Mathes v. Shank

• Decision Date: 15 April 1884
• Docket Number: 11,257
• Citation: 94 Ind. 501
• Parties: Mathes v. Shank et al
• Court: Indiana Supreme Court

94 Ind. 501

Mathes v. Shank et al

No. 11,257

Supreme Court of Indiana

April 15, 1884

From the Morgan Circuit Court.

The judgment against Hannah Mathes, in favor of Ellen Shank and James R. Shank, is affirmed, with costs. The judgment against Hannah Mathes, in favor of James S. Coleman, is reversed with costs, and the cause remanded with instructions to sustain the demurrer to Coleman's cross complaint, and for further proceedings not inconsistent with this opinion.

C. E Davis, J. H. Jordan and O. Matthews, for appellant.

OPINION

Howk C. J.

This cause was submitted to the court for trial, upon the issues joined, and, at the request of the parties, the court made a special finding of the facts, and stated its conclusions of law thereon, as follows:

"On the 15th day of September, 1880, Levi R. Bradley made his promissory note to Hannah Mathes (the appellant), promising to pay to her order, on or before the 29th day of October, 1881, $ 541.80, value received, without relief from valuation or appraisement laws, without interest; and said Bradley also executed a mortgage to said Hannah on eighty acres of land in Brown county, Indiana, to secure the payment of said note. On the 20th day of September, 1880, Hannah Mathes sold and assigned said note, by endorsing her name thereon, to James S. Coleman, and received therefor of said Coleman a deed of a house and lot in the town of Morgantown, Morgan county, Indiana, and the possession thereof, of the value of $ 450, and merchandise of the value of $ 75, making the sum of $ 525, received for her said endorsement of said Coleman, all of which she converted to her own use. Hannah Mathes, when said note was executed to her and when she sold and endorsed the same to said Coleman, was and still is a married woman, and resided with her husband on her own farm; and she was not carrying on, or engaged in, any special or separate business, when she so endorsed said note.

"The merchandise she received of Coleman was to be used in her family; and the house and lot she received of him, she intended to use as a residence, but, after holding it for a time, she sold it. Said Bradley was indebted to her for land she sold him, and executed to her the said note therefor. On the 1st day of October, 1880, Coleman endorsed said note for its par value to the plaintiffs Ellen and James R. Shank. When such note became due, the plaintiffs Shank and Shank brought suit against said Bradley in the Brown Circuit Court, and obtained judgment against him for $ 547.66 due on such note, with $ 54.25 costs, collectible without relief from valuation or appraisement laws, and for the foreclosure of said mortgage and an order to sell said eighty acres of land to satisfy the same. Upon proper execution the land was duly sold for the sum of $ 100, which was applied on said judgment and costs, and said execution was returned no other property found on which to levy.

"In this action, judgment was rendered in favor of the plaintiffs Shank and Shank, against the defendant Coleman, on the 16th day of December, 1882, in his lifetime, for the sum of $ 531.50, which judgment has not been paid to the plaintiffs by Coleman in his lifetime, or by his administrator, but it is a prior lien on such real estate of Coleman, as absolutely secures it. Said Bradley, the maker of said note, at no time after its execution, had any property other than the mortgaged land, out of which said debt or any part thereof could be made. Hannah Mathes has paid nothing to the plaintiffs, or said Coleman or his estate, on account of her endorsement of said note."

Upon the foregoing facts, the court stated its conclusions of law as follows:

"The defendant Hannah Mathes is bound by her assignment or endorsement of said note to said Coleman and to the plaintiffs, as the assignees of said Coleman, for so much as could not be made by proper action and diligence off of said Bradley and the land mortgaged by him to secure said note; that the plaintiffs recover of the defendant Hannah Mathes the sum of $ 525, being the amount received by her for said note and mortgage of said Coleman, less the amount realized on said foreclosure against said Bradley, with interest accrued thereon, to be collected without relief from valuation or appraisement laws; and that if the estate of said Coleman shall pay plaintiffs their said judgment against said Coleman, then execution shall issue against the defendant Hannah Mathes, for the benefit of said estate, and all collections thereon shall enure to the benefit of said estate."

Over the exceptions of the appellant, Hannah Mathes, to each and all of said conclusions of law, the court rendered judgment thereon against her, in favor of the appellees Ellen and James R. Shank, and a conditional judgment in favor of the appellee Isaac Knight, administrator of the estate of said James S. Coleman, deceased.

This suit was brought by the appellees Ellen and James R. Shank as the assignees of a promissory note not payable to order or bearer in a bank in this State, against James S. Coleman, as their immediate assignor, and the appellant, Hannah Mathes, as their remote assignor, of such note, under the provisions of section 5504, R. S. 1881, in force since July 5th, 1861. There was, certainly, a misjoinder of causes of action in the plaintiffs' complaint, but as such misjoinder, under section 344, R. S. 1881, affords no ground for the reversal of the judgment, we need not further notice it. As between the appellant, Hannah Mathes, and the appellees Ellen and James R. Shank, the controlling question for decision, in this case, is based upon the fact found by the trial court, that at the time Hannah Mathes assigned, by endorsement, the note of Levi R. Bradley to her co-defendant James S. Coleman, she was and had been since a married woman, and resided with her husband on her own farm. At the time Bradley executed such note to the appellant, Hannah Mathes, or order, and at the time she assigned the note, by endorsement, to her co-defendant Coleman, "An act concerning married women," approved March 25th, 1879, was the law of this State, and defined, to the extent specified therein, the rights, powers and liabilities of a married woman. The act in question contained no repealing clause or section, but in so far as its provisions were...