Nichol v. Henry

• Decision Date: 16 October 1884
• Docket Number: 11,659
• Citation: 98 Ind. 34
• Parties: Nichol v. Henry
• Court: Indiana Supreme Court

98 Ind. 34

Nichol v. Henry

No. 11,659

Supreme Court of Indiana

October 16, 1884

From the Madison Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the demurrer to the fifth paragraph of answer, and for further proceedings not inconsistent with this opinion.

M. S Robinson and J. W. Lovett, for appellant.

C. L Henry, H. C. Ryan, E. P. Schlater, J. W. Sansberry, M. A Chipman and J. W. Sansberry, Jr., for appellee.

Howk J. Elliott, C. J., and Niblack, J.

OPINION

Howk, J.

This was a suit by the appellant, Nichol, as the assignee of a certain mortgage executed on the 17th day of October, 1860, by one George I. Chittenden to one John H. Chittenden, on certain real estate in Madison county, against the appellee, Henry, as the subsequent grantee and owner of such real estate, with notice of the aforesaid mortgage thereon. By its terms the mortgage was given "to secure the payment, when the same shall become due, of $ 800 loaned by said John H. Chittenden to said George I. Chittenden, and to be paid December 25th, 1862." In his complaint the appellant alleged, inter alia, that the mortgage in suit was duly recorded in the records of the recorder's office of Madison county on the 17th day of October, 1860, the day of the date of such mortgage; that the appellee was then the owner in fee simple of the mortgaged real estate, and became such owner after the execution and record of such mortgage; that the mortgage had been assigned to the appellant by endorsements thereon; and that the mortgage debt and the interest thereon since December 25th, 1862, were then due and wholly unpaid. Wherefore, etc.

The cause was put at issue and tried by the court, and a finding was made for the appellee, the defendant below; and over the appellant's motion for a new trial, the court rendered judgment against him for the appellee's costs.

In this court the appellant has assigned as errors the following decisions of the trial court:

1. In overruling his demurrer to the fifth, sixth and seventh paragraphs of appellee's answer; and,

2. In overruling his motion for a new trial.

Before considering the questions presented by these alleged errors, we may premise, that the record of this cause shows this suit to have been commenced on the 17th day of January, 1881. We may also premise, that this is the second time this cause has been before this court, see Nichol v. Henry, 89 Ind. 54; but we may properly say that none of the questions now presented were considered or decided on the former appeal. With this prefatory statement, we proceed now to the consideration of the questions presented by the first alleged error.

In the fifth paragraph of his answer the appellee alleged, as to so much of the complaint as sought to recover for loaned money, that the mortgage in suit did not contain any promise to pay, and no other note or other written obligation was ever executed by said George I. Chittenden to said John H. Chittenden, and no part of said loaned money was loaned, and no part of it became due, within six years prior to the commencement of this action, and, as to the said loaned money, the cause of action therein stated did not accrue within six years before the commencement of this suit.

Did the trial court err in overruling the appellant's demurrer to this fifth paragraph of answer? This we regard as the controlling question in this case, and so the appellant's counsel seem to think. The paragraph proceeds upon the theory that because the mortgage does not contain an express promise on the part of the mortgagor to pay his debt to the mortgagee, secured in such mortgage, and because such debt was not evidenced by any promissory note or other written obligation separate from the mortgage; therefore the six years' limitation constitutes a complete defence in bar of the appellant's action for the recovery of such debt. If this theory is correct, then it would seem to be clear that the demurrer to the fifth paragraph of answer was properly overruled. It may be conceded that unless it...