Loudermilk v. Citizens Bank of Mooresville

505 N.E.2d 107, 1987 Ind. App. LEXIS 2459
CourtIndiana Court of Appeals
DecidedMarch 19, 1987
DocketNo. 55A01-8603-CV-57
StatusPublished
Cited by3 cases

This text of 505 N.E.2d 107 (Loudermilk v. Citizens Bank of Mooresville) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Loudermilk v. Citizens Bank of Mooresville, 505 N.E.2d 107, 1987 Ind. App. LEXIS 2459 (Ind. Ct. App. 1987).

Opinion

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

John and Geneva Loudermilk appeal the trial court's order foreclosing a mortgage. We reverse.

FACTS

Robert and Nancy Heath owned real estate known as Summer Place. They placed upon the real estate two mortgages. The first mortgage was executed on June 27, 1978. The Heaths subsequently defaulted, resulting in a judgment of foreclosure on March 5, 1984, in favor of Citizens Bank against all defendants holding any interest in the real estate. The parties do not dispute this foreclosure.

The second mortgage was entered into on October 18, 1978, between the Heaths and Citizens Bank. This was an "indemnifying mortgage" to secure all future advances to the Heaths. This mortgage was recorded. Contemporaneous with the execution of the second mortgage was the bank's advance of $25,000. Thereafter, there were a series of renewals of the obligation through June 29, 1981. On this date, the principal amount owed was $50,-000. Another advancement was made on May 1, 1979, in the amount of $25,000. Like the advance made on October 18, 1978, there were a series of renewals on the second advance through June 29, 1981. At that time, the principal amount owed on the series was $24,000. Therefore, the total, principal amount due under the indemnifying mortgage as of June 29, 1981, was $74,000.

On December 15, 1980, the Heaths conveyed a half interest in Summer Place to the Loudermilks. On May 18, 1981, the Heaths conveyed the remaining half interest to the Loudermilks. The warranty deed specifically was made subject to the first mortgage and the second, indemnifying mortgage. At the time of the final conveyance, the balance under the indemnifying mortgage was $74,000. This latter conveyance to Loudermilks was over one month prior to the last two renewal notes signed on June 29, 1981.

The previous renewal notes on the indemnifying mortgage apparently were signed by both Robert and Nancy Heath. However, the last two renewals which were made on June 29, 1981, contained only Robert's signature.

After default, the trial court ordered foreclosure of the indemnifying mortgage on December 18, 1984, after a bench trial. The Loudermilks subsequently perfected this appeal.

ISSUE

Although the appellants present a number of issues for review, the following is dispositive:

Whether under the terms of the mortgage in question a renewal on an amount owed under an indemnifying mortgage is secured by the mortgage when only one of the two mortgagors signed the renewal.

[109]*109DISCUSSION AND DECISION

The Loudermilks contend that Robert Heath's signature on the two June 29, 1981, renewals without his wife's signature resulted in a debt which was valid but unsecured by the indemnifying mortgage. The Loudermilks therefore argue that foreclosure was improper. The bank contends that the terms of the mortgage were broad enough to secure renewals signed by either Robert or his wife.

Our court has addressed a similar issue. In Merchants National Bank and Trust Co. v. H.L.C. Enterprises, Inc. (1982), Ind. App., 441 N.E.2d 509, a husband and wife executed a mortgage on their home which included future advances. The mortgage contained a clause stating, "This Mortgage shall also secure the payment of any other liabilities, joint, several, direct, indirect, or otherwise, of Mortgagors to the holder of this Mortgage." (Emphasis added). Thereafter, the husband alone signed three promissory notes. Upon default, the bank attempted to foreclose the mortgage. We held the mortgage's "dragnet clause" was sufficiently broad to include the notes signed only by the husband. Id. at 513-14.

In HL.C. we cited with approval an instructive Michigan case. In Holiday Inns, Inc. v. Sucher-Schaefer Investment Co. (1977), 77 Mich.App. 658, 259 N.W.2d 179, two co-mortgagors signed a mortgage which secured future advances "between the Mortgagor and the Mortgagee". Subsequently, future advances were made on the signature of only one of the mortgagors. The court held that the only debts secured by the mortgage were those signed by both mortgagors. Id. at 665, 259 N.W.2d at 182. The court bolstered its conclusion with the following:

"We find considerable support in other jurisdictions for this view. Where there are three co-mortgagors and the dragnet clause refers to these mortgagors as 'party of the first part' and 'grantor' and covers the indebtedness of the 'grantor', notes subsequently signed by only one of the co-mortgagors are not secured by the mortgage. Americus Finance Co. v. Wilson, 189 Ga. 635, 7 S.E.2d 259 (1940). The same rule applies where the co-mortgagors are husband and wife and one of them subsequently executes a note. Monroe County Bank v. Qualls, 220 Ala. 499, 125 So. 615 (1929); First Bank and Trust Co. v. Welch, 219 Iowa 318, 258 N.W. 96 (1934); Cordele Banking Co. v. Powers, 217 Ga. 616, 124 S.E.2d 275 (1962); United States v. American National Bank of Jacksonville, 255 F.2d 504 (CA 5, 1958).
"We would distinguish these cases from those dealing with dragnet clauses which refer to the debts of the 'mortgagors or either or any of them'. Such language and similar language has been held to cover subsequent notes of one of the co-mortgagors. Lamoille County Savings Bank and Trust Co. v. Belden, 90 Vt. 535, 98 A. 1002 (1916); Walters v. Merchants and Manufacturers Bank, 218 Miss. 777, 67 So.2d 714 (1953); Carlson v. Lawrence H. Oppenheim Co., 334 Mass. 462, 136 N.E.2d 205 (1956); Wright v. Lincoln County Bank, 62 Tenn.App. 560, 465 S.W.2d 877 (1970). See also First v. Byrne, 238 Towa 712, 28 N.W.2d 509 (1947)."

Id. at 665-66, 259 N.W.2d at 182. The court went on to note, "'The dragnet clause in this mortgage covers debts between mortgagor and mortgagee. The dragnet clause does not say 'the mortgagor or either or any of them.'" Id. at 666, 259 N.W.2d at 182. The court interpreted the term "mortgagor" as used in the mortgage to mean both mortgagors, not just one of them. Thus, one co-mortgagor's signature did not secure the debt under the mortgage.

Our supreme court reached a similar result. In Citizens Bank and Trust Co. v. Gibson (1986), Ind., 490 N.E.2d 728, a husband and wife executed a mortgage with the following dragnet language:

"Pearson E. Gibson and Marion M. Gibson, Husband and Wife, ... hereinafter called 'MORTGAGOR' do hereby mort gage and warrant....
"This Mortgage is executed to secure the due and punctual payment of all indebtedness of mortgagor and borrowers [110]

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505 N.E.2d 107, 1987 Ind. App. LEXIS 2459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loudermilk-v-citizens-bank-of-mooresville-indctapp-1987.