Klingler v. Smith
| Decision Date | 11 December 1891 |
| Docket Number | 14,575 |
| Citation | 29 N.E. 364,131 Ind. 524 |
| Parties | Klingler v. Smith et al |
| Court | Indiana Supreme Court |
J. E McDonald, J. M. Butler, A. H. Snow and J. M. Butler, Jr., for appellant.
B. S Higgins, for appellees.
William A. Klingler, an unmarried man, executed to Jesse Smith two notes, one for $ 1,500 and the other for $ 1,000. Afterwards said Jesse Smith cancelled said mortgage and took another mortgage on the same land, executed by said William A. Klingler, securing a note for $ 2,600; the last note and mortgage he endorsed to his wife, Catharine Smith, who brings this action for the foreclosure of the same, making the appellant and her co-appellees defendants.
Issues were joined substantially as follows: The appellant, Mary A. Klingler, answers the complaint, alleging the giving of the first mortgage securing two notes, one for $ 1,500 and one for $ 1,000, and that the said Jesse Smith, for a valuable consideration, endorsed said $ 1,000 note to Polly Klingler, a sister of William A. Klingler, mortgagor, who, for a valuable consideration, endorsed the same to said appellant, Mary A. Klingler, then Mary A. Moore, but since intermarried with the mortgagor, William A. Klingler; and that the said Jesse Smith cancelled said mortgage, in so far as it was security for the $ 1,000, without any authority whatever, and avers the same to be a prior lien to the $ 2,600 mortgage.
Other defences were pleaded. Appellant also filed a cross-complaint, alleging the same facts, and asking a foreclosure of the prior mortgage securing the $ 1,000 note held by her, and that it be declared a prior lien.
The other parties to the suit are judgment creditors.
The appellee Catharine Smith answered the cross-complaint, and replied to the answers by alleging that the first mortgage and the note for $ 1,500 was given to secure a loan for $ 1,500, and that said William A. Klingler at the time was in embarrassed circumstances financially, and with a view of saving something out of his estate, requested and induced the said Jesse Smith to take another note for $ 1,000, signed by said Klingler, and included in said mortgage, and to assign the same to Polly Klingler, which he did, and Polly Klingler afterwards assigned the same to Mary A. Moore, who afterwards intermarried with the mortgagor; that said $ 1,000 note was given without any consideration whatever, and there was no consideration for the endorsements of the same; that afterwards said William A. Klingler was desirous of renewing the $ 1,500 note and borrowing an additional amount of said Jesse Smith, and said Smith agreed to loan him a sum sufficient to make $ 2,600, including the $ 1,500 and interest, and the said William A. Klingler represented to said Jesse Smith that he held the note for $ 1,000, and had long before destroyed it, and procured the said Smith to cancel the first mortgage and take a new mortgage securing the $ 2,600 due him, which he did, and that the said Polly Klingler and Mary A....
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