State Bldg. & Loan Ass'n v. Brackin

• Citation: 62 N.E. 91,27 Ind.App. 677
• Court: Court of Appeals of Indiana
• Decision Date: 26 November 1901
• Parties: STATE BUILDING & LOAN ASS'N v. BRACKIN.

27 Ind.App. 677

62 N.E. 91

STATE BUILDING & LOAN ASS'N

v.BRACKIN.

Appellate Court of Indiana, Division No. 1.

Nov. 26, 1901.

Appeal from circuit court, Blackford county; E. C. Vaughn, Judge.

Proceeding to review a judgment by the State Building & Loan Association against Henry R. Brackin, trustee. Judgment for defendant, and complainant appeals. Affirmed.

Clifford, Browder & Moffett, for appellant. C. W. Kinnan and J. A. Remy, for appellee.

ROBINSON, C. J.

A demurrer was sustained to appellant's complaint to review a judgment, and this ruling is assigned as error.

In the original action, as appears from the transcript filed with the complaint, appellant sued Alexander Watt on a note to foreclose a mortgage executed by Watt and wife, dated November 30, 1895. The Montpelier Land & Oil Company, William Bosson, trustee, Walter H. McDermitt, Clara McDermitt, and I. W. Saylor & Co., each claiming some interest in the land mortgaged, were made defendants to answer to their interest. Bosson, trustee, filed a disclaimer, and the other defendants were defaulted, except the land company, which answered in two paragraphs. Afterwards, appellee, Brackin, upon his own application, was made a party defendant, and filed a cross complaint against his codefendants and appellant, averring that on October 9, 1895, Alexander Watt had executed three notes to the Montpelier Land & Oil Company, and on the same day Watt and wife mortgaged the land in question to secure their payment, and that afterwards the land company transferred the notes and mortgage for a valuable consideration to Brackin, as trustee, for certain parties named. The land company then filed a disclaimer. Brackin then answered the complaint in three paragraphs, alleging the execution of the notes and mortgage to the land company, and their assignment to him as trustee, and that appellant, to avoid the expense of a foreclosure and to acquire title to the land, had accepted a deed in fee to the land from one McDermitt, who had acquired the title, and that the conveyance was made and accepted in payment and satisfaction of the mortgage, which thereupon became merged in the deed, and that ever since appellant had collected the rents and profits of the land, and applied the same to his own use. The record shows the parties appeared by counsel, and upon Brackin's application the cause was continued. Afterwards, upon the appearance of the parties, Brackin filed a fourth and fifth paragraph of answer, alleging the execution of the notes and mortgage to the land company; their assignment to Brackin; that McDermitt conveyed the land to one Bosson, as trustee, for appellant, which conveyance was made in consideration of Bosson assuming the payment of all incumbrance against the property, which conveyance was accepted by appellant; and asking that the land company mortgage be declared a first and senior lien. Brackin then filed an amended cross complaint, averring the execution of the notes and mortgage to the land company, and their assignment to him as trustee; the conveyance of the land by McDermitt to Bosson, as trustee, for appellant; and that in the deed of conveyance, which was accepted by the trustee and plaintiff, the payment of the note and mortgage was assumed and agreed to be paid by Bosson, as trustee; prayer for personal judgment and decree of foreclosure. Appellant replied in denial to the first, second, fourth, and fifth paragraphs of Brackin's answer. On the 1st day of July, 1898, process was ordered on the cross complaint for Watt and Watt, and by publication as to the McDermitts, and the following entry made: “Cause on cross complaint is now continued as to above defendants. Cause, being at issue, is now submitted to the court for trial, a jury being waived, and the court, after hearing the testimony of witnesses and proofs adduced, takes this cause under advisement.” On November 14, 1898, “the same being the day and hour said cause was set for trial and further proceedings therein,” a further hearing was had; and “after hearing and testimony of witnesses and the proof adduced, and having sufficiently advised itself on the proceedings formerly had in the cause,” the court found for Brackin, trustee, on the notes, that he was entitled to a foreclosure, that appellant's mortgage was merged in the fee simple, and that plaintiff had agreed to pay the cross complainant's mortgage and notes secured thereby, and a judgment was rendered against plaintiff for the sum due and foreclosure decree. Four days later plaintiff moved for a new trial, on the ground that the finding was contrary to law and the evidence, which motion was overruled, and an appeal prayed and granted to the supreme court.

It is averred in the complaint to review that the amended cross complaint was insufficient to authorize a personal judgment against appellant; that the court erred in going to trial on the amended cross complaint without appearance, service, default, or issue thereon as to appellant; that no appointment or qualification of the special judge is shown; error in overruling the ...