McCrory v. Little

• Decision Date: 14 December 1893
• Docket Number: 16,483
• Citation: McCrory v. Little, 136 Ind. 86, 35 N.E. 836 (Ind. 1893)
• Parties: McCrory et al. v. Little, Guardian
• Court: Indiana Supreme Court

35 N.E. 836

136 Ind. 86

McCrory et al. v. Little, Guardian

No. 16,483

Supreme Court of Indiana

December 14, 1893

From the Rush Circuit Court.

Judgment is affirmed.

W. A Cullen, J. D. Magee and J. Q. Thomas, for appellants.

D. W McKee, B. L. Smith and C. Cambern, for appellee.

OPINION

Dailey, J.

This cause was begun in the Rush Circuit Court, by John S. Clark, to foreclose a certain mortgage executed to him by the appellants Fannie McCrory and Perry McCrory upon real estate therein described, situate in said county.

At the time the mortgage was executed the title to the premises was vested in Perry McCrory, and the debt secured thereby was the debt of said Perry, for $ 2,500 in money loaned to him by John S. Clark. After the full execution of the mortgage, the land was deeded by appellants Perry McCrory and Fannie McCrory, his wife, to the mortgagee, Clark, who immediately reconveyed the same to the appellant Fannie McCrory. During the pendency of the suit, the appellee's ward, John S. Clark, was declared a person of unsound mind, and appellee, Joseph I. Little, was appointed his guardian.

The complaint is in the ordinary form upon a note and mortgage, asking judgment on the note against the appellant Perry McCrory, and a judgment of foreclosure against both of the appellants.

The appellants filed a joint answer of three paragraphs.

The first was a general denial.

The second admits the execution of the note and mortgage; alleges that the same were given for a debt of Perry McCrory; that appellant Fannie was the wife of said Perry; that on October 7th, while appellee's ward still owned the note and mortgage, said Clark conveyed said real estate to appellant Fannie McCrory by a warranty deed, with full covenants, and that said Fannie took possession under said deed, and has been in peaceable possession ever since, and that said Clark intended, by said deed, to cancel said mortgage and satisfy said indebtedness.

The third paragraph of joint answer of appellants sets up payments by way of set-off.

The appellant Perry McCrory filed a separate answer, setting up the same facts as the third paragraph of the joint answer.

The appellee filed a reply to the separate answer of Perry McCrory, and to the third paragraph of the joint answer of the appellants in general denial.

The appellant Fannie McCrory filed her separate answer to the complaint in three paragraphs.

The first of which admits the execution of the mortgage sued on, but avers that she was then, and now is, the wife of Perry McCrory; that thereafter, to wit, October 7, 1886, she and her husband conveyed, by warranty deed, the mortgaged land to the mortgagee, John S. Clark, who accepted the deed and placed the same on record; that said Clark was, at the time of this conveyance the owner of the note and mortgage in suit; that subsequently, on the 7th day of October, 1886, said Clark conveyed said real estate to her, in her own name, by deed, with full covenants of warranty; that she accepted the deed, and caused the same to be recorded, and is in possession under said deed, and is the owner of the tract free from the mortgage. Copies of the deeds are made exhibits thereto.

The second paragraph admits the execution of the mortgage as the wife of the appellant Perry McCrory; avers that the same was given to secure a debt of her said husband, represented by the note in suit; that afterwards she and her said husband conveyed said real estate so mortgaged, by warranty deed, to the appellee's ward, John S. Clark, who was, at the time of such conveyance, the owner and in the possession of the note and mortgage; that afterwards, on the 7th day of October, 1886, said Clark, being still the owner and in possession of said note and mortgage, conveyed the mortgaged real estate to said Fannie McCrory, by deed of general warranty; that she took possession under said deed, and has been ever since in the possession of the said real estate; that said Clark was, and is, her brother, and intended, by said conveyance, to cancel said mortgage, and satisfy said indebtedness. Copies of deeds are also made exhibits with this paragraph.

There was a demurrer sustained to the third paragraph of the separate answer of Fannie McCrory, to which she excepted.

The appellee replied in five paragraphs to the separate answer of Fannie McCrory.

In the first paragraph, it was alleged that on October 7, 1886, the real estate was conveyed by Perry McCrory and Fannie McCrory to said Clark for a nominal consideration of one dollar; that no consideration was ever paid, and the deed to him was never recorded, nor in his possession; that the possession was retained by said Perry McCrory. The paragraph admits the signing and acknowledging of the deed for the same real estate to Fannie McCrory, as averred in the answer, but alleges that the same was done at the same time and as a part of the same transaction in which the first described deed was made; that said Fannie paid no consideration for said real estate; that both of said deeds were made for the sole and only purpose of transferring the title of said real estate from Perry McCrory to his wife, Fannie McCrory; that said Clark at no time had possession of either the deed or of the real estate; that he had no intention of releasing his said mortgage or the debt secured thereby; that he participated in said transaction as a mere conduit, to convey the title of Perry McCrory to said real estate to his wife Fannie McCrory.

The third paragraph by Joseph I. Little, guardian, sets up the same facts, substantially, as the first paragraph, with some additional averments by way of inducement and representations.

The fourth paragraph alleges that appellee, Clark, was intoxicated at the time the deeds were made.

The fifth paragraph alleges that at the time the deeds were made appellee, Clark, was a person of unsound mind.

Appellant Fannie demurred to each of said paragraphs of reply, separately, which demurrers were overruled and exceptions reserved.

The cause was tried by the court, on the foregoing issues, and upon appellants' request, made after the argument of counsel was heard, the court made a special finding of facts proven.

The special findings of fact and the conclusions of law thereon were as follows, to wit:

"That on the 28th day of December, 1892, the defendant, Perry McCrory, executed and delivered to the said John S. Clark the note described in the plaintiffs' complaint, said note being for the sum of two thousand, five hundred dollars, principal, payable at the expiration of five years from and after said date, with interest thereon from date, at the rate of six per cent. per annum and attorney's fees, and collectible without relief from valuation or appraisement laws; that the interest accruing on said note prior to the 28th day of October, 1888, has been paid; that the principal of said note and interest thereon at the rate of six per cent. per annum from the said 28th day of October, 1888, amounting in the aggregate to the sum of twenty-nine hundred and thirty-seven dollars and fifty cents is due and remaining wholly unpaid; that on the said 28th day of December, 1882, said Perry McCrory and the defendant Fannie McCrory, who then was, and now is, the wife of said Perry McCrory, executed and delivered to said John S. Clark the mortgage described in the complaint, thereby conveying to said Clark the real estate therein described, namely, the west half of the southeast quarter of section thirty-two (32) in township fourteen (14) north, range eleven (11) east, in Rush county, Indiana, as security for the payment of the indebtedness evidenced by said note, and so found due thereon, according to its terms, and that on the said 28th day of December, 1882, said mortgage was recorded in the recorder's office of said Rush county, Indiana, in mortgage record number 15, at page 522; that a reasonable attorney's fee for the collection of the amount due on said note and for the foreclosure of said mortgage is one hundred and fifty-six dollars and eighty-seven cents. I further find that the indebtedness evidenced by said note was the separate indebtedness of the defendant Perry McCrory, and that said Perry McCrory was the owner of the said real estate; that on the 7th day of October, 1886, and while said John S. Clark continued to hold and own said note and mortgage, the defendants, Perry and Fannie McCrory, and said Clark met at the office of a notary public, in the city of Rushville, at which time said Perry and Fannie McCrory conveyed said real estate, by deed, with covenants of general warranty, to said Clark, and that said Clark thereupon immediately, and as a part of the same transaction, reconveyed said real estate to the defendant, Fannie McCrory; that the consideration expressed in said deed of conveyance from said Perry and Fannie McCrory to said Clark, and for which the same purports to have been executed, is one hundred dollars, and that expressed in and for which said deed from said Clark to said Fannie McCrory was executed is one dollar, but that, in fact, no money or other consideration was paid or given for, or on account of, the execution of either of said deeds; that prior to, and on, said 7th day of October 1886, said Perry McCrory was apprehensive of a suit for damages being instituted against him for an assault or an assault and battery, claimed to have been committed by him on one John S. Holmes, and that the sole and only purpose and intention of said deed of conveyance, and of said parties thereto, was to transfer the title to said real estate from said Perry to said Fannie McCrory in order...