Martindale v. Parsons

• Citation: 98 Ind. 174
• Decision Date: 11 November 1884
• Docket Number: 10,049
• Parties: Martindale et ux. v. Parsons et al
• Court: Supreme Court of Indiana

98 Ind. 174

Martindale et ux. v. Parsons et al

No. 10,049

Supreme Court of Indiana

November 11, 1884

fro the Superior Court of Marion County.

Affirmed, with costs.

H. J Milligan and C. Martindale, for appellants.

N Morris, L. Newberger and F. Winter, for appellees.

OPINION

Hammond J.

This was an action by the appellants against the appellees to foreclose two mortgages executed by the appellees Connelly and Shortridge to Stephen K. Fletcher, to secure the payment of ten promissory notes, each for $ 80. One mortgage was on lot 13, more particularly described, and secured the payment of a series of five of said notes. The other mortgage was on lot 14, also more particularly described, and secured the payment of another series, the other five of said notes. It is shown in the complaint that by a succession of conveyances the title to the lots, subject to the mortgages, vested in John R. Mitchell, who afterwards conveyed them to the appellee Parsons, "who," it is alleged, "as part of the purchase price, by the terms of the conveyance, promised and agreed to pay said mortgage notes." The notes and mortgages were assigned to the appellants.

Parsons answered that he had paid the notes due one and two years after date, secured by the mortgage on lot 13, and also those due one, two and three years after date, secured by the mortgage on lot 14. As to the remaining notes, he offered no objection to the foreclosure of the mortgages for whatever sum might be unpaid. He admitted that he received the deed from Mitchell as alleged in the complaint, and still retained title to the lots, but denied having assumed the payment of any notes other than those already paid. He further averred that by the contract between him and Mitchell, he was to take the lots and assume an encumbrance of $ 400 thereon, in payment of $ 316.76, which he had been compelled to pay as surety for Mitchell. He also filed a cross complaint, setting up the foregoing facts and alleging that a mutual mistake was made in drawing the deed.

Appellants replied to the answer, and answered the cross complaint by general denial. No question is made as to the sufficiency of any of the pleadings. A trial by the court, upon appellants' request to find the facts specially and to state the conclusions of law thereon, resulted in the following special finding of facts and conclusions of law:

"On February 1st, 1873, the defendants Robert Connelly and William C. Shortridge executed to one Stephen K. Fletcher a mortgage on lot No. 13, as described in the complaint, securing five notes of $ 80 each, of even date with said mortgage, due respectively in one, two, three, four and five years after date, all drawing six per cent. interest until maturity, and at the rate of ten per cent. per annum after maturity, except the first, which drew interest at the rate of ten per cent. interest from date, each of said notes providing for five per cent. attorney's fees, if suit should be instituted thereon. All given by the mortgagors to the mortgagee. On the same day said Connelly and Shortridge also executed to said Fletcher a similar mortgage on lot 14, as described in the complaint, securing five notes similar to those hereinbefore described. Said mortgages were duly recorded in Marion county, Indiana, said lots being situated in said county. Afterwards, on the 16th day of September, 1873, said Connelly and Shortridge conveyed said real estate to one Robert Munnell, who, on the 28th day of January, 1874, conveyed said real estate to John R. Mitchell, who afterwards, on March 11th, 1874, conveyed the same to the defendant Matthias Parsons, by a deed of tenor following:

"'This indenture witnesseth: That John R. Mitchell and Elizabeth H. Mitchell, his wife, of Marion county, in the State of Indiana, convey and warrant to Matthias Parsons of Rush county, in the State of Indiana, for the sum of one thousand six hundred dollars, the following real estate in Marion county, in the State of Indiana, to wit, lots numbered thirteen (13) and fourteen (14), in block thirteen (13), in S. K. Fletcher's South Brookside addition to the city of Indianapolis. Subject to a mortgage, dated February the 1st, 1873, on each lot, to secure the payment of five promissory notes for the sum of eighty dollars each, the notes due, the first on the first day of February, 1874, and annually thereafter, the first note with ten per cent. interest, all of the remaining notes with six per cent. interest, all of which the grantee, by the acceptance of this deed, assumes and agrees to pay. In witness whereof the said John R. Mitchell and Elizabeth H. Mitchell, his wife, have hereunto set their hands and seals this 11th day of March, 1874.

"'John R. Mitchell. [seal]

"'Elizabeth H. Mitchell. [seal]'"

Which deed was duly acknowledged and recorded.

The facts in relation to the conveyance from Mitchell to Parsons were as follows:

"Parsons as security for Mitchell had been compelled to pay a judgment amounting to $ 320, and Mitchell had nothing with which to repay Parsons except said lots 13 and 14, each of which was encumbered as hereinbefore mentioned.

"Mitchell represented to Parsons that there were in all only five notes charged upon both lots, which he described as of $ 80 each and amounting to $ 400 together, but gave no particular description thereof.

"Relying upon Mitchell's representations, Parsons agreed that if Mitchell would convey said lots to him, Parsons, he would release his claim against Mitchell and also assume and pay said five notes of $ 80 each.

"The conveyance by Mitchell to Parsons was thereupon made and delivered pursuant to said agreement. Parsons was unable to read the deed at the time of its execution, but it was read to him by Mitchell, and from his representations Parsons supposed that it conformed to said agreement. He recorded and has ever since had possession of said deed. He subsequently paid five notes of $ 80 each, the first five notes presented to him, which were the one and two year notes charged upon lot 13, and the one, two and three year notes charged upon lot 14, as described in the complaint.

"The residue of the notes charged upon said lots 13 and 14 are due and unpaid.

"At the time of the conveyance, and ever since, Parsons has resided in Rush county, Indiana. At the time of the conveyance he had no knowledge of the existence of more than five notes charged upon said two lots, and did not learn of the existence of the other five notes until nearly three years after he had completed the payment of the five notes paid by him as aforesaid. Notice of the acceptance by the plaintiffs of the agreement contained in said deed and demand of payment of said five unpaid notes was properly served on the defendant Parsons before this suit was brought.

"The defendants Shortridge and Connelly were admitted by all parties to be discharged by bankruptcy, and plaintiffs asked no personal judgment against John R. Mitchell.

"There is due to the plaintiffs upon the notes as chargeable upon lot 13 the sum of $ 412, and upon the notes as chargeable upon lot 14 the sum of $ 274.68, each sum payable without relief from valuation or appraisement laws, with interest at six per cent.

"That upon the foregoing facts the court finds and states the following conclusions of...