Maynard v. Waidlich
| Decision Date | 09 May 1901 |
| Docket Number | 18,803 |
| Citation | 60 N.E. 348,156 Ind. 562 |
| Parties | Maynard et al. v. Waidlich et al |
| Court | Indiana Supreme Court |
From the Whitley Circuit Court.
Affirmed.
L. W Royse, A. G. Wood and F. E. Bowser, for appellants.
T. R Marshall, W. F. McNagny and P. H. Clugston, for appellees.
Appellees brought this action to foreclose a mortgage executed by appellant Harriet Maynard and Elon Maynard her husband, to appellees to secure certain promissory notes executed by said Harriet to said appellees for the unpaid purchase money of the real estate described in the mortgage. The cause was tried by the court, a special finding of facts made, and conclusions of law stated thereon in favor of appellees, and over a motion for a new trial by Harriet Maynard, judgment and decree of foreclosure were rendered against the said Maynard and Maynard. Harriet Maynard alone appeals, and assigns errors as follows: "(1) The court erred in overruling the demurrer of said appellant to the second paragraph of reply; (2) the court erred in overruling the demurrer of said appellant to the third paragraph of reply; (3) the court erred in the conclusions of law stated upon the finding of facts; (4) the court erred in overruling said appellant's motion to restate the conclusions of law; (5) the court erred in overruling said appellant's motion for judgment in her favor upon the special facts found; (6) the court erred in rendering a decree of foreclosure upon the one-third of the real estate described in the complaint and claimed by appellant; (7) the court erred in overruling said appellant's motion for a new trial."
It is alleged in the second paragraph of the separate answer of appellant, Harriet Maynard, "that about the year 1860, one Clinton S. Perrin, who was a resident of Whitley county, Indiana, died the owner in fee simple of all the land described in appellees' complaint and mortgage; that he owned no other real estate at the time of his death; that he left surviving him said appellant Harriet, his widow, and their children, Rial, Hiram, and Edwin S. Perrin, his only heirs at law, all of whom are now living; that in 1861 said Harriet married Elon Maynard, since which time she has remained continuously and now is his wife; that she never, before her marriage to said Maynard, sold or conveyed said real estate or any part thereof or interest therein to any one, by deed or otherwise; that she has not since her marriage to said Maynard sold or conveyed said real estate, or any part thereof or interest therein, by deed or otherwise, in which her said children by her first husband or either of them joined; that she is still the owner of the undivided one-third of said real estate, by virtue of her marriage with and as the widow of the said Clinton S. Perrin, deceased, and holds the same free from any encumbrance or lien whatever by virtue of said mortgage."
The second and third paragraphs of reply to said second paragraph of answer plead a former adjudication. The objections urged to these paragraphs of reply are such as can only be reached by motions to make more specific, and not by a demurrer for want of facts. Even if the third paragraph of reply "counts upon an estoppel in pais" and the facts alleged are insufficient to support the same, as claimed by appellant, yet no reversible error was committed in overruling the demurrer thereto, for the reason that the demurrer to the reply was joint and not several as to said paragraphs. Said demurrer is as follows: "The defendant, Harriet Maynard, demurs to the second, third, and fourth paragraphs of plaintiff's reply to the second paragraph of the answer of the said defendant, and says that neither of said paragraphs of reply states facts sufficient to avoid said answer." This demurrer is joint, and not several. Rownd v. State, 152 Ind. 39, 42, 51 N.E. 914, and cases cited. The court did not err, therefore, in overruling the same.
There were four conclusions of law, and appellant excepted to the same in gross. The third error assigned challenges all of the conclusions of law jointly. If any one of the conclusions of law is correct, appellant must fail as to this assignment. Ewbank's Manual, § 135; Kline v. Board, etc., 152 Ind. 321, 326, 51 N.E. 476; Hatfield v. Cummings, 152 Ind. 537, 541, 53 N.E. 761; Baker v. Cravens, 150 Ind. 199, 201, 49 N.E. 1054; Royse v. Bourne, 149 Ind. 187, 190, 191, 47 N.E. 827, and cases cited; Evansville, etc., R. Co. v. State, 149 Ind. 276, 283, 49 N.E. 2, and cases cited. It is not claimed that all of the conclusions of law are erroneous, and it is evident that the third is correct. No question is presented, therefore, by the third assignment of errors. A motion to restate the conclusions of law is not recognized by our code of procedure, and for this reason the fourth error assigned presents no question. McFadden v. Owens, 150 Ind. 213, 214, 49 N.E. 1058. The correctness of conclusions of law is only questioned by a proper exception to each conclusion and assigning as error in this court that the court erred in each conclusion of law, or that the conclusion of law which is challenged is erroneous. Nelson v. Cottingham, 152 Ind. 135, 136-138, 52 N.E. 702, and cases cited; Jones v. Mayne, 154 Ind. 400, 402, 403, 55 N.E. 956, and cases cited; Smith v. Barber, 153 Ind. 322, 332, 53 N.E. 1014.
The judgment in this case strictly followed the conclusions of law, and was rendered in conformity therewith. No question is presented, therefore, by the fifth and sixth errors assigned. Nelson v. Cottingham, supra, and cases cited; Jones v. Mayne, supra; Anglemyer v. Board, etc., 153 Ind. 217, 218, 54 N.E. 803.
When there is any objection to a judgment rendered upon a verdict or general finding of a court, a motion to modify the same must be made in the trial court before any question can be presented in this court concerning the same. Hawks v. Mayor, 144 Ind. 343, 349, 43 N.E. 304, and cases cited; McGinnis v. Boyd, 144 Ind. 393, 42 N.E. 678; Seisler v. Smith, 150 Ind. 88, 90, 46 N.E. 993, and cases cited; Evans v. State, 150 Ind. 651, 655, 656, 50 N.E. 820, and cases cited. When, however, there is a special finding and conclusions of law thereon and the judgment is rendered in conformity with the conclusions of law, an exception to each conclusion of law, and not a motion to modify the judgment, is the remedy. Nelson v. Cottingham, supra, 136, 137.
The grounds assigned for a new trial were that the finding was not sustained by sufficient evidence, and that the same was contrary to law. The determination of these grounds for a new trial depends upon the evidence which appellees insist is not properly in the record. The original bill of exceptions which is embodied in the transcript contains, in addition to the evidence, a number of motions made in the court below by appellant, the rulings of the court thereon and the exceptions of appellant thereto. It is true, as claimed by appellees, that nothing except the evidence and questions concerning the competency of witnesses, and the admissibility of evidence, can be brought to this court by an original bill of exceptions. Ewbank's Manual, § 35; Adams v. State, post, 596. When, however, the original bill of exceptions embraced in the transcript contains the evidence as well as matters which can not be brought to this court in that manner, the evidence and questions concerning its admissibility and the questions of the competency of the witnesses will be considered and determined while the other matters shown by such bill will be disregarded. Adams v. State, supra.
It appears from the evidence that in 1860 Clinton S. Perrin died intestate the owner in fee simple of the real estate described in the complaint and mortgage, which was all the real estate owned by him at that time. That he left surviving him appellant, his widow, and their three sons, as his only heirs, all of whom are now living. Subsequently, appellant was married to Elon Maynard. That said sons and their wives, in 1883, sold and conveyed said real estate by warranty deed to said Elon Maynard, and he paid them the full and fair value of their interest therein, including their interest in expectancy in the undivided one-third thereof that would descend to them from appellant, their mother, at her death. On February 22, 1883, Elon Maynard and appellant, Harriet Maynard, executed a mortgage on all of said real estate to one Shorb, to secure four promissory notes for $ 1,000 each, executed by said Elon Maynard. Afterwards, in 1892, said Shorb brought an action against said Elon Maynard, Harriet Maynard, and others, among whom were appellees, to foreclose said mortgage. Appellant, Harriet Maynard, appeared and filed an answer and cross-complaint in said action. Her husband and all other parties to said action were made defendants to said cross-complaint. In one paragraph of answer she alleged that said real estate descended to her and her said children from her deceased husband, Clinton S. Perrin, who died intestate, and that at the time of signing said mortgage she was the wife of Elon Maynard, her codefendant in said action, and that said children of said Perrin were still living and had never disposed of their interest in said estate. In another paragraph she alleged as to 120 acres of the real estate described in said mortgage, that the same was purchased for her by her husband, Perrin, with her money, and he was to have the deeds therefor made to her, but that without her knowledge or consent he fraudulently took the title thereto in his own name; that she had always believed that the title thereto had been vested in her; that she has been in full possession of said 120 acres of real estate since its purchase; that said Shorb had notice of all said facts...
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