Noland v. State ex rel. Wasson
| Decision Date | 27 September 1888 |
| Docket Number | 13,334 |
| Citation | 18 N.E. 26,115 Ind. 529 |
| Parties | Noland et ux. v. The State, ex rel. Wasson, Auditor |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
The judgment is affirmed with costs.
M. E Clodfelter and T. E. Ballard, for appellants.
J. H Burford and W. B. Herod, for appellee.
On the 5th day of June, 1880, Erastus W. Noland and Levina Noland his wife, executed their joint promissory note for $ 450, payable to the State of Indiana for the use of the common school fund, and secured its payment by a mortgage on real estate owned by them as tenants by entireties.
Having made default in the payment of the debt, this suit was brought by the State, on the relation of the county auditor, to foreclose the mortgage.
The complaint is in the ordinary form, except that it contains an averment that the money borrowed was used to pay off a prior encumbrance on the land, and it also contains the further averment that, by the mutual mistake of the parties, the real estate mortgaged was incorrectly described, in that the words "In Montgomery county, Indiana," were omitted from the description as written in the mortgage.
The appellants insist that the complaint did not state facts sufficient to constitute a cause of action, and that their demurrer to it should have been sustained. This position is untenable.
The complaint was for the foreclosure of a mortgage and for judgment on a note, copies of which instruments were properly set out. It did not, as the appellants assume, proceed upon the theory that the plaintiff was seeking to be subrogated to the lien of the prior mortgage, which had been discharged with the money borrowed from the school fund. The averments in that connection may be regarded as surplusage, and yet the complaint is entirely sufficient as a bill for the foreclosure of the mortgage. So the objection that the mortgage does not show that the real estate mortgaged was situate in any county within the State of Indiana. This objection could not be reached by a demurrer for want of sufficient facts, since the complaint, in any event, stated a cause of action upon the note, a copy of which was set out. Bayless v. Glenn, 72 Ind. 5.
Besides, the complaint was entirely sufficient in respect to that feature of it which sought a reformation of the description in the mortgage. It may be conceded, where the description in a mortgage is so ambiguous and uncertain as to render the instrument an absolute nullity, as in case it affords no clue to the State, county or locality in which the land is situate, that it can not be made valid by reformation, but the mortgage under consideration is not void for uncertainty. White v. Stanton, 111 Ind. 540, 13 N.E. 48.
It was delivered to the auditor of Montgomery county to secure a loan of the common school fund of the State, and it shows upon its face that it was signed and acknowledged in that county by mortgagors residing therein. Taking into consideration the facts which appear upon the face of the mortgage, that the mortgage was signed and acknowledged in Montgomery county, by residents of that county, and that the law required the auditor to take security on land situate in that county, and the legal presumptions which flow from those facts make the present a case in which a true description may be supplied by the aid of proper averments in the complaint. Dutch v. Boyd, 81 Ind. 146; Bryan v. Scholl, 109 Ind. 367, 10 N.E. 107.
In the first paragraph of her separate answer the defendant Lavina Noland alleged, in substance, that she was a married woman at the time she executed the mortgage in suit, being then, and still continuing, the wife of her co-defendant, Erastus C Noland; that the mortgaged real estate was owned by herself and husband as tenants by the entireties, and...
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