"First.
That on the 15th day of September, 1890, and for a long time
prior thereto, the defendant, Melville A. Judy, had been and
was then the owner in fee-simple of the following described
real estate, situate in Warren county, Indiana: The north
one-half (1-2) of section twenty-three (23), the northwest
quarter of section twenty-four (24), the east one-half (1-2)
of the southwest quarter of section twenty-four (24), and
five (5) acres off of the west side of the southwest quarter
of the southeast quarter of section twenty-four (24), all in
township twenty-two (22) north, of range nine (9) west. Also
an undivided interest in the northwest quarter of the
southwest quarter of section twenty (20), in township
twenty-two (22) north, of range eight (8) west.
"Second.
That on the 15th day of September, 1890, the defendant,
Melville A. Judy, was indebted to the defendant, the Central
State Bank of West Lebanon, Indiana, in the sum of $
3,200.00, evidenced by his note then past due; that on said
date said Melville A. Judy executed to the Central State Bank
aforesaid a note for the sum of
$ 3,200.00, to become due ninety days thereafter, together
with interest thereon at eight per cent. after maturity and
waiving relief from valuation and appraisement laws and
providing for ten per cent. attorneys' fees, and in
consideration thereof the old note was delivered to him and
the time of payment of such debt thereby extended. Said new
note being the note sued upon by the
cross-complainant, the Central State Bank of West Lebanon,
Indiana. That on the 14th day of November, 1890, the said
Melville A. Judy was indebted to the Central State Bank of
West Lebanon, Indiana, in the further sum of $ 6,682.20,
evidenced by his note to such bank then past due; that on
said date the said Melville A. Judy executed to such bank his
promissory note for said sum, to become due six months
thereafter, together with eight per cent. interest thereon
after maturity and providing for ten per cent. attorney's
fees, waiving relief from valuation and appraisement laws;
that in consideration of the execution of such note the said
old note was surrendered by such bank and the time for
payment of such debt was thereby extended for a period of six
months from said November 14, 1890. Said new note being the
second note sued upon in this case by the cross-complainant,
the Central Bank aforesaid; that there is now due on said two
notes sued upon by the Central State Bank of West Lebanon,
Indiana, the sum of $ 9,313.68, principal and interest, and
the sum of $ 931.36 attorney's fees, making a total
indebtedness on account of such notes in the sum of $
10,245.04.
"Third.
That on the 17th day of November, 1890, Frank C. Fleming, the
acting cashier of the Central State Bank of West Lebanon,
Indiana, prepared a real estate mortgage, securing the
payment of the notes sued upon in this cause by said bank and
described in second finding of the court; that on said date
said cashier, with a notary public, went to the residence of
the defendant, Melville A. Judy, about four miles in the
country, for the purpose of having such mortgage executed by
said defendant; that on arriving there the mortgage was
tendered to said defendant and he was requested by such
cashier to execute the same, for the purpose
of securing said notes; that after said defendant had read
and examined such mortgage, he duly executed the same, before
such notary, and delivered it to said cashier; that such
mortgage contains a description of the following described
real estate, situate in Warren county, Indiana: The northwest
quarter and the west one-half (1-2) of the northeast quarter
of section twenty-three (23), also the east one-half (1-2) of
the northwest quarter, and the southwest quarter of the
southwest quarter of section twenty-four (24), all in
township twenty-two (22) north, of range nine (9) west. The
court further finds that such mortgage was duly recorded in
the recorder's office of Warren county, Indiana, on
December 9, 1890. The court further finds that there was no
agreement between the Central State Bank of West Lebanon,
Indiana, and the defendant, Melville A. Judy, that a mortgage
should be given by him on his real estate to secure the notes
sued upon by such bank, prior to the execution of such
mortgage; that at the time such mortgage was executed there
was no agreement between said bank and said Judy as to what
lands should be embraced in such mortgage, and that at no
time prior to the execution of such mortgage, nor at any
time, was anything said, by the cashier of said bank or said
Judy, as to what lands should be embraced in such mortgage;
that the cashier of said bank, when he drafted such mortgage,
intended to embrace therein all the lands then owned by
defendant Judy, and above set forth in the first finding of
the court, and that the officers of said bank supposed and
understood that the mortgage so executed did embrace all such
lands, until in January, 1893, when they learned that a
mistake had been made therein; that the defendant, Judy, at
the time he executed such mortgage supposed
the same contained a description of all the real estate as
above set forth in the first finding of the court, and that
the defendant, Judy, intended to embrace and include and
describe all of said lands in such mortgage.
"Fifth.
That on December 21, 1892, the defendant, Melville A. Judy,
was indebted to the Citizens' National Bank of Attica,
Indiana, for money borrowed, in the sum of more than $
5,000.00, evidenced by his note therefor then past due; that
such debt had been in existence for a period prior to
September 15, 1890, and had been renewed from time to time by
the payment of interest and the execution of new notes; that
on said December 21, 1892, the defendant, Melville A. Judy,
executed to the plaintiff his note for the sum of $ 4,500.00,
to become due in six months thereafter with eight per cent.
interest thereon after maturity and ten per cent.
attorney's fees and waiving relief from valuation or
appraisement laws; that in consideration of the extension of
the time for the payment of that portion of such debt,
evidenced by such new note, the defendant, Melville A. Judy,
on said date paid to the plaintiff the residue of such old
debt then due and executed and delivered to the plaintiff,
for the purpose of securing such note of $ 4,500.00, then
made a mortgage on the following described real estate,
situate in Warren county, Indiana: The east one-half (1-2) of
the northeast quarter of section twenty-three (23), the
northwest quarter and the east half (1-2) of the southwest
quarter, and five (5) acres off of the west side of the
southwest quarter of the southeast quarter of section
twenty-four (24), all in township twenty-two (22), north of
range nine (9) west. Also his interest in the northwest
quarter of the southwest quarter of section twenty (20), in
township twenty-two (22) north, of range eight (8) west; that
such mortgage was duly recorded in the office
of the county recorder of Warren county on December 21, 1892;
that the renewal note so executed on December 21, 1892, for $
4,500.00, is the note sued upon by the plaintiff in this
cause, and that there is now due and unpaid on the same the
sum of $ 4,782.00 principal and
interest, and the further sum of $ 478.00 attorney's
fees, making a total indebtedness now due on such note of $
5,260.00.
"Sixth.
That the Central State Bank of West Lebanon, Indiana, in
January, 1893, acquired notice and knowledge of the execution
and delivery by the defendant, Melville A. Judy, to the
plaintiff of the mort gage sued upon by the plaintiff in this
cause; that said defendant, the Central State Bank, did not
at any time thereafter give to the plaintiff any notice that
it claimed to have a mortgage on all the real estate of the
defendant, Judy, and did not at any time take any steps to
correct the mistake claimed to exist in its mortgage until it
filed its cross-complaint in this cause on December 27,
1893."
