Tennant v. Hulet

• Decision Date: 20 June 1917
• Docket Number: No. 9326.,9326.
• Citation: 116 N.E. 748,65 Ind.App. 24
• Parties: TENNANT v. HULET.
• Court: Indiana Appellate Court

65 Ind.App. 24

116 N.E. 748

TENNANT

v.HULET.

No. 9326.

Appellate Court of Indiana, Division No. 1.

June 20, 1917.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by Walter F. Hulet against Flora M. Tennant. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.

Clyde H. Jones, of Lafayette, and Henry D. Van Cleave and Arthur McGoughey, both of Crawfordsville, for appellant. Chase Harding, of Crawfordsville, and Finley P. Mount, of La Porte, for appellee.

HOTTEL, C. J.

Appellee, as assignee of the note and mortgage herein sued on, filed in the trial court a complaint in three paragraphs. The first paragraph is based on the note and mortgage, and by it appellee sought to obtain a personal judgment against appellants for the amount due on the note and a foreclosure of the mortgage given to secure such note. The second paragraph is based on the promise to pay contained in the mortgage, and asks for a personal judgment for the amount due by reason of such promise and a foreclosure of the mortgage given to secure the debt evidenced thereby. The third paragraph is based on the promise to pay contained in the mortgage, and seeks to enforce the lien on the mortgaged premises, and to have the mortgage foreclosed to satisfy the same, but asks no personal judgment. Appellant filed an answer in four paragraphs. The first paragraph is a general denial, the second is the 10-year statute of limitation, the third the 15-year statute of limitation, and the fourth paragraph avers that the note and mortgage were executed by appellant as surety at a time when she was a married woman. A demurrer was filed to said second, third, and fourth paragraphs of answer, and the court overruled such demurrer to each of said answers to the second and third paragraphs of complaint, and sustained the demurrer to the second and third paragraphs of answer to the third paragraph of complaint. The latter ruling-that is, the ruling sustaining the demurrer to the second and third paragraphs of answer to the third paragraph of complaint-is assigned as error and relied on for reversal.

Some objections are made to the form of said demurrer, it being contended by appellant that it “is not so drawn as to raise any question as to the sufficiency of the facts in said second and third paragraphs of answer to constitute a defense to the third paragraph of complaint”; but our determination of the question presented by the ruling on such demurrer on its merits makes unnecessary the consideration or disposition of said preliminary question.

We are not quite sure that we understand appellee's position in this court as to the theory of the cause of action stated in said third paragraph of his complaint. He insists that it is not an action for a personal judgment on the promise to pay contained in the mortgage; and he also says, in effect, that he desires to impress upon the court that “the third paragraph of complaint upon which the judgment was rendered is not brought to foreclose a mortgage.” The averments and the prayer of this paragraph do not justify the latter contention. On the contrary, appellee in his prayer in this paragraph expressly “demands judgment determining the amount of his said debt and for foreclosure of said mortgage and a decree ordering the land sold and the proceeds applied to the satisfaction of said debt, and barring the right of defendant and all persons claiming by, through or under her as against said mortgage and said lands and that out of the proceeds of such foreclosure plaintiff's debt and all costs herein be paid.”

It is manifest from the general finding and judgment of the trial court that it treated said third paragraph as stating a cause of action based on the promise to pay in such mortgage and the lien on the land therein given to secure such payment, because the court finds that there is due appellee on the debt sued on in such paragraph the sum of $295.50, that said debt is secured by mortgage on real estate described, etc., that such mortgage is a lien upon said real estate to the extent of said indebtedness, and that appellee is entitled to have such lien foreclosed as against appellant. Upon such finding there is judgment as follows:

“It is therefore ordered, adjudged, and decreed by the court that there is due the plaintiff on his debt and mortgage, sued upon herein in the third paragraph of complaint herein, the sum of two hundred ninety-five dollars and fifty cents ($295.50), of which amount the sum of twenty-six dollars and eighty cents ($26.80) is for the plaintiff's attorney's fees. All collectible without any relief from valuation and appraisement laws.

It is further ordered, adjudged, and decreed by the court that the equity of redemption of the defendant and of all other persons claiming from, by, through or under the said defendant, be, and the same is hereby, forever barred and foreclosed. *** Said sale to be made without relief from valuation or appraisement laws. And the proceeds derived from such sale the sheriff is directed to apply in the manner following, to wit: First. To the payment of the costs of this proceeding and the costs of sale, Second. To the payment of the plaintiff's claims, principal, interest, and attorney's fees. And the overplus, if any, remaining after the payment of the above judgment, principal, interest, costs, and attorney's fees, shall be paid by said sheriff to the clerk of this court for the use and benefit of the party or parties legally entitled thereto.”

If said paragraph of complaint were merely an action to declare the lien, it was an idle ceremony, seeking merely the declaration of a right with no means for its enforcement.

Following his statement, supra, that said paragraph of complaint is not brought to foreclose a mortgage, appellee says further:

“No personal judgment is sought or obtained. The promise of Mrs. Tennant to pay the debt is not sought to be enforced. Her obligation to submit her land to sale to satisfy plaintiff's debt is what is relied on. Her promise in the mortgage to pay the debt makes the instrument a separate and complete contract, and therefore enforceable aside from the note, but we do not ask her to fulfill that promise to pay the debt. We repeat, we do not ask her, and the judgment does not require her, to pay or carry out any written contract whereby she is to pay money.”

We assume that the language quoted presents the key to appellee's real contention as to the theory of said paragraph of complaint, and we may add that we think that this was the theory adopted by the trial court, and from this viewpoint we will consider the sufficiency of said second and third paragraphs of answer to said third paragraph of complaint. This requires us to determine which of the periods of limitation fixed by statute controls the cause of action stated in said third paragraph of complaint.

The sections of the statute and provisions of the periods of limitation cited and relied on by the parties as applicable to such cause of action are as follows:

Section 295, Burns 1914 (section 38, 1881 S., p. 240, in force September 19, 1881): “The following actions shall be commenced within the periods herein prescribed, after the cause of action has accrued, and not afterward: *** Fifth. Upon promissory notes, bills of exchange and other written contracts for the payment of money, hereafter executed, within ten years. *** Sixth. Upon contracts in writing other than those for the payment of money, on judgments of courts of record, and for the recovery of the possession of real estate, within twenty years.”

Section 296, Burns 1914 (section 39, 1881 S., p. 240): “All actions not limited by any other statute shall be brought within fifteen years. In special cases, where a different limitation is prescribed by statute, the provision of this act shall not apply.”

Section 308a, Burns 1914 (section 1, Acts 1909, p. 334, in force April 5, 1909): “That no action shall be brought or maintained to foreclose or enforce the lien of any mortgage on real estate in this state when the last installment of the debt secured by such mortgage as shown by the record thereof has been due more than twenty years. If the record of any mortgage does not show when the debt thereby secured becomes due, then no action shall thereafter be brought or maintained to foreclose or enforce the lien of such mortgage after twenty years from the date of such mortgage.”

Section 308b, Burns 1914 (section 2, Acts 1909, p. 344): “The lien of all mortgages upon real estate in this state shall cease and expire twenty years from the time the last installment of the debt secured by such mortgage becomes due as shown by the record thereof. If the record of such mortgage does not show when the debt thereby secured becomes due, the lien of such mortgage upon the real estate therein described shall cease and expire twenty years from the date of such mortgage.”

Appellee, in effect, concedes that subdivision 5, of section 295, supra, controls the debt evidenced by the note, but insists that, where the promise to pay appears in the mortgage, such mortgage or the lien therein created is not a mere incident of the debt or a contract in writing “for the payment of money,” within the meaning of subdivision 5, § 295, supra, but that the contract in the mortgage creating such lien is an independent contract in writing “other than for the payment of money,” to which the sixth subdivision of section 295, supra, is applicable. In support of this contention, appellee relies upon and cites the following cases: Lilly v. Dunn, 96 Ind. 220;Munroe v. Stanley et al., 220 Mass. 438, 107 N. E. 1012; Ætna Life Ins. Co. v. Finch, 84 Ind. 301;Bridges, Adm'r, v. Blake et al., 106 Ind. 332, 6 N. E. 833;Post v. Losey, 111 Ind. 74, 12 N. E. 121, 60 Am. Rep. 677;Crawford v. Hazelrigg, 117 Ind. 63, 18 N. E. 603;Nichol v. Henry, 98 Ind. 34;Catterlin v. Armstrong, 79 Ind. 514;Id., 101 Ind. 258;...