Miladin v. Istrate, 18506

• Decision Date: 29 April 1954
• Docket Number: No. 18506,18506
• Citation: 125 Ind.App. 46,119 N.E.2d 12
• Parties: MILADIN v. ISTRATE.
• Court: Indiana Appellate Court

Page 12

119 N.E.2d 12

125 Ind.App. 46

MILADIN v. ISTRATE.

No. 18506.

Appellate Court of Indiana, In Banc.

April 29, 1954.

Parrish & Parrish and Ralph J. Miller, Fort Wayne, for appellant.

Henry C. Springer, Butler, Hugh G. Sanders, Auburn, Edgar W. Atkinson, Auburn, James A. Angelone, Butler, of counsel, for appellee.

CRUMPACKER, Chief Judge.

This is a suit originally brought by the appellee's decedent, Tudor Istrate, to foreclose a mortgage on nine and one-half acres of land near the city of Garret, DeKalb County, Indiana, occupied by the appellant in whom the legal title now rests. The complaint proceeds upon the theory that on November 10, 1936, the involved land belonged to Albert and Nova Cole and was encumbered by a mortgage in the sum of $4,500 belonging to the plaintiff Tudor Istrate. That on said November 10, 1936, when the plaintiff was in his native land of Roumania, the defendant Charles Miladin, with the purpose of defrauding and cheating the plaintiff out of said mortgage, procured some person unknown to the plaintiff to forge his name to a false and unauthorized assignment thereof to the plaintiff's son, Charles Istrate. After procuring such assignment the defendant Miladin, in furtherance of his fraudulent scheme to obtain title to said mortgaged land, induced Charles Istrate to give him power of attorney to collect the debt secured by said mortgage. This he accomplished by taking a deed from the Coles to Charles Istrate in satisfaction of said debt and mortgage which he then caused to be discharged of record by a forged marginal release. That thereafter on January 23, 1948, in further perpetration of his fraudulent scheme, the defendant caused Charles Istrate to convey said land to him. That all of this was done without the knowledge, consent or authorization of the plaintiff and that he never received any consideration therefor or anything of value in payment of his said mortgage and he therefore asks that the same be foreclosed.

The defendant Miladin answered this complaint agreeable to Rule 1-3 and by various special answers pleading the six and fifteen year statutes of limitation, laches, payment, unjust enrichment, the rights of an occupying claimant, the Trading with the Enemy Act, and finally a cross-complaint in which he seeks to quiet his title to the involved land against the plaintiff's said mortgage. Before these issues could be tried the plaintiff died and his son, Costin Istrate, as administrator of his estate, was substituted for him. Upon request the trial court found the facts specially and stated conclusions of law thereon favorable to the plaintiff, decreed the foreclosure of the mortgage in dispute and from such judgment the defendant Miladin appeals.

It appears that on January 4, 1952, the appellant procured an order of court requiring Tudor Istrate to appear before its official court reporter in the city of Auburn, Indiana on January 17, 1952, to be conditionally examined by appellant's counsel. Upon a showing that the said Tudor Istrate was in Roumania when said order was made and that it would be impossible for him to reach the city of Auburn on January 17, 1952, the court vacated said order and the case proceeded to trial without benefit of such examination. The appellant contends that this was error as he was thereby deprived of a right which the statute clearly gives him. We cannot see how error can be predicated upon the vacation of an order with which it is impossible to comply. It might very well have been an abuse of discretion for the court to have done otherwise. The vacation of the order deprived the appellant of no right except that of taking Tudor Istrate's conditional examination in Auburn on January 17, 1952. It did not foreclose his right to such an examination at some other time or place had he asked for it, which he did not do.

The appellant next contends that the record before us reveals a case that should not have been entertained by the trial court as a matter of public policy. The only reason advanced in support of this assertion is that the appellee's decedent, Tudor Istrate, was a citizen of Roumania and died there before this case was tried. That the proceeds of the judgment herein, if affirmed, must be sent to the decedent's administrator in Roumania, a communistic country whose ideology is basically and fundamentally incompatible with ours and thereby the communistic cause will be enriched contrary to the best interests of the State of Indiana. In this appeal however we are not concerned with the distribution of the proceeds of the judgment involved. That matter rests exclusively in the jurisdiction of the DeKalb Circuit Court and should the appellee, in discharge of his trust as administrator of Tudor Istrate's estate, seek to send money into communistic Roumania it may be that the dictates of public policy will intervene.

It is next charged that the court's special findings of fact are not supported by sufficient evidence and do not warrant the conclusions of law stated thereon. It is conceded by both parties that on January 27, 1932, the plaintiff's decedent, Tudor Istrate, owned the land involved in this litigation and that on said day he sold the same to Albert and Nova Cole and took from them their note in the sum of $4,500 evidencing the unpaid purchase price and a mortgage on the land sold to secure the payment of said note. The mortgage records of DeKalb County disclose, however, that Tudor Istrate on November 10, 1936, assigned said note and mortgage to his son Charles Istrate who acknowledged payment of record on May 9, 1939. In reference to this assignment the court found as follows:

'That the purported assignment of said mortgage was made without the knowledge, consent or direction of the said Tudor Istrate, and that the signature to such assignment is not the signature of the said Tudor Istrate, nor made with any authority, knowledge or consent of the said Tudor Istrate, but that the signature of the said Tudor Istrate on said assignment of mortgage was placed thereon by some person or persons with intent to defraud the said Tudor Istrate and deprive him of the ownership of said note and mortgage.'

There seems to us to be ample evidence to support this finding. Three witnesses, each of whom is familiar with Tudor Istrate's signature, testified that the signature appearing on said assignment is not his. On November 10, 1936, Tudor Istrate was in Roumania and could not have appeared before a notary public in DeKalb County on that day for the purpose of executing said assignment and the notary, who ostensibly took his acknowledgement to the document, refused to identify the signature as genuine. Charles Istrate had no correspondence with his father in reference to an assignment of the note and mortgage and had no knowledge of the purported assignment to him until 1939, almost three years after the same was made. From these facts the court was justified in drawing the inference that had Tudor Istrate authorized any one to make the assignment for him he would have communicated with his son Charles with whom he left said note and mortgage when he went to Roumania or any agent of his, duly authorized to assign them to Charles, would not have done so without his knowledge or consent.

The finding above quoted, being supported by evidence, compels the conclusion that the estate of Tudor Istrate still owns the note and mortgage in suit and, as the debt so evidenced fell due January 27, 1938, said mortgage constituted a valid lien on the real estate involved when this action was commenced unless paid in the meantime or barred by the statute of limitations.

The facts pertinent to the question of payment may be summarized as follows: The note and mortgage were left in the possession of Charles Istrate when his father, who owned them, went to Roumania. The note is endorsed with the signature 'Tudor Istrate' which the undisputed evidence shows to be a forgery and the court so found. The records of DeKalb County show a marginal release of the mortgage involved signed by Charles Istrate, the false assignee thereof. The undisputed evidence further shows that the signature of Charles Istrate to said release was also forged and the court so found. Said note and mortgage were placed in Charles Istrate's hands for the sole purpose of collecting the money due thereon and, although Tudor Istrate then owed his son Charles $5,000, the mortgage was not given to him in payment of or to apply on said debt or to secure the same. Charles made no effort to collect the debt evidenced by said note and mortgage but in 1935 he turned them over to the appellant, his brother-in-law, together with a written power of attorney to effect collection. This the appellant accomplished, according to the testimony of Albert Cole, by 'forcing' the Coles to deed the encumbered property to Charles Istrate in satisfaction of the debt evidenced by said note and mortgage.

The appellant contends that when Tudor Istrate turned said note over to his son there was a pre-existing debt owing by the father to the son which was automatically discharged, pro tanto, thereby constituting a valuable consideration for a transfer of ownership of said note which carried with it ownership of the mortgage security and therefore anything that happened subsequently is of no concern to the appellee. It seems to us that the fallacy of this argument lies in the fact that the court, supported by evidence, found that Tudor Istrate's endorsement on the note is a forgery and, as said note is payable to his order, the mere tradition of the instrument did not constitute a negotiation thereof whereby Charles Istrate became its owner. Section 19-301, Burns' 1950 Replacement. The undisputed evidence forces the conclusion that Tudor Istrate entrusted said note, unendorsed, and its mortgage security to his son Charles for the purpose of collection only. 'The general rule is that in the...