McCaslin v. Advance Mfg. Co.

• Decision Date: 05 October 1900
• Citation: 155 Ind. 298,58 N.E. 67
• Parties: McCASLIN v. ADVANCE MFG. CO. et al.
• Court: Indiana Supreme Court

155 Ind. 298

58 N.E. 67

McCASLIN

v.ADVANCE MFG. CO. et al.

Supreme Court of Indiana.

Oct. 5, 1900.

Appeal from superior court, Marion county; L. M. Harvey, Judge.

Action by George H. McCaslin, trustee, against the Advance Manufacturing Company and others, to declare the lien of a mortgage held by plaintiff to be superior to the lien of a mortgage of one of the defendants. From a judgment in favor of the defendant and an order overruling a motion for a new trial, plaintiff appeals. Affirmed.

A. B. Clark, C. W. Means, and J. W. Claypool, for appellant. Robert Denny and G. W. McDonald, for appellees.

MONKS, J.

This action was brought by appellant against appellees to declare the lien of a mortgage held by appellant on certain real estate of the Advance Manufacturing Company to be prior and superior to the lien of a mortgage held by appellee Denny, trustee, on the same real estate. The court made a special finding of facts and stated conclusions of law thereon in favor of appellees, and, over a motion for a venire de novo and a motion for a new trial, judgment was rendered in favor of appellees. The errors assigned call in question the conclusions of law, the action of the court in overruling the motion for a new trial, the motion for a venire de novo, and the motion to correct the record.

Appellant first insists that the court erred in overruling his motion to correct the record. A copy of said motion appears in what purports to be appellant's bill of exceptions No. 3, which is copied into the transcript. Said bill of exceptions No. 3, so copied into the transcript, also shows the ruling of the court on said motion, appellant's exceptions thereto, and certain evidence to sustain the same. Appellant filed a præcipe, as provided in section 661, Burns' Rev. St. 1894 (section 649, Rev. St. 1881; section 649, Horner's Rev. St. 1897), and designated what papers and entries the clerk should certify to this court. Only such papers and entries as are mentioned in said præcipe are properly a part of the record on appeal. Any paper or entry not mentioned in such præcipe is no part of the record, even if copied into the transcript and certified by the clerk, and cannot, therefore, be considered on appeal. Brown v. Armfield (Ind. Sup.) 57 N. E. 722;Allen v. Gavin, 130 Ind. 190, 29 N. E. 363;Reid v. Houston, 49 Ind. 181. The præcipe directed the clerk to certify “plaintiff's [appellant's] bill of exceptions No. 1 and plaintiff's [appellant's] bill of exceptions No. 2,” and they are copied into the transcript, but appellant's bill of exceptions No. 3 is not mentioned in said præcipe. It follows, therefore, under the rule stated, that said bill of exceptions No. 3, though copied into the transcript, forms no part of the record, and the matters set forth therein cannot be considered on this appeal. But if said bill of exceptions was properly a part of the record, as the same does not show affirmatively that it contains all the evidence given on the trial of said motion, we cannot say that the court erred in overruling the same. Elliott, App. Proc. § 823. Moreover, if said bill of exceptions affirmatively showed that it contained all the evidence given on the hearing of said motion, we would be compelled to hold that the motion was properly overruled, for the reason that the only evidence set forth in said bill to sustain said motion was oral, which, under the long and well settled rule in this state, is not sufficient to authorize the correction of the record. Driver v. Driver, 153 Ind. 88, 54 N. E. 389, and cases cited.

Appellant next insists that the conclusions of law are erroneous. It appears from the special finding that appellant on April 13, 1894, sold and conveyed to the Advance Manufacturing Company certain real estate, upon which was located a furniture factory, for a consideration, mentioned in the deed, of $22,850. Said deed was made subject to the taxes of 1894 and a mortgage to De Pauw University for $8,000, which said grantee assumed and agreed to pay as a part of said consideration for said conveyance. Said sale and consideration included, in addition to the real estate, lumber and other material, machinery, and appliances then upon and connected with said real estate, used in the manufacture of furniture. On the day of said sale and conveyance the grantee paid $5,000 in cash to appellant, and executed to him, as the balance of the consideration therefor, 10 promissory notes, for the aggregate sum of $9,850, 9 of said notes being for $1,000 each, and payable respectively in 1, 2, 3, 4, 5, 6, 7, 8, and 9 years, and one for $850, payable within 10 years, after said date, and, to secure the payment of said notes, executed a mortgage to appellant upon said real estate. In said mortgage, the mortgagor agreed to keep the buildings on said real estate “insured for the benefit of the mortgagee and the De Pauw University, as their interest may appear, to the amount of ------ thousand dollars.” The mortgage in favor of the De Pauw University contained a clause requiring that said property be kept insured for its benefit to the amount of $10,000. The mortgage to appellant provided that the “mortgagors can pay off the mortgage to De Pauw University, and place another mortgage for a like amount on said real estate, which mortgage shall be prior to the lien of this mortgage.” Said clause was the material part of the inducement and consideration conceded by appellant, the mortgagee, to, and demanded and accepted by, the mortgagor, in the purchase of said property. When said sale was made, and deed and mortgage executed, the debt secured by the mortgage to De Pauw University was past due, and, by its terms, liable to be foreclosed. Upon the consummation of said sale the Advance Manufacturing Company entered into possession and commenced to operate said plant in the manufacture of furniture, and continued to so operate the same until August 2, 1894, when the same was, to a large extent, destroyed by fire. When said fire occurred the Advance Manufacturing Company was carrying insurance on the buildings and machinery, and all fixtures, apparatus, tools, and implements used in connection with the business of the manufacture of furniture, and finished and unfinished stock, lumber, and materials in use in said plant, to the amount of $22,700, in favor of the De Pauw University and appellant, as their interest might appear. Said Advance Manufacturing Company realized from insurance on property covered by said mortgages something over $10,000. Out of the whole amount of insurance, including that on property not covered by said mortgages, received in the adjustment of the losses caused by said fire, the mortgage debt to De Pauw University, amounting to $8,496, was fully paid, and payments were made on the indebtedness secured by the mortgage to appellant, amounting to $6,860.49, leaving only $2,989.51 of the principal unpaid, no part of which balance will become due prior to May, 1901. On December 31, 1894, after said payments had been made, and before any building had been reconstructed or machinery replaced, but after this suit had been commenced by appellant, and lis pendens notice filed, said Advance Manufacturing Company executed a mortgage on said real estate covered by appellant's mortgage to appellee Robert Denny, as trustee, to secure the sum of $8,000; said indebtedness to become due 18 months after December 31, 1894. All of said sum of $8,000, and about $2,700 more, making in all about $10,700, was used by said manufacturing company in the construction of new buildings in the place of those destroyed by fire, and in the...