State ex rel. Crooks v. Kennett

• Citation: 114 Ind. 160,16 N.E. 173
• Parties: State ex rel. Crooks, Auditor, v. Kennett et al.
• Decision Date: 23 March 1888
• Court: Supreme Court of Indiana

114 Ind. 160

16 N.E. 173

State ex rel.Crooks, Auditor,

v.Kennett et al.

Supreme Court of Indiana.

March 23, 1888.

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

Suit to foreclose a mortgage, by James W. Crooks, auditor, plaintiff, against William Kennett, Rebecca Kennett, Joel C. Jackson, Eunice Jackson, and Max Bahr, defendants. A petition was filed by defendant Eunice Jackson, asking to be made a party defendant in the foreclosure proceedings. The lower court granted the petition, and plaintiff appeals.William S. Christian, for appellant. Stephenson & Feitig and Kane & Davis, for appellees.

Mitchell, C. J.

James W. Crooks, as auditor of Hamilton county, brought this suit to foreclose a real-estate mortgage executed by Joel C. and Eunice Jackson, on the 19th day of October, 1883, to the state of Indiana, for the use of the common-school fund, to secure the payment of a promissory note calling for $300, and signed by Joel C. Jackson. Mrs. Eunice Jackson, not having been made a party to the complaint, appeared, and, by a petition to the court, asked that she might be admitted as a party to defend against the foreclosure of the mortgage. She accompanied her petition by an answer in which she exhibited her proposed defense. It appeared therein that Mrs. Jackson was the wife of Joel C. Jackson at the time the mortgage in suit was executed, and that she and her husband held the title to the land mortgaged, by warranty deed, as tenants by entireties, the land having been bought and paid for with her own separate means. It was alleged that the money secured by the mortgage was obtained by her husband, and used in his own individual business, and that she received no part thereof, nor did any part thereof go to her personal benefit, or to the benefit of any part of her estate. It appeared that after the mortgage in suit had been executed, the land was conveyed by warranty deed, in which Jackson and wife joined, to William Kennett, who, with his wife, Rebecca Kennett, was made a party defendant in the complaint. It is alleged that, in addition to the general covenants of warranty contained in the deed to Kennett, Jackson and wife at the same time united in an indemnifying mortgage upon other real estate held by them as tenants by entireties, in which they expressly stipulated to save their grantor, Kennett, harmless from any loss or damage by reason of the mortgage in suit, which the latter did not assume to pay. She alleged, further, that since the institution of the suit Kennett had notifyed her to appear and defend and make good the several covenants and warranties above mentioned. Upon the application and accompanying answer Mrs. Jackson was admitted to defend, and her answer was held sufficient upon a demurrer subsequently filed to it by the plaintiff. A special answer by Kennett, in which substantially the same facts as those contained in the answer of Mrs. Jackson were set up, was likewise held sufficient upon demurrer. While the suggestion is made that the defense of coverture, like that of infancy, is a personal defense, and is not available to third parties, the propriety of the ruling on the demurrer to Kennett's answer is not specially discussed in the appellant's brief. As the defense pleaded by Mrs. Jackson, if she had the right to plead it, would defeat the mortgage to all intents and purposes, it was doubtless deemed immaterial to discuss the merits of Kennett's answer. This is manifestly the correct view of the case, and we therefore give the answer of Kennett no special consideration.

It is true, in a general and qualified sense, that coverture, like infancy, is a personal defense, and cannot be set up by third persons for their benefit. The present occasion does not require that we refer to the cases to which the rule has more...