The Second Baptist Church (Colored) v. Furber

• Decision Date: 02 February 1887
• Docket Number: 13,184
• Citation: 10 N.E. 118,109 Ind. 492
• Parties: The Second Baptist Church (Colored) v. Furber et al
• Court: Indiana Supreme Court

10 N.E. 118

109 Ind. 492

The Second Baptist Church (Colored) v. Furber et al

No. 13,184

Supreme Court of Indiana

February 2, 1887

Petition for a Rehearing Overruled March 8, 1887.

From the Marion Superior Court.

The judgment is affirmed with costs.

C. E Clark, for appellant.

E. F Ritter, L. Ritter and B. W. Ritter, for appellees.

OPINION

Howk, J.

This was a suit by appellee Furber to foreclose a mortgage on certain real estate in the city of Indianapolis, alleged to have been executed for and on behalf of appellant by its trustees at the time, and to collect the debt secured thereby. The cause was put at issue and heard by the court and a finding and decree were made and rendered by the court at special term, in favor of appellee Furber and against appellant, for the foreclosure of such mortgage, and the sale of the mortgaged real estate to pay the amount due on the mortgage debt, and costs accrued and to accrue, etc. On appeal, the general term affirmed the judgment and decree of the court at special term, and from such affirmance this appeal is now here prosecuted.

By proper assignment of error here, appellant, the Second Baptist Church (colored), which alone appeals, has brought before this court the errors it assigned in general term upon the overruling of its demurrers to each of the two paragraphs of appellee Furber's complaint.

In the first paragraph of his complaint, Furber alleged that, on and before the 2d day of May, 1874, the "Second Baptist Church (colored) of Indianapolis, Indiana," appellant, was largely indebted and in need of money to discharge such indebtedness, and to build and finish its church for use and occupation, and it applied to appellee Furber for a loan of $ 5,000 for such purposes; that appellant ordered and directed its co-defendants, Huston, Lewis, Steel, Wilson, Pinkton, Pierce, Doyle, and one Moses Broyles, since deceased, who were then and there its trustees and agents, to make such loan for appellant; that, in pursuance of such order and direction, appellant, by and through its trustees and agents, on such 2d day of May, 1874, borrowed of appellee Furber said sum of $ 5,000, which sum of money was then and there furnished by him to appellant, and was by it received and used for the purpose of paying its obligations and finishing its church building, as aforesaid; that appellant's trustees above named executed to appellee Furber a promissory note for $ 5,000, due five years after date, a copy of which note was therewith filed and made part thereof, and also executed ten coupon or interest notes which had since been paid, but that the principal note of $ 5,000 was past due and wholly unpaid.

Appellee Furber further alleged that, to secure the payment of said notes, appellant, by a vote of its members duly had authorized and directed its trustees and agents aforesaid to mortgage to appellee Furber its real estate and church building thereon, in the city of Indianapolis, Marion county, Indiana, described as follows, to wit: (Description omitted); that, in pursuance of such authority and the order and direction of appellant, its said trustees, on the day and year aforesaid, executed to appellee Furber a mortgage upon its said property, a copy of which mortgage was therewith filed and made part thereof; that such mortgage was duly recorded in the proper record of Marion county, within forty-five days from the date of its execution; that in the execution of such mortgage, the trustees aforesaid were acting for and on behalf of appellant, and by its authority and direction; and that, after the execution of said notes and mortgage, appellant recognized and ratified the acts of said trustees in all things done therein, and adopted said mortgage and notes, and paid the interest notes so secured by said mortgage as aforesaid; but, as appellee Furber was informed and believed and averred, appellant failed and neglected to enter of record the vote and direction to make said mortgage and notes; that said mortgage was in truth and in fact, and, by all the parties thereto, was intended to be, the mortgage of said Second Baptist Church, but that, by the mutual mistake and oversight of said parties and of the scrivener, appellant was not named in said mortgage; that prior to the execution of said notes and mortgage, the above named trustees were authorized and empowered by appellant to make...