Smith v. Lowry

• Citation: 113 Ind. 37,15 N.E. 17
• Parties: Smith et ux. v. Lowry.
• Decision Date: 17 January 1888
• Court: Supreme Court of Indiana

113 Ind. 37

15 N.E. 17

Smith et ux.

v.Lowry.

Supreme Court of Indiana.

January 17, 1888.

Appeal from circuit court, Madison county; D. Moss, Judge.

Robinson & Lovett, for appellants. M. A. Chipman, for appellee.

Howk, J.

This is the second appeal to this court in this case. On the former appeal herein, the opinion and judgment of this court are reported under the title of Lowry v. Smith, 97 Ind. 466. We then reversed the judgment of the court below, and held that each of two paragraphs of the complaint of plaintiff, James Lowry, “contained a good cause of action as to the sum of $200 and interest.” When the cause was remanded to the court below, plaintiff, Lowry, discovered that the land described in each paragraph of his complaint was conveyed to Clarissa Smith, wife of George H. Smith, theretofore sole defendant herein; and thereupon he amended each paragraph of his complaint by making the wife, Clarissa, as well as the husband, George H. Smith, parties defendants therein. Both defendants appeared, and answered jointly in three paragraphs, of which the first was a general denial of the complaint, and each of the other paragraphs was a special defense. To each of the special paragraphs of answer appellee's demurrers were sustained by the court, leaving the cause at issue on the general denial of complaint. The issues joined were submitted to and fully heard by the court, and its finding was made in favor of plaintiff, Lowry; and, over the joint motion of defendants for a new trial or hearing, the court rendered its final judgment and decree herein in accordance with its finding and the prayer of plaintiff's complaint.

In this court, errors are jointly assigned by the appellants, defendants below, which call in question (1) the sustaining of the demurrers to the second and third paragraphs of their answer; (2) the overruling of their motion for a new trial. In each paragraph of his complaint, plaintiff alleged that on the eighteenth day of March, 1880, he was the owner of certain real estate, particularly described, in Madison county, Indiana, which real estate he had theretofore mortgaged to one Jackson Brunt to secure the payment of $3,300, evidenced by the several notes of plaintiff to said Brunt, maturing at different dates, as shown by such mortgage, which was duly recorded in the proper recorder's office; that afterwards, on said eighteenth day of March, 1880, plaintiff sold and conveyed such real estate, by his deed, to one Nathan Lowry, who assumed and agreed to pay, as stated in such deed, as part of the purchase money, the sum of $500 of the debt secured by mortgage to said Brunt as aforesaid; that such deed was recorded in the recorder's office of Madison county on the nineteenth day of March, 1880, but that, by the misprision of such recorder, the deed was so recorded as to show that the grantee therein assumed and agreed to pay only $200, instead of $500, of the mortgage debt of the grantor to Jackson Brunt; that such grantee, Nathan Lowry, never paid any part of the $500 of such mortgage debt which he assumed and agreed to pay, but died insolvent, leaving no property or estate, and plaintiff was compelled to pay and had paid the whole amount of such mortgage debt; and the defendant, Clarissa Smith, was a subsequent purchaser and grantee of such mortgaged real estate, claiming title thereto through and under the said Nathan Lowry, and his deed thereof, as aforesaid, from the plaintiff herein. Upon the foregoing facts, plaintiff asserted, in the first paragraph of his complaint, a vendor's lien upon such real estate for the $500 of the mortgage debt which Nathan Lowry agreed to pay as part of his purchase money, and sought to enforce such lien against defendant, Clarissa Smith, as a subsequent purchaser and grantee of the premises, with notice. In the second paragraph of his complaint, upon the facts aforesaid, plaintiff asks to be subrogated to the Brunt mortgage for the amount of the mortgage debt assumed by Nathan Lowry, and for the foreclosure of such mortgage for that amount against defendants, as purchasers and grantees, with notice of the mortgaged real estate.

Before the cause was submitted to the court below for final hearing, appellee, Lowry, withdrew the first paragraph of his complaint, and, as the second paragraph of defendant's answer was addressed on its face to the first paragraph of complaint only, it also was withdrawn from the record. The only question, therefore, presented for our decision by the first error of which appellants complain is this: Did the court below err in sustaining the demurrer to the third paragraph of their answer? In this third paragraph of answer, which was pleaded as a defense to the second paragraph only of plaintiff's complaint, defendants admitted that plaintiff, as the owner of the real estate described, executed a mortgage thereon to James A. J. Brount, called Jackson Brount in the complaint, to secure the payment of $3,300, which mortgage was duly recorded in the proper recorder's office; and that afterwards, on the eighteenth day of March, 1880, plaintiff sold and conveyed such real estate to Nathan Lowry by deed, wherein the said Nathan assumed and agreed to pay $500 of such mortgage debt as part of the purchase money; and that such deed was in due time recorded in the proper recorder's office, but that, by the mistake of the recorder in recording such deed, it was shown by the record thereof that Nathan Lowry assumed and agreed to pay $200, instead of $500, of such mortgage debt. But defendants averred that plaintiff ought not to recover herein, because they said that on the twenty-sixth day of August, 1882, defendant, Clarissa Smith, purchased such real estate at the sale thereof by the administrator de bonis non of Nathan Lowry, deceased, pursuant to an order of the proper court made prior to such sale; that long before such administrator's sale, and the purchase of such real estate by said Clarissa Smith, the plaintiff's mortgage to said Brunt was fully discharged and satisfied of record by the entry of such satisfaction on the margin of the record thereof in the proper recorder's office, which entry was duly signed by the mortgagee, Brunt, and was attested by the county recorder in due form of law, and was in the words and figures following, to-wit:

“This mortgage is duly paid off and satisfied, and discharged of record, this September 24, 1881.

Attest: A. C. Davis, R. M. Co.”

+-------------------------------+
                ¦[Signed.]¦“James A. J. Brunt.” ¦
                +-------------------------------+
                

Defendants further averred that said mortgage was the same mortgage referred to in said deed made to said Nathan Lowry as aforesaid, and said James A. J. Brunt was the same person described in such deed as Jackson Brunt. That, at the time of such purchase by said Clarissa Smith at said administrator's sale, defendants had no notice or knowledge that plaintiff had paid off said mortgage, and the sum so assumed by said Nathan Lowry, as evidenced by such deed; but they believed, as they lawfully might, that payment of the sum named in said deed, as assumed by said Nathan Lowry, had been made by him or his legal representatives; and they believed, as they lawfully might, that such mortgage, and the amount thereof assumed by said Nathan Lowry, had been fully discharged, and that no lien existed against such real...