Wayne Int'l Bldg. & Loan Ass'n v. Moats

• Decision Date: 10 December 1897
• Citation: 48 N.E. 793,149 Ind. 123
• Parties: WAYNE INTERNATIONAL BUILDING & LOAN ASS'N v. MOATS et al.
• Court: Indiana Supreme Court

149 Ind. 123

48 N.E. 793

WAYNE INTERNATIONAL BUILDING & LOAN ASS'N

v.MOATS et al.

Supreme Court of Indiana.

Dec. 10, 1897.

Appeal from superior court, Marion county; Lawson M. Harvey, Judge.

Suit to foreclose mortgage by the Wayne International Building & Loan Association against Henry H. Moats and others. From a judgment marshaling the liens, the plaintiff appeals. Affirmed.D. W. Howe and Morgan & Morgan, for appellant. Miller & Elam and D. A. Myers, for appellees.

McCABE, J.

The appellant sued the appellees to foreclose a mortgage on real estate given by appellee Moats and wife to secure a bond executed to appellant by said Henry H. Moats for a loan of $3,000. Cross complaints were filed by certain defendants, setting up and seeking to enforce against the same real estate liens of mechanics and material men and judgment liens. The issues made were tried by the court, resulting in a special finding of the facts, upon which the court stated conclusions of law, to the second of which the plaintiff (appellant) excepted. The court rendered judgment pursuant to the conclusions of law, and afterwards overruled appellant's motion to modify the decree. The second conclusion of law and the refusal of the court to modify the decree are called in question by the assignments of error. The refusal to modify presents no other question than that presented by the second conclusion of law, that being the only question before us on this appeal.

The substance of so much of the facts found by the court as are necessary for the decision of the question presented by the second conclusion of law is: That on September 7, 1895, the defendant William H. Perkins sold and conveyed to the defendant Henry H. Moats a certain described lot in the city of Indianapolis; and on September 9, 1895, in consideration of said conveyance, said Moats executed to said Perkins four promissory notes, of $200 each, payable in one, two, three, and four years after the date thereof, with interest at 6 per cent. per annum, and at the same time executed a mortgage on said lot, in which his wife, Emma C., joined, to secure said notes, which mortgage, within 45 days, was duly recorded in the recorder's office of Marion county. That afterwards, on November 18, 1895, the bond and mortgage sued on were executed by said Moats and wife to appellant upon said real estate, to secure the payment of said loan of $3,000, which mortgage was duly recorded in the same recorder's office within 45 days. That afterwards, on November 30, 1895, said Perkins executed, and caused to be entered of record upon the margin of the record of his said mortgage, a waiver, in the words and figures following: “I hereby waive the lien of this mortgage, and make it second and junior to the one executed by H. H. Moats to the Wayne International B. & L. Assn., for $3,000.00. November 30th, 1895. Wm. H. Perkins. Attest: W. E. Shilling, R. M. C., by Benjamin Franklin, Dep.” That said loan was made by said association for the purpose of enabling said Moats to erect a dwelling and appurtenant improvements upon said real estate, to the value of $3,000, it being the intent of said Moats and said association that the improvements so erected, together with said real estate, should afford security for the amount of said loan and the amount due said Perkins, and that, in consideration thereof, the latter executed the waiver aforesaid. That Charles W. Phillips, agent of said association, in addition to the above, promised said Perkins, on behalf of said association, that the money so loaned should all be paid out for and on account of labor and material used in constructing said improvements, and that he would, for and on behalf of said association, see that said money was so applied, and that all such accounts were paid; said agreement being made prior to said waiver and in consideration thereof. That, prior to and at the time of the execution of said mortgage to plaintiff, said agent Phillips was located in Indianapolis, and his duties as such agent, as authorized by plaintiff and as usually exercised by him in course of his agency, were to solicit applications for stock, take applications for loans, and submit them to the home office of the plaintiff for approval, and make monthly collections. When money was remitted to an applicant for a loan, it was by check, payable to such applicant, mailed to said Phillips, and by him delivered to the applicant. The plaintiff had given Phillips no other or different authority than as herein stated. It was through him, as such agent, that plaintiff's loan was effected. Afterwards, relying upon said waiver, said plaintiff advanced to said Moats, upon said loan, the sum of $2,600, all of which was paid to said Moats except the sum of $600, which was paid to the Russell Lumber Company for materials furnished by it for improvements hereinafter mentioned, and which plaintiff was compelled to pay to prevent said company from filing and enforcing a mechanic's lien, and in order to protect the lien of its mortgage. Shortly after the execution of the mortgage by Moats and wife, said Moats began the erection of a dwelling house, barn, and outhouse upon the real estate hereinbefore described, to wit, about December 10, 1895; but about May 1, 1896, and before the completion of said house, said Moats abandoned work thereon, and other improvements, which were not completed. That said Moats paid out, for labor and material used therein, about $900, including said $600 paid to the Russell Lumber Company.

The court finds all the facts necessary to constitute three several mechanics' liens on said real estate incurred in the erection of said dwelling, all of which had been assigned to the cross complainant Gardner, dated December 17, 1895, January, 1896, and January 8, 1896, aggregating $155.13. There being no question about these liens and dates thereof or amounts, the...