Simmons v. Meyers

• Decision Date: 31 March 1916
• Docket Number: No. 8920.,8920.
• Citation: 112 N.E. 31,61 Ind.App. 403
• Parties: SIMMONS v. MEYERS et al.
• Court: Indiana Appellate Court

61 Ind.App. 403

112 N.E. 31

SIMMONS

v.MEYERS et al.

No. 8920.

Appellate Court of Indiana, Division No. 2.

March 31, 1916.

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Suit by John B. Simmons against Benjamin F. Meyers and others. From a judgment for defendants, plaintiff appeals. Affirmed.Arthur R. Robinson, Frank A. Symmes, and Robert I. Marsh, all of Indianapolis, for appellant. Emsley W. Johnson and Joseph W. Hutchinson, both of Indianapolis, for appellees.

CALDWELL, J.

[1] Appellant filed his complaint in two paragraphs. In each he declared on a promissory note alleged to have been executed by appellee Benjamin F. Meyers, and indorsed by appellees Kuntz and Kuntz. In each paragraph he prayed a personal judgment against appellees Benjamin F. Meyers and Julia A. Meyers, his wife, and Martin J. Kuntz and Elizabeth M. Kuntz, his wife. By the first paragraph he sought also to foreclose against certain real estate owned by appellee Clint Parker a mortgage alleged to have been executed by Benjamin F. Meyers to secure the note. By the second paragraph, in addition to personal judgment as aforesaid, he sought to have declared and enforced against such real estate a vendor's lien in the amount of the note. The demurrer of each appellee to each paragraph of the complaint was sustained. In such ruling there was no error, as each paragraph disclosed affirmatively that the action was prematurely commenced. The note by its terms matured December 26, 1912, while the action was commenced March 28, 1912. Indianapolis, etc., Co. v. First National Bank, 134 Ind. 127, 33 N. E. 679;Walter A. Wood Co. v. Caldwell, 54 Ind. 270, 23 Am. Rep. 641;Middaugh v. Wilson, 30 Ind. App. 112, 65 N. E. 555;Norris v. Scott, 6 Ind. App. 18, 32 N. E. 103, 865;American, etc., Co. v. Gibson County, 145 Fed. 871, 76 C. C. A. 155, 7 Ann. Cas. 522; 1 R. S. L. 641; 1 C. J. 1152; 31 Cyc. 291.

Appellee Clint Parker and Hattie F. Parker, his wife, filed a cross-complaint, whereby they sought to quiet their title to a certain lot numbered 15 in Beech Grove, Marion county, Ind., being the real estate described in the mortgage, against all claims of appellant and coappellees thereto. Appellees Meyers and Meyers disclaimed. Appellant answered in general denial, and filed also certain paragraphs which he designated cross-complaints, whereby he brought to the attention of the court the same facts as pleaded in his complaint, and prayed as affirmative relief that the lien of said mortgage, and in the alternative that a vendor's lien in the amount of the note, be declared and established against said real estate. The issues being closed by general denials, the cause was tried by the court without a jury, resulting in a judgment and decree quieting title in appellee Clint Parker against all claims of appellant and appellees Meyers and Meyers and Kuntz and Kuntz.

[2] If there is evidence to sustain the decision in its material aspects, under the rule that governs on appeal, this cause must be affirmed. The evidence in some respects is contradictory. As tending to support the decision it is, in substance, as follows: December 26, 1910, Kuntz and Kuntz were the owners of the real estate described in the cross-complaint, and also of two other tracts situate in Beech Grove, one tract in Hartsville, and claimed to own a residence property in Marion, Ind. At the same time, Meyers owned an 80-acre farm in Michigan, and held also of Patterson M. Hearn a contract to purchase a 90-acre farm situate in Bartholomew county; deed to be made on the payment of $475, the balance of the purchase price. Appellee Julia A. Meyers owned an 80-acre farm in Bartholomew county. Each of these parcels of real estate was incumbered. On said day Kuntz and Kuntz executed their deeds, by which they conveyed to Meyers and Meyers by entireties the above five tracts of land owned by the former, in consideration of which the latter conveyed to the formerthe Michigan farm and Mrs. Meyers' Bartholomew county farm, and also procured Hearn to convey to Kuntz and Kuntz the 90-acre Bartholomew county farm. To procure the last-named conveyance to be made Kuntz and Kuntz executed to Hearn a mortgage on the 90-acre farm, to secure the payment of the $475 due the latter from Meyers. There is conflict in the evidence as to the circumstances under which Kuntz and Kuntz assumed and agreed to pay the $475 to Hearn. On this subject there was evidence to the following effect: Meyers and Meyers had not seen the Marion residence property prior to the trade. There was evidence that Kuntz represented it to them as an 8-room residence property in good condition, rented at $10 per month, worth $3,000, with no incumbrance, except a $750 mortgage, with 30 months to run; that, since Meyers and Meyers had not inspected this property, Mrs. Meyers should have the privilege of doing so, and that, if she found it as represented, she and her husband were to execute to Kuntz and Kuntz a note for $475, secured by mortgage on lot 15, described in the cross-complaint; that, if the Marion county property was not found to be as represented, no note or mortgage should be given. Kuntz testified that he had never seen the Marion residence property, and that he had no knowledge of its condition or title, except as represented to him by the person from whom he purchased it 3 months before he traded it to Meyers and Meyers.

The evidence is without contradiction that Mrs. Meyers refused to sign the note and mortgage until she had inspected the Marion property. Early in January Kuntz called on Meyers and Meyers at their homes in Bartholomew county for the purpose of procuring the execution of these instruments. Mrs. Meyers, however, had not made her trip to Marion. The note and mortgage therefore were not executed. She went to Marion in the latter part of January. While she was absent, Kuntz again called on Meyers. At this time Meyers signed the note and signed and acknowledged the mortgage. The latter bears date of January 28, 1911. The note, however, is dated December 26, 1910; it having been antedated. There was evidence that Kuntz, to procure Meyers to sign the instruments, made further representations respecting the Marion property. Meyers informed Kuntz that Mrs. Meyers intended to stop at the Kuntz home in Beech Grove as she was returning from Marion, and that she at that time would sign the note and mortgage if the Marion property was found to be as represented. Apparently for such purpose the instruments were delivered into the possession of Kuntz. There was uncontradicted evidence that Mrs. Meyers found the Marion property to be in a dilapidated condition; that it had been tenantless for three years; that it had been sold on mortgage foreclosure; and that the year for redemption had about expired. Mrs. Meyers as she returned from Marion stopped at the Kuntz home, but under the circumstances she refused to sign the note and mortgage. Kuntz testified that she gave as an additional reason that there was some misunderstanding between her and her husband respecting property rights.

The note signed by Meyers bears date of December 26, 1910, due in two years, principal $475, with interest at 6 per cent. payable to Martin J. Kuntz and Elizabeth M. Kuntz, signed only by Benjamin F. Meyers. The mortgage designates Meyers and Meyers, husband and wife, as mortgagors, and Kuntz and Kuntz as mortgagees, and describes said lot No. 15 as the real estate mortgaged to secure the note above described. It shows on its face that it was signed and acknowledged by Benjamin F. Meyers alone, under date of January 28, 1911. It was duly recorded May 6, 1911. Kuntz and Kuntz indorsed the note to appellee August 10, 1911. By a writing on the mortgage, acknowledged September 9, 1911, and duly recorded October 25, 1911, they transferred the mortgage to appellant. There was evidence that appellant paid full value for the note and mortgage.

In the transaction by which the note and mortgage were transferred to appellant, his attention was directed to the fact that Mrs. Meyers had not signed them. He was informed that the title to lot 15 was held by Meyers and Meyers as husband and wife, and that Mrs. Meyers had refused to sign the note and mortgage, because the Marion property was not as represented. Kuntz said to him, however, that the note represented a part of the unpaid purchase price of the lot.

[3] By a deed executed August 25, 1911, and recorded August 26, 1911, Meyers and Meyers conveyed lot 15 to appellee Clint Parker. Prior to accepting this conveyance Parker caused the title to the lot to be abstracted. The abstractor overlooked the mortgage mentioned above, and as a consequence the abstract did not show its existence. Parker had no actual knowledge that there was such a mortgage, or that there was any part of the purchase price of the lot unpaid. He had only such constructive notice as the records of the recorder's office afforded him. From the fact of such records he stood charged with constructive notice that there was such a mortgage; that it had been executed by Benjamin F. Meyers; that it had not been executed by Mrs. Meyers; and that the real estate described in the mortgage was held and owned by the former and his wife as tenants by the entireties.

[4][5][6] Proceeding to a consideration of the sufficiency of this evidence, it appears that, in order that the respective conveyances might be consummated, it was necessary that Hearn be paid the amount due him from Meyers. To that end Kuntz assumed such indebtedness and secured it by a mortgage on the 90-acre farm, and subsequently paid it. Under such circumstances, if Meyers and wife agreed to pay Kuntz and wife an equal amount, the debt thereby created represents an unpaid balance of the purchase price of the tracts of real estate conveyed to Meyers and wife, including lot 15. The court, however, was warranted in finding that the promise of Meyers and...