Michener v. Bengel
| Decision Date | 15 June 1893 |
| Docket Number | 16,309 |
| Parties | Michener v. Bengel et al |
| Court | Indiana Supreme Court |
Reported at: 135 Ind. 188 at 194.
From the Tipton Circuit Court.
The judgment is reversed, with instructions to grant a new trial and for other proceedings not inconsistent with this opinion.
J. C Blacklidge, W. E. Blacklidge, C. C. Shirley and B. C. Moon for appellant.
W. R. Oglebay and G. W. Spahr, for appellees.
William B. Eshleman, Orris P. Eshleman, and their sister, the appellee Vandelena E. Bengel, inherited from their parents, Jeremiah Eshleman and his wife Catharine, eighty acres of land in Tipton county, Indiana.
On August 15, 1885, the three children agreed upon a division of said land. William B. and Orris P. took a deed from Vandelena E. for fifty acres on the north side of the eighty acres, and Vandelena E. took a deed from them for the remaining thirty acres. The deed given by Vandelena E. was signed by her under the name of Elizabeth M. Bengel, and was also signed by her husband, the appellee George C. Bengel. The deed to Vandelena E. Bengel was delivered to her, but was never placed on record.
On August 29, 1885, William B. and Orris P. Eshleman executed and delivered to the appellee, George C. Bengel, a quitclaim deed for an undivided two-thirds of said thirty acres, and this latter deed was placed on record.
On June 14, 1887, George C. Bengel and his wife, Vandelena E. Bengel, mortgaged said thirty acres to the appellant, to secure the payment of three promissory notes, given to appellant by said George C. Bengel for certain machinery purchased of appellant by said Bengel.
After the maturity of the notes the appellant brought suit to collect the debt and foreclose the mortgage on two-thirds of said real estate.
To appellant's complaint the appellee Vandelena E. Bengel filed her answer in four paragraphs, and also filed her cross-complaint in three paragraphs, setting up that all the land so mortgaged was her own separate estate; that she was the wife of George C. Bengel; that the debt secured was the individual debt of her said husband; that she executed said mortgage solely to secure said debt, and praying that the title to the land be quieted in her.
In the third paragraph of said appellee's answer, she alleged that, on August 15, 1885, she and her said brothers met and agreed upon partition of the said eighty acres inherited from their parents; that for the purposes of partition and to divide the land amongst themselves, and upon no other consideration, she, her husband uniting with her, conveyed fifty acres off the north side of said land to her said brothers, "and on the same day at the same time and place, to carry out the partition agreed upon and as consideration for said deed," her said brothers conveyed to her the said remaining thirty acres; that afterwards, without her knowledge or consent, the said deed to her was torn up and destroyed, and on the 29th day of August, 1885, her said brothers conveyed to her husband the undivided two-thirds of said thirty acres, which last deed was placed upon record.
The cause was submitted to a jury, who rendered a general verdict for the appellant against the appellee George C. Bengel for the amount of the debt due appellant, and a general verdict for the appellee, Vandelena E. Bengel, on her cross-complaint, quieting her title to all of said thirty acres.
The only error assigned by appellant is the overruling of his motion for a new trial. The first reason given, in support of the motion for a new trial, is that the verdict is not sustained by sufficient evidence.
The appellee Vandelena E. Bengel testified that she did not know that the deed given to her in partition was destroyed, and a deed made to her husband in its stead, until after the execution of appellant's mortgage.
At the time that the appellee George C. Bengel made the contract with appellant to purchase the machinery, he represented to appellant that the thirty acres was his own property, and agreed to secure the debt by a mortgage on the land.
Appellant testified that he did not know at or before the time of the execution of the mortgage that the appellee Vandelena E. Bengel was the owner of any part of said land, until after examining the record of deeds, when he discovered that George C. Bengel was the owner of only two-thirds of it, as shown by the deed received by him from William B. and Orris P. Eshleman.
Section 2931, R. S. 1881, provides that: "Every conveyance or mortgage of lands or of any interest therein, and every lease for more than three years shall be recorded in the recorder's office of the county where such lands shall be situated; and every conveyance or lease, not so recorded in forty-five days from the execution thereof, shall be fraudulent and void as against any subsequent purchaser, lessee or mortgagee in good faith and for a valuable consideration." The appellee Vandelena E. Bengel did not put her deed upon record within the time required by law, nor before the time of the making of said mortgage.
By section 5117 of the same statutes, while a married woman may take, acquire, and hold real or personal property, as if she were unmarried, yet it is provided, "That she shall be bound by an estoppel in pais, like any other person."
That appellant was a mortgagee in good faith and for a valuable consideration, we have no doubt; although this is denied by ...
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