Troxel v. Thomas

• Citation: 58 N.E. 725,155 Ind. 519
• Decision Date: 27 November 1900
• Docket Number: 18,938
• Parties: Troxel v. Thomas et al
• Court: Supreme Court of Indiana

58 N.E. 725

155 Ind. 519

Troxel v. Thomas et al

No. 18,938

Supreme Court of Indiana

November 27, 1900

From the Clinton Circuit Court.

Affirmed.

O. E Brumbaugh and Joseph Combs, for appellant.

T. H Palmer and W. F. Palmer, for appellees.

OPINION

Jordan, J.

The relief sought to be obtained by appellees under the facts alleged in their complaint was the cancelation of a certain promissory note and an application of the amount of money which it represented to the payment of a certain judgment. A demurrer to the complaint for insufficiency of facts was overruled. The assignment of errors is based (1) upon the ruling of the lower court on a demurrer to the complaint; (2) sustaining the joint demurrer of appellees to the second paragraph of answer; (3) sustaining the separate demurrers of appellees to appellant's cross-complaint; (4) denying appellant's motion to set aside the judgment, and in overruling his motion for a new trial. An epitome of the facts set out in the complaint is as follows: On May 12 1891, appellant, Troxel, and appellee Miller were owners of a certain tile and brick mill including all fixtures and appliances thereto belonging. On that date said Troxel and Miller executed their promissory note for $ 400 to one Freeze, and, to secure this note, they executed to him a chattel mortgage upon the above tile and brick mill, which mortgage was duly recorded within ten days from the date of its execution in the recorder's office in Clinton county Indiana, in which county the mortgaged property was situate, and wherein the mortgagors resided. Subsequently Miller sold and transferred all of his interest in said property to Troxel, and, as a part of the consideration for such sale and transfer, Troxel assumed and agreed to pay the note secured by the mortgage. Thereafter, on March 27, 1893, Troxel sold and transferred said property with the mortgage lien thereon to William C. Caldwell and James W. Thomas, the latter being an appellee in this case. As a part of the consideration of this latter sale, said vendees executed their promissory note to Troxel for $ 400, which they promised to pay with interest at seven per cent. when the above chattel mortgage was satisfied and released, and, in the event it was satisfied before September 1, 1893, said note was to be due and payable on the last mentioned date. Thereafter, in 1894, Thomas purchased Caldwell's interest in the brick mill, and as a part of the consideration he assumed all liability in respect to the payment of the said last mentioned $ 400 note. Troxel failed to pay the note secured by the chattel mortgage, and Freeze, the holder thereof, instituted an action in the Clinton Circuit Court against Troxel and Miller, and on February 13, 1895, recovered a judgment against both for $ 560 on the note secured by said mortgage, and obtained a foreclosure of the mortgage in payment of said judgment. The appellee Thomas, in order to protect his title in the mortgaged property, was compelled to and did purchase this judgment from Freeze and secured from him an assignment thereof. This judgment, amounting to $ 560, remained unpaid at the time of the commencement of this action, and Troxel as is shown is wholly insolvent. It is insisted by counsel for appellant that Miller and Thomas, plaintiffs below and appellees here, are, under the state of facts alleged in the complaint, shown to have separate causes of action against appellant, and therefore can not unite as plaintiffs in this suit, and for this reason alone it is contended that the demurrer to the complaint should have been sustained. It is the settled rule in this State that under our civil code all persons who unite as plaintiffs must have an interest in the subject of the action. But this rule is not to be interpreted so as to require that the interest of all the plaintiffs who do unite must be equal, or that such interest may not be legally severable. All, however, must have some common interest in respect to the subject-matter of the action, and each must be interested, at least to the extent that all who join as plaintiffs have some relief in respect to the subject-matter of such suit. Under these circumstances, such a unity of interests will be created in regard to the subject-matter of the particular action as will authorize parties so related in interest to join as plaintiffs. Home Ins. Co. v. Gilman, 112 Ind. 7, 13 N.E. 118, and cases there cited; McIntosh v. Zaring, 150 Ind. 301, 49 N.E. 164. Under the facts as heretofore set out, when tested by this rule, it is evident that appellees Miller and Thomas have such a unity of interests in this suit as will permit them to join as plaintiffs in this prosecution. It is disclosed that the $ 400 note, executed to appellant by Thomas and Caldwell, by its terms could not become due and payable until the mortgage lien, which encumbered the property sold by appellant to them, had been satisfied and released. In fact it may be said to appear that the amount of money evidenced by this latter note represented the amount of the purchase money which Thomas and Caldwell retained and intended to hold until appellant had complied with his agreement with Miller, and satisfied the mortgage indebtedness. This obligation he failed to discharge, and, by reason of his insolvency, it would seem that he was not financially in position to comply with his said agreement. After...