Thomson v. The Madison Building and Aid Association
| Decision Date | 15 October 1885 |
| Docket Number | 11,999 |
| Citation | 2 N.E. 735,103 Ind. 279 |
| Parties | Thomson et al. v. The Madison Building and Aid Association |
| Court | Indiana Supreme Court |
From the Jefferson Circuit Court.
Judgment affirmed.
E. G Leland and S. E. Leland, for appellants.
W. T Friedley, C. A. Korbly and W. O. Ford, for appellee.
The first paragraph of the appellee's complaint declares upon a note and mortgage executed by the appellants to John C. Smith.
It is contended that this paragraph of the complaint is bad because it does not aver that the note and mortgage were assigned to the appellee. This position is not tenable.
Where the complaint is against the maker of a note, it is sufficient to show title in the plaintiff, and this may be done by alleging that it was sold and assigned to him. The appellants confuse this case with an action founded upon an endorsement brought against an endorser; whereas the two cases are essentially different. The complaint before us shows title in the appellee. Where the note secured by a mortgage is assigned the assignment carries the mortgage. The complaint does show that copies of the note and mortgage are filed as exhibits.
If the appellee had no power to purchase the note and mortgage sued on, that fact should have been pleaded as a defence. It may have been necessary to purchase the mortgage in order to remove a lien and thus protect a mortgage taken by the association. The courts can not presume that the corporation did an illegal thing.
The office of a description is not to identify the property conveyed, but to furnish means of identification, and the mortgage sued on does this. It is, therefore, not void because of an insufficient description.
The second paragraph of the complaint is badly drawn, for its averment of the default in the performance of the conditions of the mortgage is uncertain, but the remedy for uncertainty is by motion and not by demurrer.
The appellants join in their assignment of error, and unless the assignment is good as to both it is not good at all. This is the long settled rule of this court. Hinkle v. Shelley, 100 Ind. 88, and authorities cited; Boyd v. Anderson, 102 Ind. 217, 1 N.E. 724. Under this assignment the appellant Christina Thomson can not avail herself of a ruling upon a demurrer to her separate answer, nor can she avail herself of a ruling upon a separate motion for a new trial.
The bill of exceptions shows...
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