Ebersole v. Redding

22 Ind. 232

• Court: Indiana Supreme Court
• Decided: May 15, 1864
• Status: Published

Opinion

Perkins, J.

Complaint filed in November, 1861, by Redding v. Ebersole and wife, to foreclose a mortgage. The mortgage was executed to secure three notes, the first of which became due the 1st of September, 1861; the second on the 1st of September, 1862; and the third on the 1st of September, 1863. •

These notes being payable on fixed days, could not be paid-before those days severally, unless the payee pleased to consent to receive payment before those days. ■ It would have been otherwise, had they been payable on or before those days respectively. Notes will not be presumed to have been paid before they become due.

John B. Croffroth, for the appellants.

The complaint was accompanied by alleged copies of the notes and a copy of the mortgage, in which the notes were described, and variances between them and the averments in the complaint could thus be obviated by amendment, and would be deemed corrected. See notes to 2 G-. & H. p. 291.

The complaint averred that the note then due had not been paid; and if it was defective in not also averring that the two not due were unpaid, the defect should have been remedied by means of a motion, the complaint containing but one paragraph, and that for the foreclosure of the mortgage, which became subject to foreclosure on the non-payment of one note, when due and unpaid.

2sTo objection was taken below to the terms of the judgment, and objections thereto can not be first raised in this Court. Preston v. Sandford’s Adm’r, 21 Ind. 156; Baker v. Horsey, id. 246.

Per Curiam.

The judgment below is affirmed, with 1 per cent, damages and costs.