial equity will not be defeated by the interposition of technical distinctions, and that the question of the wife's suretyship does not depend on the form of the contract or the basis of its execution, but rather on the answer to the inquiry whether she received, in person or in benefit to her estate, a consideration for her contract. Subjecting the evidence here to such test, there is no warrant for the finding that the debt was solely that of the husband. The note here sued on was executed as...