Swatts v. Bowen
| Decision Date | 15 May 1895 |
| Docket Number | 17,322 |
| Citation | 40 N.E. 1057,141 Ind. 322 |
| Parties | Swatts v. Bowen et al |
| Court | Indiana Supreme Court |
From the Carroll Circuit Court.
The judgment is affirmed.
N. J Howe, for appellant.
B. K Elliott and W. F. Elliott, for appellees.
Allen Hobaugh, the owner of certain lands, mortgaged the same to one Grantham, who assigned the mortgage and note secured thereby to the appellee Bowen. Bowen sued his co-appellees and the appellant to foreclose his mortgage, and the appellant answered affirmatively and filed a cross-complaint seeking to foreclose an alleged senior mortgage. Demurrers were sustained to said answer and the cross-complaint, which rulings are assigned as error. Said answer and cross-complaint each averred substantially the same facts, and pleaded that on the 27th day of November 1864, a mortgage of said lands was executed by the then owner thereof to the appellant's mother, who died testate leaving, by her will, said mortgage and the note secured thereby to the appellant, who was, and still is, the owner thereof. That by successive conveyances of said lands, the appellant became the owner thereof on the 6th day of October, 1886; that said note and mortgage held by her had not been satisfied, but had been held by her intending to keep the same alive and unmerged for her protection against the mortgage of the appellee, Bowen; that all of said mortgage debt, excepting the sum of $ 12.50 paid thereon in the year 1869, was due and unpaid. It was alleged that the note had, in 1885, been lost by her, and that no copy could be supplied, and a copy of the mortgage was exhibited.
The appellant's mortgage was executed nearly nineteen years before that of the appellee, Bowen; it was executed twenty-two years before the appellant's purchase of the land and twenty-nine years before the present suit was instituted. Neither the cross-complaint nor the answer alleged the time of the maturity of the note and mortgage so asserted by the appellant.
The ruling of the court can not be upheld upon the statute of limitations, though more than twenty years elapsed from the date of the claim involved to the bringing of this suit or the filing of the answer or cross-complaint, since it does not appear affirmatively that the appellant was not within some of the statutory exceptions to the rule of limitation as prescribed in sec. 297, R. S. 1894, and sec. 296, R. S. 1881. See Bauman v. Grubbs, 26 Ind. 419. Unless the pleading disclose that the exceptions do not exist it is not subject to demurrer upon the statute of limitation. Hogan v. Robinson, 94 Ind. 138; State, ex rel., v. Younts, 89 Ind. 313; Lucas v. Labertue, 88 Ind. 277; Thompson v. Parker, 83 Ind. 96; Shewalter v. Bergman, 123 Ind. 155, 23 N.E. 686; Falley v. Gribling, 128 Ind. 110, 26 N.E. 794.
It will be noticed that we have said that the lapse of time from the date of the claim being regarded it is sufficient. We do not forget that ordinarily the period of limitation begins with the maturity of the obligation, but here, as we have shown, there is nothing disclosing the date of maturity. In such case the presumption arises that the obligation was payable upon demand. Kraft v. Thomas, Exr., 123 Ind. 513, 24 N.E. 346; 2 Am. and Eng. Ency. of Law, p. 327.
It is further insisted that by the meeting, in the appellant, of the legal and the equitable title, merger took place, and the legal title was held subject to the appellee Bowen's mortgage and freed from the senior mortgage. It was alleged that the mortgage of the appellee was not satisfied, but was maintained for the purpose and with the intention of keeping it alive and protecting the legal claim against the appellee's junior mortgage.
Appellee's learned counsel concede that equity will interfere to prevent a merger when justice requires it, and when he who asks it has done equity and comes with clean hands.
They quote from Prof. Tiedeman's work on Equity Jurisprudence, section 119, that: "While as a general rule the merger, which otherwise would prevail, at common law, is prevented by equity for the purpose of preventing injury to the interests of the parties to the transaction; on the other hand, if the precaution of merger would work an injury or wrong, or would aid in effecting a fraud, equity would not interpose for the prevention of the merger; and any extraordinary circumstances, which would indicate that the prevention of the merger would have such an evil effect, could be established as a defense against the interference of equity."
If we may presume that the mortgage of the appellee is a valid, subsisting lien, in the absence of a merger, and that it is enforceable, in the absence of the statute of limitations, and we know of no reason why we should not so presume, it would occur to us that no injury or wrong would result to the appellee Bowen to maintain the priority of the mortgage standing as a senior lien when he took his mortgage. We observe no reason why he should occupy a better position, with relation to his security, because the appellant has purchased the legal title than if it had been purchased by another or held by his mortgagor. It can be no hardship to require him to maintain the standing he voluntarily assumed, as a junior mortgagee.
The purchase of the legal title by the appellant did not soil her hands and by owning that title she is enabled to do no more than another could do, namely: subject her property to the payment of the appellee's claim, after the satisfaction of the senior mortgage. By purchasing she has certainly committed no injustice that should operate to stay the interference of equity to protect her mortgage against a junior mortgage.
As we have said, regarding the appellant's lien as valid and enforceable, it would certainly subserve the ends of justice to keep it alive, unless the appellee intended to merge it. This we understand to be the test. Myers v. O'Neal, 130 Ind. 370, 30 N.E. 510; Hanlon v. Doherty, 109 Ind. 37, 9 N.E. 782; Elston v. Castor, 101 Ind. 426; Haggerty v. Byrne, 75 Ind. 499; Smith v. Ostermeyer, 68 Ind. 432; Howe v. Woodruff, 12 Ind. 214; Coburn v. Stephens, 137 Ind. 683, 36 N.E. 132; Jewett v. Tomlinson, 137 Ind. 326, 36 N.E. 1106. Nor do we understand that a purchaser of the legal title, or the equity of redemption at a foreclosure sale, thereby assumes the payment of all liens junior to that upon which he buys. We do not understand Bunch v. Grave, 111 Ind. 351, 12 N.E. 514, to so hold and certainly the contrary doctrine is enforced in the later cases of Myers v. O'Neal, supra, and Jewett v. Tomlinson, supra.
It is insisted also that the appellant lost her right to enforce her mortgage by her long delay and laches. She certainly suffered none from laches during the period of limitation, since the law gave her twenty years in which to maintain an action to foreclose her mortgage. As we have already seen we can not adjudge as a question of law arising upon the pleadings that the period of limitation has yet expired. There is no doubt that, as held in Long, Exr., v. Straus, 124 Ind. 84, 24 N.E. 664, and Garnier v. Renner, 51 Ind. 372, a jury may properly consider long delay in urging a claim as a circumstance tending to raise the presumption of payment. Here there are no other circumstances than delay and since the law may have authorized that delay, we can not hold the delay conclusive of payment. See Potter v. Smith, 36 Ind. 231; Harper v. Terry, 70 Ind. 264; Scherer v. Ingerman, Admx., 110 Ind. 428, 11 N.E. 8.
It is further suggested that a copy of the note should be exhibited, or an excuse alleged for not doing so. The alleged loss of the note by the appellant was a sufficient excuse for not filing a copy with her pleading. Douthit v. Mohr, 116 Ind. 482, 18 N.E. 449; Anderson, etc., Tp., v. Thompson, 92 Ind. 556; Blasingame v. Blasingame, 24 Ind. 86.
The alleged loss of the note in the year 1885 was sufficient to avoid the tender of indemnity against the recovery by another upon the note, since by the...
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