McFarland v. Christoff

• Decision Date: 22 May 1950
• Docket Number: No. 18019,18019
• Citation: 120 Ind.App. 416,92 N.E.2d 555
• Parties: McFARLAND v. CHRISTOFF et al.
• Court: Indiana Appellate Court

Page 555

92 N.E.2d 555

120 Ind.App. 416

McFARLAND v. CHRISTOFF et al.

No. 18019.

Appellate Court of Indiana, in Banc.

May 22, 1950.

Rehearing Denied June 15, 1950.

Kenneth Call, Gary, for appellant.

Draper & Eichhorn, Gary, for appellees.

ROYSE, Chief Judge.

Appellant brought this action against appellees on a promissory note and to foreclose a mortgage given to secure the payment thereof. Pursuant to proper request, the trial court found the facts specially and stated as its conclusion of law thereon 'that the law is with the defendants herein.' Judgment accordingly. The error assigned here is the overruling of appellant's motion for a new trial and that the trial court erred in its conclusion of law.

The findings of fact may be summarized as follows: On January 20, 1943 appellees were the owners of certain described real estate in Lake County. On said date appellees, for a valuable consideration, executed and delivered to appellant their certain promissory note due three years from date for the principal sum of $5000 and attorney fees, with interest from date at the rate of 5% per annum payable semiannually, negotiable and payable at the Gary State Bank, Gary, Indiana. The note provided appellees could, at any time, make payments of $100 or any multiple thereof on the principal and the interest provided for should be on the unpaid balance. On said date, to secure the payment of said note appellees executed and delivered their certain mortgage on the real estate described. This mortgage provided that upon failure to pay said note, or any part thereof, at maturity or the interest thereon, or any part thereof, when due, then said note is to be due and collectible and the mortgage may be foreclosed accordingly.

Said mortgage was duly and properly recorded and the intangible tax laws of this state complied with. Appellant has received nothing in payment of said indebtedness. The Gary National Bank and the Gary State Bank are one and the same institution.

On July 20, 1944, appellees made a tender in currency of the United States of the sum of $5375 to the Gary National Bank in payment of said note. Said Bank refused to accept the money so tendered. On said last mentioned date appellees, by and through their attorneys, called the attorney of appellant by telephone and advised him appellees desired to pay the full amount of the indebtedness and were advised by the attorney for appellant he had no authority to accept payment and he refused same.

On November 6, 1948 appellees paid into the trial court by payment into the office of the clerk thereof for the use and benefit of appellant the sum of $5375 under a plea of tender filed on said date. All tenders referred to were legal tenders.

On July 20, 1944 the note and mortgage were not in the possession of appellant's attorney for collection or otherwise. They came into his possession for collection in the early part of February, 1948. Said note and mortgage were not, on July 20, 1944 and never have been, in the possession or custody of the aforementioned bank for collection or otherwise. That said note and mortgage have at all times, up to the month of February, 1948, been in the possession of appellant; that appellant is entitled to interest on said note and mortgage up to and including July 20, 1944; that the amount of principal and interest due on said note and mortgage on said last mentioned date was $5375. Appellant is entitled only to said sum which appellees tendered into court and is now in the hands of the court.

The judgment of the trial court was that appellant take nothing over and above the amounts tendered by appellees, which sum was in the hands of the court, and that appellees recover their costs.

The specifications of the motion for a new trial are: (1) The decision of the court is not sustained by sufficient evidence; (2) it is contrary to law.

This being an appeal from a negative decision, the first specification of the motion for a new trial presents no question. Wilson, Administratrix v. Rollings, 1937, 214 Ind. 155, 14 N.E.2d 905; Royal Lease v. G. & A. Truck Lines, Inc., Ind.App.1950, 90 N.E.2d 351. We cannot agree with appellant's contention that this rule does not apply where the facts have been found specially and there is a finding that is not sustained by the evidence. Yelton v. Plantz, Ind.Sup., 89 N.E.2d 540, 545.

Appellant says the decision of the trial court is contrary to law because a tender of payment of a debt secured by a mortgage does not discharge the debt nor the lien of the mortgage. Also, that special finding No. 20 is a conclusion of law and must be disregarded, and if it is a finding of fact it is not sustained by the evidence.

'A bona fide, legally sufficient tender by a debtor, even though refused by the creditor, does not operate to discharge or extinguish the principal debt or obligations; it is operative, however, as a discharge or extinguishment of those things which are accessorial and incidental to the principal obligation, and prevents the addition of any further increment which would otherwise accrue to the unpaid obligation, and ordinarily discharges from further operation any collateral undertakings that may have been given for the better security of the creditor.' 52 Am.Jur. p. 240, § 35. It is generally recognized that a tender...