OPINION
Howard, J.
This
was a proceeding by the appellee Charles D. Kenrick to secure
equitable relief by a judgment against the appellant on the
assumption, by appellant, of payment of a mortgage debt due
by the appellee Kenrick to the appellee Edward W. Bowen. The
latter was also made a defendant.
The
complaint, in substance, states that on December 3, 1887
appellee Kenrick executed to Abner H. Bowen
notes for $ 458.88, and, to secure their payment, he and his
wife executed their mortgage on certain real estate; that
said Abner H. Bowen indorsed said notes to appellee Edward W.
Bowen, who, on April 17, 1890, recovered judgment on said
notes in the Carroll Circuit Court against appellee Kenrick
for $ 525.68, and a decree of foreclosure of said mortgage;
that on March 9, 1889, appellant and appellee Kenrick
mutually agreed, the said appellee to sell and appellant to
buy of appellee the land described in said mortgage, to
Bowen, and, in pursuance thereof, Kenrick and wife executed
their deed therefor to appellant, who accepted the same and
took possession of said real estate; that as part of the
consideration for said deed, expressed therein, the appellant
assumed the payment of said notes and mortgage. Wherefore,
etc., prayer for equitable relief and for judgment against
appellant for said $ 525.68, and interest thereon from April
17, 1890.
Copies
of said notes, mortgage, and deed were made exhibits with the
complaint.
A
demurrer to the complaint for want of facts was overruled.
The
answer was in three paragraphs, the second being a verified
general denial. The first paragraph did not differ materially
from the third.
The
third paragraph of answer was as follows:
After
admitting the execution of the notes and mortgage to Abner H.
Bowen, and the indorsement of the same to appellee, Edward W.
Bowen, it is averred that "on or about March 9th, 1889,
one Albert Stanton, a brother of this defendant, was about to
purchase of said Kenrick the lands described in the
complaint; and, to enable him to pay for the same, borrowed
from the Citizens' Bank of Delphi, Indiana, the sum of $
350, executing to said bank his promissory note therefor,
this defendant signing the same as surety for
said Albert; that to secure and save this defendant from loss
upon the liability so assumed by him as such surety to said
bank, it was agreed, between said Kenrick and Albert Stanton
and this defendant, that the deed of conveyance for said
lands should be made to this defendant, he to hold and retain
the same as a security until the payment of said note for $
350 to the Citizens' Bank, when and at which time this
defendant should reconvey the said real estate to the said
Albert Stanton; that the said plaintiff, Kenrick, did not, at
that time, or at any other time since, tender or deliver a
deed of conveyance of said lands to this defendant, who
never, at any time, received or accepted any such deed of
conveyance, nor did this defendant, at any time, promise,
undertake or assume to pay and satisfy the said notes of
Kenrick, held by the said Bowen, as alleged in the complaint,
nor was he, or is he, liable thereon.
"This
said defendant further avers that on the 13th day of January
1890, the said Edward W. Bowen commenced an action in the
said Carroll Circuit Court, of Indiana, upon said notes, and
to foreclose said mortgage described in the complaint, making
parties defendant to said action the plaintiffs in this
cause, said Albert Stanton and this defendant; that said
Bowen, in his complaint filed in said action, among other
things, alleged 'that on the 9th day of
March, 1889, said defendants, Charles D. Kenrick and Martha
B. Kenrick, his wife, conveyed by deed all the real estate
described in said mortgage to said defendant, Squire B.
Stanton, whereby said defendant, Squire Stanton, as a part of
the purchase money for said real estate, assumed and agreed
to pay all the notes secured by said mortgage, including the
notes sued upon in this complaint, thereby becoming the payor
to the payee of said notes. Said plaintiff
further avers that, by virtue of said deed of conveyance,
Squire Stanton is claiming to be the owner thereof. * * *
Wherefore, plaintiff demands * * * a personal judgment over
against Charles D. Kenrick and Squire Stanton.'
"That
this defendant, on the 27th day of January, 1890, in answer
to said Bowen's said complaint, filed, in this court, his
denial of the facts therein alleged, which answer was duly
verified by the affidavit of this defendant; that the said
plaintiffs herein appeared by their attorney in said action
by Bowen, and, on the 17th day of March, 1890, filed, in said
cause, their cross-complaint against the said Squire B.
Stanton, alleging therein the same matters, facts and things
charged in the complaint in this cause, and, in particular,
averring in their said cross-complaint that they, the said
plaintiffs, had agreed to sell, and the said Squire B.
Stanton had agreed to purchase of them, the real estate
described in the complaint herein, and that in pursuance of
said agreement the said Kenricks, on the 9th day of March,
1889, made, executed, and delivered to the said Squire B.
Stanton their warranty deed for said described lands, in
which deed, and as a part of the consideration to be paid for
said real estate, the said Squire B. Stanton assumed and
agreed to pay the said notes and mortgage sued upon in said
Bowen's complaint, which are the notes and mortgage
mentioned in this action, and that said Squire B. Stanton
accepted said deed, and the residue of the consideration for
said real estate was thereupon paid to said Charles D.
Kenrick by the said Squire B. Stanton, and possession of said
real estate was thereafter surrendered to and entered into by
the said Squire B. Stanton, pursuant to the terms of said
sale; that on April 1, 1890, in said action by Bowen, this
defendant filed, in this court, in answer to
said cross-complaint, his denial of the said facts therein
alleged, which answer was duly sworn to by this defendant;
that all other issues between the several parties to said
action being closed, the said court, without the intervention
of a jury, on the day of April, 1890, proceeded with the
trial of said cause, the said Kenricks being then and there
present in court at the trial, in person and by their
attorneys; that in said cause these plaintiffs, Kenricks,
employed counsel for the purpose of maintaining the
allegations and charges of their said cross-complaint, and
also for the further purpose of aiding and assisting the said
Bowen in maintaining and establishing the averments of his
said complaint; that at said trial of said cause, these
plaintiffs, Kenricks, acting in collusion with and for the
purpose of aiding said Bowen, testified in court as
witnesses; that they then and there introduced in evidence
the identical notes, mortgage, and deed of conveyance
mentioned in the complaint; and that they there and then
introduced all their other evidence in support of the said
allegations in their said cross-complaint contained, and also
introduced all other evidence they had in support of, and to
establish and maintain, the said averments of fact and
charges against this defendant contained in said Bowen's
complaint, acting in concert and collusion with the said
Bowen in all things pertaining to said trial; that at said
trial this defendant also introduced in evidence all his
proofs and testimony in support of, and to establish and
maintain, his pleas to said cross-complaint of said
plaintiffs, Kenricks, and his said pleas to said Bowen's
said complaint; that all the evidence of all the parties to
said action was then and there heard, noted and considered by
the judge of this court, and all the issues in said cause,
constituting the same identical issues and facts as in this
action, were there and then fully presented and tried.
"The said Squire B. Stanton further avers that
in said action instituted by Bowen, and in the conduct of the
same, there was no collusion or fraudulent concert or
combination or conspiracy between him and the said Bowen, or
between him and any other parties or party to said action,
but that therein he honestly and in good faith attempted to
maintain his said pleas of denial and non est
factum; that thereafter, on the 17th day of April, 1890,
the said judge of this court, Hon. Alfred W. Reynolds, being
then about to render his finding and judgment in said action
by Bowen, the said cross-complainants, Kenricks, who are
plaintiffs herein, still acting in concert with the said
Bowen, and with the fraudulent purpose of injuring this
defendant, dismissed their said cross-complaint against this
defendant, and the court then found that the said Charles D.
Kenrick alone was indebted upon said notes to the said Edward
W. Bowen in the sum of $ 525.68, and rendered judgment
against said Kenrick for said sum, and the court further
adjudged and decreed that said mortgage be foreclosed against
all of said defendants, and that the said lands be sold by
the sheriff of said county, as other lands are sold on
execution; and the court, upon the facts found, did not
render any judgment against this defendant upon said notes,
or either of them.
"The
said defendant, Squire B. Stanton, avers that all the
material matters, facts and issues in this action were fully
presented,...
