Union Trust Co. v. Scott
| Decision Date | 02 July 1908 |
| Docket Number | 21,299 |
| Citation | 85 N.E. 481,170 Ind. 666 |
| Parties | Union Trust Company, Receiver, v. Scott et al |
| Court | Indiana Supreme Court |
From Clark Circuit Court; Harry C. Montgomery, Judge.
Suit by the Union Trust Company, as receiver of the Mutual Life Insurance Company of Indiana, against Benjamin S. Scott and others. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under § 1394 Burns 1908, cl. 2, Acts 1901, p. 565, § 10. Affirmed in part.
Reversed in part.
James K. Marsh, for appellant.
E. C Hughes, for appellees.
Said bond and mortgage were made a part of the amended complaint.
It is alleged in said amended complaint that said Sallie H. Scott died intestate and left surviving her as her only heirs at law Benjamin S. Scott, Lillie Schrader, Annie L. Scott and Georgia Scott; that no administration was had upon her said estate; that afterwards, on November --, 1900, Benjamin S. Scott and ----- Scott, his wife, Lillie Schrader and Calvin Schrader, her husband, sold and conveyed all of their right, title and interest in and to said real estate to Edward L. Schrader, who, in consideration therefor, and as a part of the purchase money, assumed and agreed to pay said mortgage indebtedness; that afterwards, to wit, on March 9, 1901, Edward L. Schrader sold and conveyed said mortgaged premises to said defendant Orlando Ross, who, in consideration therefor, and as a part of the purchase money of the real estate, assumed and agreed to pay the before-described mortgage indebtedness. Prayer for personal judgment and decree of foreclosure.
The issues upon which the cause was tried were upon the amended complaint, the general denials thereto, answers of payment, and six-year statute of limitations, and the replies thereto in denial. The cause was heard by the court, and a finding made in favor of appellees, upon which judgment was rendered against appellant.
The only error assigned calls in question the action of the court in overruling appellant's motion for a new trial.
The causes assigned for a new trial, which are urged as grounds for reversal, are that (1) the decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law.
There was no evidence to sustain the allegations in the amended complaint that Sallie H. Scott was dead; that she died intestate; that she left surviving her Benjamin S. Scott, Lillie Schrader, Annie L. Scott and Georgia Scott as her only heirs; that no administration was had upon her estate. In the absence of evidence to sustain said allegations and proof that this suit was not brought until the expiration of one year after the death of said Sallie H. Scott, the court properly found in favor of said alleged "heirs." § 2847 Burns 1908, Acts 1883, p. 151, § 17; Lovering v. King (1884), 97 Ind. 130.
There was no evidence that said appellee Edward L. Schrader ever assumed or promised to pay any part of the debt secured by said mortgage. The court, therefore, properly found in his favor.
The evidence against appellee Orlando Ross shows that said land described in the mortgage sued on was conveyed to him, and that it was written in the deed that the same was conveyed to him subject to the payment of five-ninths of the debt secured by the mortgage, "amounting in the aggregate to $ 350, said five-ninths part of which mortgage said Orlando Ross hereby assumes and agrees to pay, * * * said mortgage constituting a part of the above-named consideration." There was no proof that said indebtedness was paid. The conveyance was made to Ross on March 9, 1901, and this suit was commenced against him April 8, 1904. The bond and mortgage mentioned in and filed with the complaint were read in evidence. It is evident that the six-year statute of limitations is no bar to appellant's suit against Orlando Ross on his promise to pay five-ninths of the amount found due on the mortgage.
It is sought, however, in this suit to recover not only a personal judgment against him for the five-ninths of the amount due, but also to foreclose said mortgage against the real estate conveyed to him for the whole amount secured by said mortgage. Counsel for appellees contends that this suit and the right to foreclose said mortgage is barred as to the mortgagors, and as to the heirs of Sallie H. Scott, if she is deceased as alleged, and also as to said Orlando Ross to the extent of the four-ninths of the amount of said mortgage which he did not assume and agree to pay when he bought said real estate. We concur in this contention of counsel for appellees.
It is alleged in the complaint and appears from the evidence that said Mutual Life Insurance Company was adjudged insolvent, and on May 3, 1897, appellant was appointed receiver of said company. The Mutual Life Insurance Company by its insolvency having become unable to perform its part of the contract contained in said bond and mortgage, the other party thereto was thereby released from any obligation to pay the same in monthly payments. The total amount of money received by her became due and payable in a lump sum, not upon the terms of the bond, for that was abrogated by the insolvency, but as money had and received by her with six per cent interest, giving credit for any payments as partial payments under the rule declared in this State. Marion Trust Co. v. Trustees of Edwards Lodge, etc. (1899), 153 Ind. 96, 54 N.E. 444, and cases cited; Security Sav., etc., Assn. v. Elbert (1899), 153 Ind. 198, 54 N.E. 753, and cases cited; Huter v. Union Trust Co. (1899), 153 Ind. 204, and cases cited; Fidelity Bldg., etc., Union v. Smith (1901), 155 Ind. 679, 58 N.E. 70, and cases cited; Union Trust Co. v. Shilling (1903), 30 Ind.App. 543, 66 N.E. 699, and cases cited; Home Sav. Assn. v. Noblesville, etc., Church (1903), 31 Ind.App. 115, 123, 66 N.E. 465, and cases cited.
In the case of Huter v. Union Trust Co. supra, which was a controversy over one of the bonds...
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