Traylor v. Dykins

• Decision Date: 02 November 1883
• Docket Number: 10,266
• Parties: Traylor et al. v. Dykins, Auditor, et al
• Court: Indiana Supreme Court

91 Ind. 229

Traylor et al. v. Dykins, Auditor, et al

No. 10,266

Supreme Court of Indiana

November 2, 1883

From the Scott Circuit Court.

The judgment is affirmed, with costs.

W. K Marshall, for appellants.

C. L Jewett and H. E. Jewett, for appellees.

OPINION

Howk J.

This was a suit by the appellees against the appellants for the foreclosure of a certain mortgage and the collection of the debt secured thereby. The cause was put at issue and tried by the court, resulting in a finding for the appellees, and judgment was rendered accordingly.

The first error complained of by the appellants, in this court, is the overruling of their demurrer to appellees' complaint. The suit was brought by and in the names of the several persons who were, at the time of its commencement, the auditor, the clerk, and the recorder of Scott county, as trustees of the Scott County Library, for the use of such library. In their complaint, the appellees alleged in substance, that on the 6th day of April, 1870, the appellants executed a mortgage conveying to "the auditor, clerk and recorder of Scott county, Indiana, trustees of the Scott County Library, for the use of such library," certain real estate particularly described in Scott county, as security for the payment of a debt evidenced by the appellants' promissory note, of even date with the mortgage, for the sum of eleven hundred and sixty-six dollars and thirty-three cents, due in five years from date, with seven per cent. interest payable annually in advance; that the note was given to secure a loan of the surplus funds, belonging to such library, loaned under the provisions of "An act authorizing county libraries to loan certain funds, and regulating the same," approved March 11th, 1861; and that the note and interest were due and wholly unpaid. Wherefore, etc.

The appellants demurred to the complaint, upon two grounds of objection, namely:

1. That the appellees had not the legal capacity to sue; and, 2d. That the complaint did not state facts sufficient to constitute a cause of action.

As to the first ground of objection to the complaint, that the appellees had not the legal capacity to sue, it is settled by the decisions of this court, that this cause of demurrer has reference only to some legal disability of the plaintiff, such as infancy, idiocy or coverture, and not to the fact, if such be the fact, that the complaint, upon its face, fails to show a right of action in the plaintiff. Debolt v. Carter, 31 Ind. 355; Dale v. Thomas, 67 Ind. 570; Nave v. Hadley, 74 Ind. 155. Certainly, it was not apparent upon the face of the complaint in this case, that the appellees or either of them were incapacitated to sue by reason of any legal disability.

Under the second ground of demurrer, appellants' counsel insists that the allegations of the complaint fail to show any right of action in the appellees, upon the note and mortgage in suit. In this position, we think, counsel is mistaken. In section 3 of "An act for the incorporation of county libraries," approved June 18th, 1852 (section 3784, R. S. 1881), it is provided as follows: "The clerk, auditor, and recorder shall have the charge of such library, and are hereby constituted trustees for that purpose. * * * They shall cause all moneys appropriated or belonging to the library to be expended in the purchase of books," etc. In section 3788, R. S. 1881, in force since March 11th, 1861, it is provided as follows: "Any county library that may have been organized under special laws in this State, and yet maintains its organization, and shall have a portion of its funds reserved for replenishing the library from time to time, may loan said surplus fund for any term not exceeding five years, with interest payable annually in advance, at the rate of seven per cent. per annum."

It is manifest, we think, that the note and mortgage, counted upon in appellees' complaint in this case, were executed by the appellants and received by the appellees, under and in intended conformity with the statutory provisions above quoted. The statute makes the auditor, the clerk, and the recorder ex-officio trustees of the county library and gives them the power to dispose of the library funds; and, under the later statute, the surplus of such funds might be loaned, as...