United States Saving Fund & Investment Co. v. Harris

• Decision Date: 04 June 1895
• Docket Number: 17,414
• Citation: 40 N.E. 1072,142 Ind. 226
• Parties: United States Saving Fund and Investment Co. v. Harris et al
• Court: Indiana Supreme Court

40 N.E. 1072

142 Ind. 226

United States Saving Fund and Investment Co. v. Harris et al

No. 17,414

Supreme Court of Indiana

June 4, 1895

Reported at: 142 Ind. 226 at 244.

From the Hendricks Circuit Court.

The judgment is reversed and the cause remanded with instructions to sustain the demurrer to the separate answer of Lotta B Harris, to overrule her demurrer to appellant's reply to her separate answer, overrule the demurrer to the answer of appellant to the separate counterclaim of said appellee, and for further proceedings not inconsistent with this opinion.

Cofer & Hadley, N. M. Taylor and Hogate & Clark, for appellant.

C Foley, for appellees.

McCabe J. Monks, J., did not participate in this decision.

OPINION

McCabe, J.

The appellant sued the appellees to foreclose a mortgage executed by them on real estate.

The circuit court overruled a demurrer to the separate answer of appellee Lotta B. Harris, sustained the demurrer of said appellee to appellant's reply to her separate answer, and sustained the demurrer to the answer of appellant to the separate counterclaim of said appellee. The issues formed were tried by the court, resulting in a finding and judgment in favor of said appellee Lotta B., and a finding and judgment against the appellee John W. Harris, foreclosing the mortgage as to him.

The errors assigned by appellant call in question the rulings upon demurrer above mentioned.

The appellee John W. Harris assigns for cross-error, that the circuit court sustained appellant's demurrer to the separate partial answer of said appellee John W.

And appellee, Lotta B. Harris, assigns for cross-error, that the circuit court overruled her objection and exception to the rendition of judgment of foreclosure against her co-appellee.

The substance of the separate answer of appellee Lotta B. Harris, by her guardian ad litem, is that she was born on January 13, 1876, and hence was an infant when the note, bond and mortgage sued on were executed, to-wit: January 20, 1893; she being at that time but seventeen years of age; that she was married to her co-defendant, John W., on February 1, 1892, and has ever since been his wife; that on October 19, 1892, her father and mother made a gift to her and her said husband of the real estate described in the mortgage, and conveyed the same to them by a general warranty deed, designating and describing them therein as husband and wife, the granting part of which reads thus: "Convey and warrant to John W. Harris and Lotta B. Harris, his wife," then follows the description of the real estate conveyed, the same being a lot in the town of Danville, Hendricks county, Indiana; that said deed was duly recorded in the recorder's office in said county on October 29, 1892, which was more than three months before the note and mortgage sued on were excuted. That the only right, title, or interest which she and her said husband, or either of them, had in or to said real estate at the time said mortgage was executed, or ever had therein, is by virtue of said deed of conveyance; that at and before the time of the execution of the mortgage sued on, and before the plaintiff loaned the money sought to be secured by said mortgage, or parted with any value on account thereof, appellant's executive officers knew that this defendant was under the age of twenty-one years, and would not arrive at that age until long after the execution of the mortgage and the making of the loan; that she did not, either before, or at the time of, the execution of said mortgage or the making of said loan, state or represent in writing to the plaintiff that she was twenty-one years of age.

The substance of appellant's reply to the foregoing answer is that the amount specified in the bond and mortgage sued on, was money borrowed by the defendant Lotta and her co-defendant John W. Harris, for the purpose of paying for labor and material for a dwelling house, out houses and other buildings constructed on the real estate owned by them as aforesaid and described in the complaint, and that the same was actually used for that purpose and for no other; that said John W. Harris was, at the time said money was loaned and when the bond and mortgage sued on were executed, a person of the full age of twenty-one years; that the defendants, nor either of them before or after this suit was brought, paid or offered to pay said sum of money so loaned by the plaintiff to the defendants, or any part thereof, nor have they brought said money into court or any part thereof for the use and benefit of the plaintiff, nor have they restored or offered to restore to the plaintiff the consideration received from it for the bond and mortgage sued on.

The separate counterclaim of appellee Lotta B. Harris only differs from her separate answer in that it sets out by exhibits the note or bond and mortgage sued on, and asks for affirmative relief, that it be adjudged that said note or bond and mortgage sued on are null and void and of no effect, and said real estate be forever released therefrom.

The appellant's answer to the separate counterclaim of said appellee Lotta B., is substantially the same as its reply to her separate answer, the substance of which reply is already set forth above. So that it appears the same question is substantially presented by the ruling on the several demurrers to the several pleadings above outlined; and that question is, can an infant feme covert disaffirm her mortgage in which her husband, over twenty-one years of age joined, without restoring the consideration she has received therefor? The ruling on the demurrer to appellant's answer to the separate counterclaim of Lotta B. Harris, raises the further question whether an infant feme covert can disaffirm her note or bond.

It is contended by the appellant's counsel that appellee Lotta B. Harris, though an infant when she executed the mortgage in suit, cannot disaffirm it without restoring the consideration she received therefor. It is conceded on both sides that at common law all infants may disaffirm all contracts that are voidable merely into which they may have entered, unless it be implied contracts for necessaries, and that the contract here involved is not one for necessaries. But it is contended by the appellant that the Legislature has changed that feature of the common law by statutory enactment. The appellees contend that the legislative enactment relied on by appellant has no application to mortgages. The question, therefore, depends upon the proper construction of that statute.

The statute in question reads as follows: "1. In all sales by an infant feme covert of lands belonging to her, and in which sale and conveyance her husband has joined, he being of full age, said infant shall not be permitted to disaffirm said sale until she shall first restore to the person owning said real estate the consideration she received for said land: Provided, however, That if she will allege in her complaint that she received no consideration for said sale, an issue may be made upon such allegation; and if, upon trial, the Court or jury find that any consideration was received by her, the Court shall, in the finding and decree, declare such amount so found first lien against said land in favor of the defendant." R. S. 1881, section 2944; R. S. 1894, section 3364.

"2. In all sales of real estate by an infant, he or she shall not be permitted to disaffirm said sale without first restoring to the person owning the property sold the consideration received in said sale, if said infant falsely represented himself or herself to said purchaser to be over the age of twenty-one years, and the party buying from said infant acted in good faith, and relied upon said representations in such sale, and had good cause to believe said infant of full age." R. S. 1894, section 3365; R. S. 1881, section 2945.

It is contended by the appellees that this statute cannot apply, because it has reference only to conveyances of land; and they contend further, that a mortgage in this State upon real estate constitutes only a lien upon the land mortgaged, vesting in the mortgagee no title therein, the title remaining in the mortgagor until divested by a judicial sale. That is true. Reasoner, Admr., v. Edmundson, 5 Ind. 393; Grable v. McCulloh, 27 Ind. 472; Lilly v. Dunn, Admr., 96 Ind. 220. But it does not necessarily follow that the Legislature did not intend to include mortgages within the operation of the act.

As was said in Stout v. Board, etc., 107 Ind. 343 347, 8 N.E. 222: "It is true, as contended, that in construing a statute the probable intention of the Legislature must be kept constantly in view, and that where the language of the statute is plain and unambiguous, the expressed intention of the Legislature must prevail, there being no room left for construction. Case v. Wildridge, 4 Ind. 51; Buskirk Pr. 353; Taylor v. Board, etc., 67 Ind. 383; United States v. Fisher, 6 U.S. 358, 2 Cranch, *358, 399, 2 L.Ed. 304; 1 Kent Comm. pp. 460-468. It is also true that the courts cannot extend the plain meaning of a statute by the substitution or addition of words or phrases without encroaching upon the legislative department of the government. Trustees, etc., v. Ellis, 38 Ind. 3. But the legislative intention, as collected from an examination of the whole, as well as the separate parts of a statute, will prevail over the literal import of particular terms, and will control the strict letter where adherence to such strict letter would lead to injustice, to absurdity, or to contradictory provisions. Mayor, etc., v. Weems, 5 Ind. 547; Buskirk Pr. 353; Middleton v. Greeson, 106 Ind. 18, 5 N.E. 755; Miller v. State, ex rel., 106 Ind. 415, 7 N.E. 209. * * * So in cases of doubt or...