Ross v. Menefee

Citation25 N.E. 545,125 Ind. 432
Decision Date17 October 1890
Docket Number14,514
PartiesRoss et al. v. Menefee et al
CourtSupreme Court of Indiana

From the Benton Circuit Court.

Judgment affirmed.

D. E Straight and U. Z. Wiley, for appellants.

D Fraser and W. Isham, for appellees.

OPINION

Coffey, J.

The appellees filed a complaint, consisting of three paragraphs, in the Benton Circuit Court, against the appellants on the 15th day of April, 1887.

The first paragraph alleges that on the 10th day of March, 1883, the appellees were the owners of certain described personal property of the value of one thousand dollars; that the appellants being in possession of said property, unlawfully took, removed, carried away, sold and converted the same to their own use, to the damage of the appellees.

The second paragraph alleges that the appellees are the owners and entitled to the possession of certain described personal property of the value of fifteen hundred dollars; that appellants have possession of the same without right; that they unlawfully detain said property from the appellees to their damage in the sum of fifteen hundred dollars. Prayer for possession and for damages for the detention.

The third paragraph alleges that on the 5th day of January, 1883, the defendant, Thomas F. Redmond, was a resident of Benton county, Indiana, and was then the owner of the personal property described in the complaint, which property was then in the town of Fowler, in said county; that at that time the said Redmond was indebted by promissory note in the sum of $ 200 to the Commercial Bank of Oxford, Indiana, upon which note the appellees were sureties for the said Redmond; that for the purpose of indemnifying the appellees, and saving them harmless in the event they should be compelled to pay said note, the said Redmond, on the 5th day of January, 1883, executed to the appellees a chattel mortgage on said property; that at that time the said Redmond was insolvent, having no property except that covered by said mortgage; that said mortgage was duly recorded in Benton county on the said 5th day of January, 1883; that on the 18th day of February, 1883, appellees, at the request of said Redmond, fully paid said note which they were compelled to pay by reason of their said suretyship, and that no part of the same has ever been repaid; that, on the day of -----, 1883, the defendants Redmond, Switzer, Ross and Hartley, without the knowledge or consent of the appellees, unlawfully and wrongfully, with full knowledge of said mortgage, and against the rights of the appellees, seized, took and carried away and sold said property to their co-defendant David J. Eastburn, and removed the same to the town of Kentland, in Newton county, thereby unlawfully converting and appropriating the same to their own use; that while said property was in the possession of the said Eastburn the same was entirely burned up and destroyed, whereby appellees have been damaged in the sum of five hundred dollars.

The appellants, Ross and Eastburn, demurred to each paragraph of the complaint for want of facts sufficient to constitute a cause of action. The demurrer was overruled by the court, and the propriety of this ruling is challenged here by a proper assignment of error.

No objection to the first paragraph of the complaint is pointed out by counsel in their brief in this case. The objection urged against the second paragraph is that it does not allege that the appellants unlawfully obtained possession of the property therein described.

We do not think such allegation necessary. This paragraph is substantially in the form given in 3 Works Pleading and Practice, 277, and has been repeatedly held sufficient by this court. The question as to the means by which the appellants obtained possession is immaterial, if at the time of the commencement of the suit they were unlawfully detaining the same from the appellees.

It is contended that the third paragraph of the complaint is not sufficient:

First. For the reason that it appears from the face of the pleading that the note therein described was paid by the appellees before maturity.

Second. That it appears by a copy of the mortgage filed with this paragraph, that the mortgage executed by Redmond to the appellees was subject to another mortgage from which they have not redeemed.

Third. That it is not sufficient as to Eastburn because it does not charge that he took and converted the property therein described, or that he took, sold or carried the same away.

It is contended by the appellants that if a surety pays the debt of his principal before maturity, it is a voluntary payment and he can not recover from his principal, but this court has decided otherwise. White v. Miller, 47 Ind. 385; Jackson v. Adamson, 7 Blackf. 597.

It is true that if the surety pays the debt of the principal before maturity he can not maintain an action until the time for payment has expired, but if he is not repaid at that time there is no reason why he may not sue to recover the amount which he paid in discharge of the debt.

This suit is not based upon the mortgage executed by Redmond to the appellees, but is based upon the alleged wrongful conversion of the property therein described. Such being the case, the mortgage can not be made a part of the complaint by filing a copy thereof. The mortgage is not before us for any purpose. Huff v. City of Lafayette, 108 Ind. 14, 8 N.E. 701; Briscoe v. Johnson, 73 Ind. 573; Jackson v. State, 103 Ind. 250, 2 N.E. 742; Tindall v. Wasson, 74 Ind. 495; Carter v. Branson, 79 Ind. 14; Huseman v. Sims, 104 Ind. 317, 4 N.E. 42; Pickering v. State, 106 Ind. 228, 6 N.E. 611.

While it is not directly alleged that Eastburn took and carried away and converted to his own use, the property covered by the mortgage of the appellees, it is alleged that he and the other defendants took possession of it and removed it from the town of Fowler, in Benton county, to the town of Kentland, in Newton county, where it was destroyed by fire while in the possession of Eastburn.

One who purchases personal property encumbered by a valid mortgage lien, and converts such property to his own use, is liable to the person holding and owning such mortgage. McFadden v. Hopkins, 81 Ind. 459; Duke v. Strickland, 43 Ind. 494. In the last case cited, John Hosier mortgaged to Duke ten acres of growing wheat. Hosier cut, threshed and sold the wheat to Strickland, in the open market, Strickland having no actual notice of the mortgage. It was held that Strickland was liable to the mortgagee for the value of the wheat. The theory of the law is that a chattel mortgage vests in the mortgagee the title to the chattel. Lee v Fox, ...

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