Stanton v. Kenrick

• Decision Date: 01 November 1893
• Parties: STANTON v. KENRICK et al.
• Court: Indiana Supreme Court

135 Ind. 382

35 N.E. 19

STANTON

v.KENRICK et al.

Supreme Court of Indiana.

Nov. 1, 1893.

Appeal from circuit court, Carroll county; A. W. Reynolds, Judge.

Action by Charles D. Kenrick against Squire B. Stanton and another. Judgment for plaintiff against Stanton, and he appeals. Reversed.

John T. Dye, John H. Gould, and Geo. R. Eldridge, for appellant. Foley & Foley & Pierce, for appellees.

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. Rowen, 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 9, 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, said 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 Kenrick 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 Kenrick, 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 Kenrick 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...