Lowry v. Smith
| Decision Date | 11 October 1884 |
| Docket Number | 11,686 |
| Citation | 97 Ind. 466 |
| Parties | Lowry v. Smith |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
M. A Chipman and J. W. Sansberry, for appellant.
M. L Robinson and J. W. Lovett, for appellee.
The complaint of the appellant was in two paragraphs. He sought in the first paragraph to enforce a vendor's lien against the appellee. In the second paragraph he claimed to be subrogated to the rights of a mortgagee, he having been compelled to pay $ 500 of the mortgage debt, which a grantor of the appellee, for a valuable consideration, had assumed to pay, and which the appellee, as a purchaser with notice, was bound to pay.
Demurrers to these paragraphs for want of facts sufficient were sustained and judgment was rendered against the appellant. The rulings upon said demurrers are the errors assigned.
The facts stated in the complaint are, in substance, as follows The appellant owned land and mortgaged it to one Brunt, the mortgage was duly recorded, afterwards the appellant sold the land to Nathan Lowry, who, as part of the purchase-money, agreed to pay $ 500 of the mortgage debt to Brunt. This assumption of the $ 500 was recited in the deed from James Lowry to Nathan Lowry, and this deed was duly recorded, but the recorder, in his record, inserted by mistake $ 200 instead of $ 500, as the amount of the mortgage debt assumed by Nathan Lowry. Nathan never paid any part of it, died insolvent and left no property, the appellant was compelled to pay Brunt, the mortgagee, the $ 500 and interest. The appellee was a subsequent purchaser of the mortgaged land, claiming under Nathan Lowry.
These facts were under the consideration of this court in the case of State, ex rel., v. Davis, 96 Ind. 539. That was a suit by the present appellant against the recorder and his sureties on his official bond, claiming damages for the negligence of the recorder in failing to record the deed properly; it was held in that suit that the present appellant could recover such damages from the recorder and his sureties. In that case, Howk, C. J., delivering the opinion of the court, said:
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