Taylor v. Hearn
| Decision Date | 12 May 1892 |
| Docket Number | 15,804 |
| Citation | 31 N.E. 201,131 Ind. 537 |
| Parties | Taylor v. Hearn et al |
| Court | Indiana Supreme Court |
From the Jay Circuit Court.
Judgment affirmed.
D. T Taylor, J. W. Headington and J. F. LaFollette, for appellant.
C Corwin, J. M. Smith and S.W. Haynes, for appellees.
This suit was brought by the appellee against the appellant, and her husband, who does not join in the appeal, on a note executed by both defendants, and for the foreclosure of a mortgage on the separate property of the appellant.
A number of errors are assigned in this court, which we will consider in their order.
It is claimed that the first paragraph of the complaint was bad, and that the court erred in overruling the demurrer filed to it.
The objections pointed out to this paragraph are, as stated in the brief of counsel:
1st. "That it contains no allegation as to who the mortgagee was."
2d. "That the paragraph does not contain a description of the lands mortgaged."
3d. "That it is not averred that the mortgage is due and unpaid; nor that the mortgage was executed to secure the payment of the note."
Copies of the note and mortgage were filed with each paragraph of the complaint, and from their recitals we know that the mortgage was executed to secure the note which was given to the appellee. A full description of the real estate is set out in the mortgage. It is alleged that the note was due and unpaid.
These allegations and recitals dispose of all the objections to this paragraph. The pleading would be good on demurrer if each of the objections were well taken, for the plaintiff would still be entitled to a personal judgment on the note.
A demurrer was overruled to the second paragraph of the complaint, and this ruling is assigned as error.
This paragraph counts upon, and exhibits, the same note and mortgage mentioned in the first paragraph, and in addition to the usual averments, says: "That before the maturity of said note the plaintiff indorsed said note for a valuable consideration, to one Harvey P. Swarner; that afterwards the said Swarner brought suit against this plaintiff on the indorsement on said note, but before the same went into judgment said plaintiff took up said note and paid to said Swarner thereon the face and interest thereof, and in addition thereto was compelled to, and did, pay twenty dollars as attorney fees, and thirty dollars costs, which attorney fees, costs, note and interest have not been paid to this plaintiff by defendant."
It is argued that this paragraph shows that the note had been assigned by the appellee to Swarner, and fails to show that it had been re-assigned to the plaintiff before the bringing of the action.
The language used in the pleading that, after suit upon his indorsement, but before judgment, the "plaintiff took up said note and paid to Swarner the face and interest thereof," is susceptible of but one meaning, and that is that the note was re-assigned to the payee. In addition to this, the possession of the note by the plaintiff imports ownership on his part. Mendenhall v. Banks, 16 Ind. 284; Williams v. Dyer, 5 Blackf. 160; Paulman v. Claycomb, 75 Ind. 64.
It is also argued that the appellant was not liable for the amount paid by the appellee for attorney's fees and costs incurred in the suit by Swarner against the appellee. This is probably true, but that would not make the complaint bad on demurrer. If this paragraph stated a cause of action for some relief, the demurrer was correctly overruled. Bayless v. Glenn, 72 Ind. 5.
We are of the opinion that a fair construction of the allegations of this paragraph shows that it charges that the note was due, but it is not important that it should so state, for the copy of the note filed as an exhibit shows that it had long been overdue. Green v. Louthain, 49 Ind. 139; Hardin v. Helton, 50 Ind. 319; West v. Hayes, 104 Ind. 251, 3 N.E. 932.
The appellant filed a counter-claim against the appellee and her husband in which she averred that she was the owner of the land described in the mortgage in her own right, and that she signed the note and mortgage as the surety of her husband, who received the consideration for which they were executed, and asked that they be cancelled and the title of the land quieted.
To this the appellee answered, that in September, 1887, the defendant, John W. Taylor, came to his restaurant in the city of Portland, and stated that his wife was the owner of a large amount of real and personal property which she was desirous of trading for such restaurant; that he, John W., was her agent; that afterward the appellee and another called upon her at her residence on her farm and stated to her that they had come, at the solicitation of her husband, to negotiate a trade of the restaurant for her property; that they then and there stated to her that they were not trading with her husband, and would not trade with him; that she told them that she owned the stock on the farm, and that she desired to trade it for the restaurant, and go into the restaurant business, for her own use, separate business and benefit; that after looking at the stock on the farm they returned to her, and stated the terms upon which they were willing to make the trade, which included the execution by her, to the appellee, of the note and mortgage in suit; that she stated that she was willing to make the exchange, and agreed that the trade might be consummated with her husband, as her agent, and then and there made and signed the following affidavit:
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