Mallett v. Page
| Decision Date | 13 December 1856 |
| Parties | Mallett and Wife v. Page and Another |
| Court | Indiana Supreme Court |
From the Knox Court of Common Pleas.
The decree is reversed with costs.
R. N Carnan, for appellants.
Mallett and Josephine, his wife, filed their complaint against Page and Page, to foreclose a mortgage.
Josephine Mallett was the daughter of Dominique Page, one of the defendants, and the sister of John B. Page, the other defendant.
The complaint states that on the 18th of August, 1847, John executed to Josephine, while sole and a minor, two writings obligatory, by which he agreed to pay her 125 dollars April 1, 1852, and a like sum April 1, 1855. To secure the debt John executed to her a mortgage on a certain tract of land, valued at 3,000 dollars, which was caused to be recorded by her father, Dominique Page, with the consent of John B. Page. At this time Josephine was a minor of thirteen years of age, and under the protection of her father; and at the time of suit brought was still a minor. It is further alleged that the debt is unpaid; that the notes and mortgage were placed in the hands of Dominique Page for safe keeping; that no other suit was prosecuted. It is charged that her father and brother being dissatisfied with her marriage, have either secreted or destroyed the notes and mortgage, and fraudulently combining, etc., the father has entered satisfaction of said mortgage on the record, in the name of said Josephine.
Prayer that the fraudulent entry of satisfaction be set aside, and the premises sold to satisfy the debt.
John B. answers, that the notes and mortgage were without consideration; and denies that he has conspired to defraud her, or that he has destroyed or secreted the mortgage.
Dominique answers that the notes and mortgage in the complaint mentioned, were executed by his co-defendant, and delivered to him (Dominique), to be kept until he should convey to said John B. the tract of land mentioned in the mortgage, and not otherwise; that the notes and mortgage were executed for the purpose of disposing of his property--both John and Josephine being his children--and for no other consideration, and they were never delivered to the plaintiff; that he afterwards changed his mind, and concluded not to convey to his co-defendant; that he did not conspire with John.
The plaintiffs demurred to the several paragraphs of the answer; but it is not material to notice any of them except the demurrer to the answer of Dominique.
The demurrer, in substance, is, that it does not show facts sufficient to meet the charge in the complaint, of his having entered satisfaction of the mortgage on the record, in the name of one of the plaintiffs.
The record is somewhat confused as to the disposition made of the demurrer. It first shows that the demurrers were overruled and replies filed. At a subsequent day it appears that the overruling the demurrer was reconsidered, and, in the language of the Court, that the cause was held up for advisement.
At the next term the parties appeared and proceeded to trial, without any notice of the demurrer to Dominique's answer, or any disposal of the issue of law thus raised.
The issues were tried by the Court. Finding and judgment for the defendants. Mallett and wife appeal.
We are of opinion that the notes and mortgage should be sustained. It may be very true that the father changed his mind; but it does not thence follow that the rules of law should be accommodated to his change of opinion.
There can be no doubt...
To continue reading
Request your trial