Pence v. Armstrong

95 Ind. 191, 1883 Ind. LEXIS 13

• Court: Indiana Supreme Court
• Decided: January 11, 1883
• Docket: No. 9628
• Status: Published

Opinions

Best, C.

This action was brought by Nathan Armstrong against Samuel Pence, James VanWinkle, Elijah J. Walden and others, to reform and foreclose a mortgage.

The action was commenced in the Madison Circuit Court and the venue changed to the Plenry Circuit Court. After the venue was changed an amended complaint was filed.

The amended complaint averred, in substance, that Alfred Walker, on the 23d day of March, 1874, executed to James M. Dickson a mortgage upon the following real estate in Madison county, Indiana, viz.: Commencing at a point on the east side of Main street, in the city of Anderson, 208 feet south of the southwest corner of lot number seven (7), in Williams’s second addition to said city, running thence south with the east line of Main street, in said city, to the Cleveland, Columbus, Cincinnati and Indianapolis railroad; thence east by south with said railroad to the first alley; thence north to a point directly east of the starting point, and thence west to the place of beginning, to secure a note of $1,280, executed at the same time, payable on the 6th day of February, 1876, with interest and with attorney fees, which mortgage was duly recorded in the recorder’s office of said county on said day; that said real estate was thus described in said mortgage: “ Commencing at the southwest corner of a lot formerly owned by B. F. Jackson, in the southeast square of the city of Anderson, running thence south with the east line of Main street, in said city, to the ground of the Cleveland, Columbus, Cincinnati and Indianapolis railroad; thence east with said ground to the first alley; thence west to a point directly east of the starting point; thence west to the place of beginning; ” .that the word “ west” was written in the description instead of “north” by mistake, and that the southwest corner of the Jackson -lot is 208 feet south of lot number seven (7), in Williams’s second addition to said city; that on the 4th day of November, 1875, said James M. Dickson endorsed said note to the Madison County Bank, and said bank assigned the same to the Indianapolis National Bank; that on the 23d day of March, 1876, the last named bank recovered a judgment upon such note, in the circuit court of the United States for the District of Indiana, for $1,518, and on the 27th day of April, 1876, the plaintiff became replevin bail upon said judgment; that afterwards he was compelled to and did pay $1,860.34, in full of said judgment, which sum, with the interest thereon, is due him and remains unpaid; that Alfred Walker1, on the 26th day of February, 1875, conveyed said real estate to Elijah J. Walden, who still owns the same, and that Samuel Pence, James VanWinkle, and the other persons named, each claim some lien upon or title to said land, but that the lien or title of each is subject to said mortgage; that each of said persons had full and actual knowledge of said mortgage, and that the same was unpaid at the time such liens or titles were acquired. Wherefore he asks to be subrogated to the rights of the mortgagee and his assignees under said mortgage, and that the same be reformed and foreclosed.

Separate demurrers were filed to the complaint by Samuel Pence, James Van Wiukle and Elijah J. Walden, on the ground that it did not state facts, etc. These demurrers were overruled. Separate answers were filed. The answer of Van-Winkle contained four, and the answer of Pence contained five paragraphs. They also filed a joint answer of seven paragraphs. A demurrer was sustained to the fifth and sixth paragraphs of the joint answer, and a reply in several paragraphs was filed to each answer. A separate demurrer by Pence to the second and fifth paragraphs of the reply, and a joint demurrer by Pence and VanWinkle to the'seventh and tenth paragraphs of the reply were overruled.

The issues were tried by the court, a finding was made for the plaintiff, and, over a motion for a new trial, judgment was rendered upon the finding.

Samuel Pence, James VanWinkle and Elijah J. Walden appeal, and assign as error the various rulings made by the court during the progress of the cause. These will be considered in the order in which they are presented.

The appellants insist that the complaint was insufficient, and that the several demurrers -should have been sustained. The first objection made to the complaint is that the description is so indefinite that it can not be made certain by averment. We think otherwise. The only uncertainty we observe in the description is as to the location of the Jackson lot, and this is rendered certain by the averments in the complaint. That this may be done has been repeatedly decided by this court. Torr v. Torr, 20 Ind. 118; White v. Hyatt, 40 Ind. 385; Halstead v. Board, etc., 56 Ind. 363, and authorities there cited.

A description may be so indefinite that it can not be rendered certain by averment, but this is not, in our opinion, such description.

It is further insisted that the description does not fix definitely the south line; that the. west line is described as running south to the ground of the Cleveland, Columbus, Cincinnati and Indianapolis Railroad, and that the word “ ground ” renders the description uncertain. It is said that if the word' “ track ” had been used instead of the word “ ground ” the1 description would have been definite, but as the company may have owned ground -other than its right of way the use-of such word renders the description indefinite. We do not think the use of this word renders the description void. The phrase, the ground of the railroad, evidently means its right of way, and the south line of the parcel described is upon the north line of the right of way of said railroad company. This was sufficient. Harrison, etc., Turnpike Co. v. Roberts, 33 Ind. 246. The complaint was not, for such reason, insufficient.

•It is next insisted' that.the complaint was bad, because a person who becomes replevin bail upon a judgment rendered upon a note secured by a mortgage, and who is compelled to pay the same, is not entitled to be subrogated to the rights of the mortgagee or any holder of the mortgage.

This position is unsupported by authority. On the contrary, it is well settled that such persons are sureties, and as such are entitled to be subrogated to the rights of the creditor in all securities held by him. Vert v. Voss, 74 Ind. 565; Kane v. State, ex rel., 78 Ind. 103; Downey v. Washburn, 79 Ind. 242; Gerber v. Sharp, 72 Ind. 553.

The next objection made to the complaint is, that there is no averment that Alfred Walker, the judgment debtor, is insolvent; and in support of this objection it is insisted that since the judgment, paid by the appellee Armstrong as replevin bail, is continued in force for his benefit, he can not foreclose the mortgage until he has exhausted the property of Walker by execution upon such judgment.

No authority is cited in support of this proposition, and we know of none. The appellee, as we have shown, is entitled to be subrogated to all the rights of the mortgagee, or any holder of such mortgage, and if such person could have foreclosed the mortgage after he had recovered a judgment upon the note, without first exhausting the property of the judgment debtor by execution, the appellee can do the same thing. That such person could have 'done so admits of no doubt. These remedies arc cumulative, and might, at the common law, have been pursued concurrently. Under our statute, however, a party can not foreclose his mortgage while he is prosecuting any other action for the same debt, or while he is seeking to obtain execution of any judgment in such other action ; but this court has several times held that this statute does not preclude a plaintiff from foreclosing his mortgage after he has recovered a judgment for the debt; and in Hensicker v. Lamborn, 13 Ind. 468, it was held that there is nothing in the statute, or the principles of the common law, that would require a mortgagee, who _ has recovered a judgment for the debt, to have an execution issued and returned unsatisfied before he can foreclose his mortgage. If such person is not seeking to obtain an execution upon his judgment, he has an undoubted right to foreclose his mortgage, and if it be conceded* that equities may exist which will authorize the court to control him in the enforcement of his remedies, these need not be negatived in the complaint. This objection was' not well taken.

The next objection to the complaint is urged by Elijah J. Walden. He insists that as he is presumptively a purchaser for value, the mortgage can not be reformed and foreclosed against him without an averment that he had notice of such mistake when he purchased the land, and that the averment that he had “full and actual knowledge of said mortgage,” is not sufficient.

It is well settled that a mortgage which does not describe the land intended to be mortgaged can not be reformed and foreclosed against a subsequent bona fide purchaser of said land. It is also equally well settled that such mortgage may be reformed and foreclosed against a subsequent purchaser with notice of the mistake. This mortgage did not fail to describe the land, but the description was defective and uncertain without the aid of averments. Such descriptions, however, are not void, as they maybe made certain by averment. This description was thus made certain. The southwest corner of the Jackson lot, the starting point, was alleged to be 208 feet south of lot seven (7), in Williams’ second addition to the city of Anderson. This averment fixed the starting point. The starting point being fixed, the boundary line is given. It is true that the third line is described as running west from the alley, but as it is impossible to reach a point east of the starting point by running in such direction, this word must be disregarded as a false description. Dropping this word from the description, the third line runs, from the alley to a point east of the starting point. This point is not fixed by the description, and hence the appellee desires the mortgage reformed by substituting the word “ north ” for “ west,” so as to fix this point directly north of the southeast corner of said premises. Without the reformation sought, however, it is manifest that the description, as written, embraces all, or the greater portion of, the land purchased by Walden, and he is, therefore, bound by either actual or constructive notice of this mortgage, both of which are averred. The mere fact that it is necessary to reform this mortgage so as to fix definitely the northeast corner of these premises in no manner exonerates him from such consequences as notice of the mortgage imposes. If this mortgage contained no description of these premises, it could not be reformed and foreclosed against an innocent purchaser, but it does contain a ■description, and this description, though defective, was sufficient to put Walden upon inquiry, and thus to charge him with notice of the extent of the premises intended to be embraced in the mortgage. McAteer v. McMullen, 2 Pa. St. 32; Wade Notice, p. 138, section 319; Parker v. Teas, 79 Ind. 235. This objection, therefore, can not be sustained.

The next position taken is that the court erred in sustaining the demurrer to the 5th paragraph of the joint answer. The substance of this paragraph is that Alfred Walker, the judgment debtor, at the time the appellee became replevin bail, owned $18,000 worth of real estate in Madison county, Indiana, upon which said judgment was a lien, and that said Walker thereafter sold a large portion of said real estate to one Charles L. Henry, who agreed to pay said judgment, “and that it was then and there agreed, by and between the said Walker and Henry and this plaintiff, that said Henry should pay said judgment as,a part of the purchase-money for said land.”

The facts averred do not constitute a novation, as it is not shown that the appellee’s claim was extinguished by the agreement. Clark v. Billings, 59 Ind. 508; Bristol, etc., Co. v. Probasco, 64 Ind.406. The appellee, however, by the alleged agreement, obtained a promise for the payment of his claim, which he could have enforced as a promise made to a'third party for his benefit. Fisher v. Wilmoth, 68 Ind. 449; Clodfelter v. Hulett, 72 Ind. 137.

The facts stated show that the appellee has several remedies for the enforcement of his claim — one to foreclose the mortgage, another to collect by execution the judgment recovered against Walker, and the third to enforce the promise made by Henry to Walker for his benefit. These ■are cumulative, and either may be adopted. The existence of one does not deprive the appellee of the right to enforce either of the others. The mere fact that he could either cause an execution to issue upon the judgment, or could enforce the promise of Henry, did not deprive him of his remedy upon the mortgage. The acceptance of the promise without a relinquishment of the mortgage did not extinguish it, and so long as he retained it the mere acceptance of additional security would not preclude him from foreclosing it. It may. be inequitable to foreclose the mortgage and sell the property without first exhausting the other securities. If inequitable, the most that appellants can claim is an order directing the appellee to first exhaust the other securities. This they did not ask, but pleaded the facts in bar of the action. The facts do not constitute a bar. The appellee may never be able to realize anything by an execution upon the judgment, or by a suit upon the promise of Henry, and whatever equities may exist, requiring him to first exhaust these remedies, they can not deprive him of his right to foreclose the mortgage. There was, therefore, no error in sustaining the demurrer to this paragraph of the answer..

It is next insisted that the court erred in overruling the demurrer of Samuel Pence to the second and fifth paragraphs of the reply. These were directed to the second paragraph of the answer. This paragraph alleged, in substance, that said James M. Dickson owned the land in dispute, and while he owned it, in 1872, he executed a mortgage upon it to James Van Winkle, for $3,500; that Van Winkle transferred the mortgage to James A. J. Brunt, who foreclosed the same in 1873; that upon an order of sale issued upon said decree, said land was duly sold to said Brunt, on the 2d day of October, 1875; that a certificate of purchase was duly issued to him; that he assigned said certificate to the Madison County Bank, and said bank assigned said certificate to said Pence, to whom the sheriff afterwards duly conveyed said land, and by virtue thereof he is owner of the same divested of the lien of the appellee’s mortgage.

The second and fifth paragraphs of the reply allege, in substance, that within the year of redemption, and while the Madison County Bank owned the certificate of purchase, James M. Dickson transferred to said bank .certain notes he then held against Alfred Walker in redemption of said property, which notes said bank accepted in full satisfaction of said certificate and in full redemption of said property.

The first objection'made to these paragraphs is, that it is not averred that Dickson was owner or encumbrancer, and it is insisted that unless he was one or the other, he had no right to redeem the property. There would be much force in this objection, if it were only alleged that he had made payment to the clerk or tender of payment to the holder of the certificate, and it was insisted that such facts constituted a redemption of the property; but as it is averred that the redemption was in fact made, it is wholly immaterial by whom, made. The holder had the right to accept the redemption money, and having done so the redemption is complete, whether the person by whom the payment wás ma.de was legally entitled to make it or not.

The next objection is that it is not averred that the appellant Pence had notice of the redemption at the time he purchased the certificate. This was unnecessary. He took by the assignment no greater rights than his assignor possessed. If the property had been redeemed, as alleged, the certificate was annulled, and its assignment to the appellant did not entitle him to a deed. There was no error in overruling the demurrer to these paragraphs; nor was there any error in overruling the demurrer to the seventh and tenth paragraphs of the reply which present precisely the same question.

The motion for a new trial embraced various reasons. Among others it is insisted that the court erred in admitting in evidence the record of a deed made on the 25th day of March, 1865, to Benjamin F. Jackson, for a lot on the east side of Main street, in the city of Anderson. This deed was read for the purpose of fixing the starting point of the premises embraced in the mortgage. The objection to its introduction was that no proof had been offered to show that this was the lot mentioned in the mortgage. There was nothing in this objection. The fact that the deed purported, at a former period, to convey a lot to Benjamin F. Jackson, on the east side of Main street, in the locality in question, was enough to authorize its introduction in evidence. Nor is there anything in the suggestion that, as the appellee did not show that Jackson did not own this lot at the time the mortgage was made, he did not prove that Jackson formerly owned said lot, and hence there was a failure of proof.

It is also urged that the finding was contrary to the evidence. This position is based upon the following facts: The Indianapolis National Bank recovered judgment against Walker on the 23d day of March, 1876; on the 29th day of the same month said bank assigned said judgment to the Madison County Bank, and the appellee, on the 26th day of April thereafter became replevin bail. The appellants maintain that the assignment of the judgment did not transfer the mortgage to the Madison County Bank, and hence its payment by the appellee did not entitle him to be subrogated to the rights of any one under said mortgage. The cases of Ward v. Haggard, 75 Ind. 381, and Kelsey v. McLaughlin, 76 Ind. 379, are relied upon to support this proposition. These cases merely hold that the assignee of a judgment rendered upon a note can not, by virtue of such assignment, maintain an action against an endorser of the note. This doctrine does not prevent such assignee from foreclosing a mortgage executed to secure such note. This was expressly decided in the case of Holmes v. Hinkle, 63 Ind. 518, and is in entire harmony with the doctrine that the recovery of a personal judgment upon a note secured by a mortgage is no bar to a subsequent suit to foreclose the mortgage.

It is also insisted that the court erred in refusing to allow Samuel Pence to testify that he had no notice at the time he purchased the certificate of sale, that James M. Dickson had transferred notes to the Madison County Bank in redemption of the property. The appellants claim that the evidence shows that Brunt owned the certificate at the time of such transfer, and that the subsequent purchase of said certificate by the bank and its transfer to him without notice entitled him to a deed, notwithstanding such attempted redemption. We think otherwise. If the means were put in the hands of the bank with which to redeem said property from the sale, and the bank then purchased the certificate, such purchase operated as a redemption of the property. Shanklin v. Franklin L. Ins. Co., 77 Ind. 268. Under these circumstances, the bank could not claim title through such certificate, and the appellants who take the certificate subject to all equities can claim no greater rights. There was, therefore, no error in this ruling.

The remaining question arises upon the following facts: The judgment was recovered against Walker on the 23d day of March, 1876, and on the 29th of said month the Indianapolis National Bank assigned said judgment to the Madison County Bank. The appellee, on the 29th of April thereafter, and while the Madison County Bank owned said judgment, became replevin bail. After the execution of the above mortgage, Walker sold the land to Walden, who executed a mortgage upon it to secure the purchase-money. This mortgage was transferred to and held by the Indianapolis National Bank during the time it held the Walker mortgage. After the assignment of the judgment against Walker, the Indianapolis National Bank foreclosed the Walden mortgage, and at a sale upon such decree the appellants Pence and VanWinkle became the owners of the property.

’ They insist that a replevin bail upon a judgment rendered upon a note secured by a mortgage can not be subrogated to .said mortgage as against any person holding a lien upon the premises at the time such-person became replevin bail, though such lien is junior to the lien of the mortgage, and, therefore, the appellee is not entitled to be subrogated against them. This proposition can not be'maintained. The recovery of the judgment against Walker merged the note in the judgment, but the debt was not extinguished; it remained, and the mortgage secured it in its hew form, and might there-r after be foreclosed for the debt evidenced by the judgment. Rooker v. Benson, 83 Ind. 250.

As the mortgage remained as a subsisting security for and as incident to the debt evidenced by the judgment, the assignment of the judgment operated as a transfer of the mortgage to the Madison County Bank, and when the appellee paid the judgment he became entitled to be subrogated to the rights of said bank under the mortgage, and can enforce it against all persons against whom said bank could have enforced it. There can be no doubt about the right of the Madison County Bank to foreclose this mortgage against the Indianapolis National Bank, which held -a junior lien, notwithstanding the fact that the latter bank held both mortgages at one and the same time; and if the Madison County Bank could do- this, the appellee can do the same thing, not only as against the Indianapolis National Bank, but as against all. persons who claim through such bank by virtue of such lien. The Walker mortgage is the prior lien, and the appellee, when subrogated to it, is entitled to priority, notwithstanding the fact that he became replevin bail after the execution of the Walden mortgage. These liens are separate and distinct, and the accidental circumstance that both were held by the Indianapolis National Bank at the same time in no manner affects their priority. When the Indianapolis National Bank transferred this mortgage to the Madison County Bank, as stated, the lien retained by virtue of the Walden mortgage was junior to the Walker mortgage precisely as when executed, and we are at a loss to know upon what principle of equity the Indianapolis National Bank, or any person holding under it, can claim priority over any person entitled to subrogation under the Walker mortgage.. If both mortgages secured the same debt, or each secured a part of the same debt, the rule would be different, as the first in such case would not be entitled to be subrogated to the security as against the holder of the mortgage, until the entire debt should be paid. This was decided in Zook v. Clemmer, 44 Ind. 15, Vert v. Voss, 74 Ind. 565, and Rooker v. Benson, supra. This is not, however, the case. For these reasons we are of opinion that the appellee’s claim is superior to the claim of appellants under the Walden mortgage. The motion for a new trial was, therefore, properly overruled.

Filed Jan. 11, 1883.

We have now examined all the questions discussed, and as no error appears in the record the judgment should be affirmed.

Per Curiam. — It is therefore ordered, upon the foregoing opinion that the judgment be and it hereby is in all things affirmed, at the costs of appellants.