Wasson v. Hodshire
| Decision Date | 12 October 1886 |
| Docket Number | 12,552 |
| Citation | 8 N.E. 621,108 Ind. 26 |
| Parties | Wasson v. Hodshire |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
The judgment is affirmed, with costs.
E. C Snyder and R. J. Greene, for appellant.
P. S Kennedy, S. C. Kennedy, T. H. Ristine and H. H. Ristine, for appellee.
This was a proceeding by James Wasson against Martha Hodshire to have a judgment declared satisfied, and to have satisfaction of such judgment accordingly entered.
The circuit court made a special finding of the facts, adjudged to have been satisfactorily proven, which may be briefly stated, as follows:
First. That, on the 7th day of May, 1872, the plaintiff and one John Wasson were the joint owners of a particularly described tract of land in Montgomery county, estimated to contain one hundred and sixty acres.
Second. That, on that day, the plaintiff and the said John Wasson borrowed of the defendant the sum of $ 2,250, and executed to her their promissory note for that sum, to secure the payment of which a mortgage was also executed by them on the tract of land above referred to.
Third. That one-half of said sum of $ 2,250 was received by the plaintiff, and was for his use and benefit, and that the remaining half of said sum was received by the said John Wasson, and was for his use and benefit.
Fourth. That as to the one-half of said sum of $ 2,250 so received by the said John Wasson, the plaintiff was only surety for him the said John Wasson, which fact became known to the defendant on the 20th day of May, 1876.
Fifth. That, on the 7th day of April, 1875, the plaintiff paid to the defendant one-half of the amount then due upon the note executed by him and the said John Wasson as above stated, the sum so paid being the amount for which the plaintiff was liable as principal on said note.
Sixth. That, on said 7th day of April, 1875, the defendant released all the interest of the plaintiff in and to the tract of land mortgaged to her as above set forth, from the lien of the mortgage.
Seventh. That, on the 13th day of April, 1876, the defendant commenced a suit in the Montgomery Circuit Court against the plaintiff and the said John Wasson for the balance due on the note executed by them and to foreclose the mortgage given to secure the payment thereof, which suit, on the 20th day of May, 1876, resulted in a judgment against the plaintiff and the said John Wasson for the sum of $ 1,484.40, including attorney's fees, and a decree of foreclosure of the mortgage as to the interest of the said John Wasson in the mortgaged lands, being one undivided half thereof.
Eighth. That, on the 3d day of November, 1876, a copy of said judgment and decree was duly certified to the sheriff of Montgomery county, who afterwards advertised the interest in the mortgaged lands ordered to be sold, for sale on the 21st day of April, 1877.
Ninth. That, at the time of the rendition of said judgment and decree, the said John Wasson had become a bankrupt, and Mahlon D. Manson was his assignee in bankruptcy and had succeeded to all his rights in the mortgaged lands.
Tenth. That by certain proceedings in partition in the Montgomery Circuit Court, the interest which John Wasson held in the mortgaged lands, at the time he became a bankrupt, was assigned and set off to the said Manson as his assignee in severalty, and the interest which the plaintiff held in said lands was also assigned and set off in severalty to him.
Eleventh. That the part of the lands thus set apart to Manson as assignee was subject to the lien of the defendant's mortgage, and that said part of said lands was suffered to, and did, become delinquent for the non-payment of taxes, and was afterwards, on the 14th day of February, 1879, at a sale for delinquent taxes, sold to one Hector S. Braden.
Twelfth. That thereafter, on the 14th day of February, 1881, the said Hector S. Braden, having acquired a tax deed for the part of the mortgaged lands so purchased by him at a sale for delinquent taxes, commenced an action in the Montgomery Circuit Court against the defendant herein and others, to quiet his title to the real estate described in his tax deed, and obtained a judgment against the defendant hereto quieting his title to such real estate; that the defendant failed to appear to said action, and suffered judgment therein to go against her by default, thereby permitting herself to be deprived of the benefit of her lien on the mortgaged lands, under her mortgage, as a security for the payment of her judgment against the plaintiff and the said John Wasson.
Upon this finding of facts the circuit court came to the following conclusions:
First. That as the loss of mortgage security was not occasioned by any affirmative act of the defendant, but was the result of...
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