Trimble v. State, ex rel. Stephens
| Decision Date | 26 May 1896 |
| Docket Number | 17,951 |
| Citation | 44 N.E. 260,145 Ind. 154 |
| Parties | Trimble et al. v. State, ex rel. Stephens, Auditor |
| Court | Indiana Supreme Court |
From the Warren Circuit Court.
Affirmed.
J. W Sutton, and Davidson & Storms, for appellants.
C. V McAdams, for appellee.
This action was instituted by the appellee, to foreclose a mortgage executed by appellants to secure the payment of a loan obtained from the school fund. The questions presented by the appeal arise out of the special finding of facts, and the conclusions of law thereon.
The material facts in the case, as summarized from the court's special finding, are as follows:
On March 19th, 1894, and for fifteen years prior thereto, the appellants, John A. Trimble and Clara J. Trimble, were husband and wife, and said relation still continues; that, on said date, and prior thereto, they were the owners, as tenants by entireties, of the real estate described in the mortgage in suit. Several months before the said 19th day of March, 1894, the husband, John A. Trimble, made a verbal application to Samuel C. Fenton, then auditor of Warren county, Indiana, for a loan to him of $ 1,500.00 from the school fund, in the hands of said officer. The auditor verbally agreed to make the loan, when the amount of the fund on hand was sufficient, and the defendant could furnish the security required by law; that, upon the auditor discovering that the lands offered as a security were held by Trimble and wife, as tenants by the entireties, he required both of them to join in the execution of the note and mortgage given for the loan, when it was made; that for the purpose of securing said loan before the same was made, the appellants joined in the execution of the affidavit required by section 5803, R. S. 1894 (4376, R. S. 1881). Prior to the making of the loan, the lands in dispute were appraised, as required by the statute, and the appraisement filed with the auditor, and also the required certificate of the clerk and recorder of the county was filed in compliance with the statute, under which the loan was made. At the time the said parties were prepared to perfect the loan in question, there being but $ 1,200.00 of the school fund on hand, this amount was, on March 19, 1894, loaned, and the appellants, for the purpose of securing the payment thereof, executed the note and mortgage provided for by the statute. The mortgage was duly acknowledged and recorded in the recorder's office of Warren county, on said 19th day of March, 1894. On the date aforesaid, after the making of the statutory affidavit, as stated, and the execution of the note and mortgage by said Trimble and wife, the auditor, without any objections from Mrs. Trimble, drew, in the name of her husband, an order on the county treasury for the said sum of $ 1,200.00, so loaned, and the amount of said order was by the treasurer paid to the husband with the knowledge of his wife; that on said day, the husband paid, in the name of himself and wife, as interest for six months in advance, the sum of $ 72, upon the loan in controversy. On the day that the appellants procured the loan of $ 1,200.00, they expressed a desire to the auditor for an additional $ 300.00, in order to increase the loan to $ 1,500.00, the amount which the auditor had originally promised to loan. The auditor informed them that as soon as the additional $ 300.00, so desired, was on hand they could have it, and the note and mortgage would be changed so as to cover this additional amount, and no objections were made by either of the appellants to this arrangement. Thereafter, on May 10, 1894, the said amount of $ 300.00 of the school fund being on hand, the auditor drew a warrant upon the treasury in the name of the husband for that amount, which was paid him. The act of the auditor in drawing the warrant for this latter amount was in accordance with the arrangement made to increase the loan to $ 1,500.00; and with the consent of the husband, but in the absence of the wife, the note and mortgage originally executed by the parties were changed by the auditor by substituting $ 1,500.00 therein for $ 1,200.00; that the mortgage so changed was not recorded, neither was the former record changed or altered; that $ 350.00 of the money obtained on the original loan was, by the appellants, applied in settlement of a lawsuit between them and one Mitchell, and the remainder, with the knowledge and consent of the wife, was used in paying the individual debts of the husband. The wife executed the mortgage and note at the request of the husband to obtain the money for the purpose for which the same was used, but the auditor had no knowledge or information, at and prior to the time the loan was made, as to what purpose the money was to be applied.
The court further finds that there is due and unpaid upon the mortgage, as first executed, the sum of $ 1,268.88, and upon the instrument as changed, the sum of $ 1,583.55.
Upon the facts as found, the court stated its conclusions of law in substance as follows:
1st. That the plaintiff is entitled to a decree, foreclosing the mortgage in suit, for the sum of $ 1,268.88.
2d. That the plaintiff is not entitled to foreclose the mortgage for the $ 300.00 additional loan to the husband, John A. Trimble.
3d. That as to this loan the plaintiff is entitled to a personal judgment against John A. Trimble only, for the sum of $ 314.67.
Judgment followed in accordance with the conclusions of law.
The only question presented and discussed by counsel for Clara J. Trimble is the contention that, under the finding of facts, it is disclosed that the execution of the mortgage in question was an attempt to pledge real estate held by her and her said husband, as tenants by entireties, for the debt of the latter. That it was a contract of suretyship, as to her, into which, under section 6964, R. S. 1894 (section 5119, R. S. 1881), she was expressly prohibited from entering, and therefore the instrument is void and cannot be enforced. It is settled law, in this State, that a mortgage executed by a married woman upon her separate real estate to secure the debt of her husband, or others, is invalid. Also, that a mortgage executed by husband and wife, upon lands held by them as tenants by entireties, to secure the debt of the husband, or others, is void as to both. This rule, however, is subject to the principle of estoppel in pais as against the wife, by which she is bound, when the same is established, by the facts in any particular case. Taylor v. Hearn, 131 Ind. 537, 31 N.E. 201, and cases there cited.
It is also settled that where a...
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