Pattison v. Babcock

• Decision Date: 20 February 1892
• Docket Number: 15,450
• Parties: Pattison v. Babcock et al
• Court: Indiana Supreme Court

30 N.E. 217

130 Ind. 474

Pattison v. Babcock et al

No. 15,450

Supreme Court of Indiana

February 20, 1892

From the Starke Circuit Court.

Judgment affirmed.

N. L Agnew and B. Borders, for appellant.

W. O Johnson and J. S. Slick, for appellees.

OPINION

McBride, J.

The appellee owned certain real estate in Pulaski county which he conveyed to the appellant.

She, with her husband, executed to him notes for the purchase-money, and also executed to him a mortgage on the property as security for the notes. This was a suit on the notes and to foreclose the mortgage.

The appellant answered in four paragraphs.

The first was the general denial.

The second and third were pleas of suretyship, alleging, in substance, that when the notes and mortgages were executed she was a married woman, that the debt represented by the notes was her husband's debt, and that she executed them as his surety only.

The fourth paragraph alleged, simply, that she received no consideration for the notes, and was, when she executed them, a married woman.

To this paragraph the court sustained a demurrer.

The first assignment of error challenges the correctness of this ruling. The answer in question is not good as a plea of want of consideration, and, if sustained at all, it could only be as being in effect a plea of suretyship. It is unnecessary for us to consider whether its averments are sufficient, viewing it as a plea of that character, for the reason that the appellant already had the full benefit of that defence under two other answers.

Even assuming this answer to be good, therefore, there could be no available error in the ruling.

The remaining questions in the record may all be properly and profitably considered together.

The court made a special finding of the facts, which, in so far as it is material to any question arising on this appeal, is substantially as follows:

On and before August 1st, 1883, the appellee, who was a resident of Fulton county, was the owner in fee of the mortgaged land, consisting of forty acres, situated in Pulaski county, which was subject to the lien of the taxes for the year 1883, and a ditch assessment of $ 85.50. The appellant, who was then the wife of one George H. Van Gorder, resided with her husband in Fulton county. Some two years later Van Gorder deserted her, and she was subsequently divorced from him, and intermarried with the appellee Harris E. Pattison.

The appellee, desiring to sell the land, called upon Van Gorder a few days before August 1st, 1883, and offered to sell it to him for $ 400, in payments, the liens on the land to be assumed as a down or cash payment. Van Gorder informed him that he thought his wife would take it, and requested him to wait a few minutes until he could confer with her. Van Gorder went away, but soon returned, and informed the appellee that his wife would take the land. It was then arranged between the appellee and Van Gorder that the appellee should return to his home in Fulton county, and, with his wife, execute a deed for the land to the appellant subject to said liens, and should cause to be prepared notes and a mortgage covering the deferred payments of purchase-money, and should send them to the bank at Winamac, Indiana, with instructions to the bank to deliver the deed, on the execution by Van Gorder and the appellant of the notes and mortgage.

The court finds that during the negotiations the appellant and appellee never met; that there was no communication between them; and that the appellant had never, prior to that time authorized Van Gorder to act for her. The appellee having, with his wife, signed, sealed and acknowledged the deed, sent it, with the notes and mortgage, to the bank at Winamac. Van Gorder called at the bank and got the notes and mortgage, and he, with the appellant, signed them, and acknowledged the mortgage before a notary public. The...