Pension Fund of Disciples of Christ v. Gulley

• Decision Date: 22 October 1948
• Docket Number: 28438.
• Citation: 81 N.E.2d 676,226 Ind. 415
• Parties: PENSION FUND OF DISCIPLES OF CHRIST v. GULLEY et al.
• Court: Indiana Supreme Court

81 N.E.2d 676

226 Ind. 415

PENSION FUND OF DISCIPLES OF CHRIST v. GULLEY et al.

No. 28438.

Supreme Court of Indiana

October 22, 1948

Appeal from Circuit Court, Montgomery County Howard L. Hancock, judge.

Harding & Harding, of Crawfordsville, Johnson, Zechiel &amp Johnson, of Indianapolis, and Harry Fine, of Crawfordsville for appellant.

Kane Blain & Hollowell and Fenton, Steers, Beasley & Klee, all of Indianapolis, and Foley, Foley & Burroughs, of Crawfordsville, for appellees.

STARR Judge.

On November 29, 1940, the appellant started this action to foreclose a certain mortgage on real estate located in Hendricks County. From a judgment in favor of the appellees, rendered June 18, 1946, this appeal is prosecuted.

No questions have been raised as to the sufficiency of the pleadings or the form of the judgment rendered herein. The appellant has assigned as error the overruling of its motion for a new trial, the grounds of which motion are that the decision of the court is not sustained by sufficient evidence and is contrary to law. Under this assignment the appellant questions only the evidence.

The admitted facts in this case disclose that on or about September 17, 1938, one Bernice E. Shirley, who was then the owner of the involved real estate, conveyed the same by warranty deed to Charles F. Tucker and Helen Claire Tucker, who were then husband and wife, and who, by virtue of said conveyance, became owners of the property as tenants by the entirety; that on or about December 12, 1938, and while the said Tucker and Tucker were the owners of said real estate as tenants by the entirety, the said Charles F. Tucker delivered to the appellant a series of notes in the aggregate sum of $15,000 along with a warranty mortgage covering the involved real estate to secure said notes; that the mortgage and each of the notes purported to be signed by Charles F. Tucker and Helen Claire Tucker; that upon the receipt of the mortgage and notes, appellant advanced to Charles F. Tucker the sum of $15,000; that the signature of Helen Claire Tucker to said mortgage and to each of said notes was forged by Charles F. Tucker, which fact was unknown to the appellant who was under the impression, at the time it advanced the money, that they were loaning the same to both the husband and wife; that Helen Claire Tucker has never ratified the execution of this mortgage or said notes and has received none of the benefits from the loan; that at the time of the bringing of this action Bernice E. Shirley had on file in the Hendricks Circuit Court, a suit against Tucker and Tucker wherein she was seeking to set aside her said conveyance of the involved property, and to quiet her title thereto. This suit was based on

the ground that her deed had been procured by fraud on the part of the grantee, Charles F. Tucker. It was due to this suit that Bernice E. Shirley was made a party defendant to the present action; that on December 6, 1941, a decree was entered in the suit of Bernice E. Shirley, setting aside her afore-mentioned deed and her title to the involved property was quieted as against Tucker and Tucker.

During the course of the present litigation, the death of Bernice E. Shirley was suggested to the trial court and appellees, Otis E. Gulley, as executor of her will, and Otis E. Gulley as trustee of her will, were substituted and made parties defendants.

On March 6, 1941, Helen Claire Tucker, filed suit for divorce against Charles F. Tucker, which resulted in a decree in her favor on January 11, 1942.

At the second trial of this cause, judgment was rendered in favor of the appellee, Helen Claire Tucker, and against the other appellees herein. This judgment was rendered more than ninety days prior to the filing of the transcript herein. Only the defendants against whom judgment was rendered filed a motion for a new trial, which was granted and resulted in the judgment herein appealed from. This appeal is therefore dismissed as to Helen Claire Tucker.

Appellant's contentions are; first, that although the mortgage was executed by the husband alone, he had a mortgageable interest because his mortgage is not void but subject to defeat only in case his wife survives; second, that not having been made a defendant to the suit of Bernice E. Shirley to set aside her deed of conveyance, it is not bound by the decree therein, that by this decree the Tuckers became tenants in common of the involved real estate, and by virtue of the warranties in the mortgage, the acquisition of Charles F. Tucker inured...