Sluyter v. Union Central Life Insurance Company

• Decision Date: 08 January 1892
• Docket Number: 320
• Citation: 29 N.E. 608,3 Ind.App. 312
• Parties: SLUYTER v. THE UNION CENTRAL LIFE INSURANCE COMPANY
• Court: Indiana Appellate Court

29 N.E. 608

3 Ind.App. 312

SLUYTER v. THE UNION CENTRAL LIFE INSURANCE COMPANY

No. 320

Court of Appeals of Indiana

January 8, 1892

From the White Circuit Court.

Judgment affirmed, with costs.

E. B Sellers and W. E. Uhl, for appellant.

C. E Barrett, for appellee.

OPINION

ROBINSON, C. J.

The appellee commenced this action against the appellant and James W. Price to recover upon a bond executed by them to indemnify appellee against loss by reason of a certain ditch assessment against land the appellee was about to place a loan upon. The bond reads as follows, viz.: "We, James W. Price and Abram Sluyter, acknowledge ourselves indebted to the Union Central Life Insurance Company of Cincinnati, Ohio, in the sum of five hundred dollars, to be collected without relief from valuation or appraisement laws of the State of Indiana.

The conditions of the above obligation are as follows: that whereas, said James W. Price has obtained a mortgage loan from said life insurance company; and whereas, on the lands mortgaged there is now due, as shown by the records, the sum of $ 446.60, ditch tax. Now, if the said James W. Price shall pay all of said ditch tax, and save said company whole from the payment of all or any part thereof, then this bond shall be void; otherwise to remain in full force and effect in law.

"Witness our hands this March 21st, 1884.

"Signed, JAMES W. PRICE.

ABRAM SLUYTER."

The material allegations contained in the complaint were that the defendant James W. Price was the owner of certain lands in White county, Indiana, therein described, against which there were liens for ditch assessments on account of the Columbia E. Logan Ditch, established by the board of commissioners of said county, as shown by the records of said county; that said James W. Price was desirous of obtaining from the plaintiff a loan of two thousand dollars, to be secured by mortgage upon said lands, executed by said James W. Price and his wife; that, for the purpose of inducting plaintiff to make said loan and accept said mortgage, the defendants executed to the plaintiff their written obligation for the sum of five hundred dollars, upon condition that, if said James W. Price should pay all of said ditch assessments, and save plaintiff from the payment of all or any part thereof, then said obligation should be void (a copy of said obligation was filed with and made a part of the complaint); that in consideration of the execution of said obligation by the defendants, plaintiff, on said 21st day of March, 1884, made said loan of money to said James W. Price, and accepted said mortgage on said lands, without first requiring said ditch assessments to be paid and cancelled; that afterwards said James W. Price made default in the payment of said loan and the interest thereon, and plaintiff was compelled to bring an action to foreclose said mortgage, by which action plaintiff obtained judgment in said court May 25th, 1888, for the sum of $ 2,336.54, and costs, and an order for the sale of said lands to pay said sum; that one William V. White was made a defendant to said action to foreclose plaintiff's mortgage, and at the trial of said action set up a claim for a large sum of money paid by him at a sale of said land by the auditor and treasurer of said county, to pay said ditch taxes mentioned in defendant's obligation, which claim was sustained by judgment of said court, and decree was entered in favor of said William V. White for the sum of $ 560 on account of said sale and on account of said ditch assessments, which said court declared to be a lien upon said lands senior and paramount to the lien of plaintiff's mortgage, and the decree of sale entered in favor of plaintiff was subject to all claims of said William V. White; that said James W. Price, although notified of the claims of said White, wholly failed and refused to pay the same, and failed and refused to appear and defend against the same in said court, notwithstanding he was many times requested so to do, and said plaintiff was finally compelled to pay to said White, on account of said ditch assessment, a large sum of money, to wit, $ 550, which plaintiff had demanded of said James W. Price, which he had failed and refused to pay; and that demand had been made upon both defendants for the sum of money named in their obligation sued on, which they failed and refused to pay. Demand for judgment, etc.

James W. Price was not in court; he was not served with process, and did not appear to the action, and as to him the cause was dismissed.

The appellant demurred to the complaint for want of facts, which was overruled and exception taken.

The appellant then answered in three paragraphs: First. General denial. Second. That the instrument sued on was without consideration. Third. Admitting the execution of the instrument sued on, alleging the suretyship of the appellant, and that the ditch tax mentioned in the complaint was, at the time of the payment...