Spaulding v. Harvey

• Citation: 28 N.E. 323,129 Ind. 106
• Decision Date: 19 September 1891
• Docket Number: 15,180
• Parties: Spaulding v. Harvey et al
• Court: Supreme Court of Indiana

28 N.E. 323

129 Ind. 106

Spaulding v. Harvey et al

No. 15,180

Supreme Court of Indiana

September 19, 1891

From the Grant Circuit Court.

Judgment affirmed, with costs.

A. E Steele and J. A. Kersey, for appellant.

G. W Harvey and H. J. Paulus, for appellees.

OPINION

McBride, J.

November 28th, 1886, Almaretta Lockwood, one of the appellees herein was the owner of an undivided interest in certain land in Grant county. On that day one Josiah Ferguson recovered a judgment in the Grant Circuit Court against her for $ 30 and costs, which became a lien on her interest in the land. December 28th, 1886, she, with her husband and co-appellee James H. Lockwood, were, by the Wells Circuit Court, adjudged of unsound mind, and incapable of managing their respective estates, and the appellant was duly appointed their guardian.

The guardianship was terminated by a judgment of the Wells Circuit Court, on the day of April, 1887, declaring them restored to their right minds, and again capable of managing their estates. On the 26th day of January, 1887, the Lockwoods applied to the appellees, Harvey and Paulus, to act as their attorneys in the institution and conduct of certain litigation, and represented to them that they had been already adjudged of sound mind, and their guardianship terminated. Harvey and Paulus, not knowing that this was untrue, accepted and entered upon the duties of the employment, and, to secure the compensation agreed upon, took from the Lockwoods a mortgage on the land in Grant county. On the day the mortgage was executed the land was advertised for sale by the sheriff of Grant county, on an execution issued on the Ferguson judgment.

Harvey and Paulus, to save the land from sale, and thereby protect their mortgage, paid to the sheriff $ 48.43, the amount of the judgment, with costs. This suit was originally commenced to foreclose the mortgage, but the Lockwoods and the appellant, who was joined as a defendant, attacked the validity of the mortgage, on the ground of the incapacity of the mortgagors when it was executed. The appellant, also, by a separate answer, which was supported on the trial by proof, showed that when he was discharged as guardian the Wells Circuit Court allowed him, for services, money expended, etc., $ 373.78, which the court adjudged to be a specific lien on the mortgaged land, and that a transcript of the judgment had been duly filed and recorded in the clerk's office of Grant county.

Harvey and Paulus thereupon, with leave of the court, and without objection from the defendants, filed a second paragraph of complaint, alleging the facts substantially as above stated and asking to be subrogated to the lien of the Ferguson judgment. This paragraph also contained averments charging that the representations made by the Lockwoods to Harvey and Paulus, that they had been adjudged of sound mind and relieved from guardianship, were not only false, but were fraudulently made to induce them to act as such attorneys and accept said mortgage. The circuit court found these averments to be true, and adjudged the mortgage void, but sustained the claim of Harvey and Paulus to be subrogated to the lien of the Ferguson judgment, with priority over the judgment...