Cook v. White

47 Ind. 104

• Court: Indiana Supreme Court
• Decided: May 15, 1874
• Status: Published

Opinion

Downey, J.

This was an action by the appellee, as mortgagee, against the appellants, as mortgagors, of certain real estate, to foreclose the mortgage. The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was overruled. There was an answer of general denial, a trial by the court, a finding for the plaintiff) a motion fór a new trial made by the defendants overruled, and judgment on the finding.

The errors alleged are the overruling of the demurrer to the complaint, overruling the motion for a new trial, and in rendering a judgment for a sale of the property.

The first objection urged against the complaint is, that it ■does not show that, the mortgage had been recorded. Thiswas wholly unnecessary. The mortgage was valid between the immediate parties, without being recorded.

The next objection is, that no copy of the mortgage and notes was filed with the complaint. The point is exactly as in Prince v. The State, etc., 42 Ind. 315, and must be decided In favor of the appellant.

This ruling renders it unnecessary to decide the other questions presented by the assignment of errors.

The judgment is reversed, with costs, and the cause remanded, with instructions to sustain the demurrer to the complaint.

Petition for a rehearing overruled.