Catterlin v. Armstrong , 1885 Ind. LEXIS 299 ( 1885 )

Mitchell, J.

This cause is here on appeal the second time in substantially the same form. Catterlin v. Armstrong, 79 Ind. 514. The questions made before, except as to the statute of limitations, are not now in the record, or are not again presented. It is a proceeding to foreclose an indemnity mortgage executed by John W. Blake on certain lands therein described to Armstrong. The appellee had become bound as surety for Blake on certain notes described in the mortgage, which contained in it a stipulation that “ said Blake expressly agrees to pay all of the above described notes without any relief whatever from valuation and appraisement laws, and to keep the said Isaac D. Armstrong unharmed as his security.” The breach charged is that “ said John W. Blake did not pay the sums of money in said mortgage stated and save said plaintiff unharmed, but that on the contrary said plaintiff was compelled to and did pay all of said sums in full.”

After the execution of the Armstrong mortgage, Catterlin became the owner of Blake’s interest in the part of the land here involved, by purchase under a decree of foreclosure of a prior mortgage given by Blake to one Kerr; Armstrong was not made a party to the proceedings in the Kerr foreclosure. The complaint is needlessly encumbered with a recital at large of the proceedings to foreclose the Kerr mortgage. All that was material in that connection was to have averred that Catterlin had become, or claimed to be, the owner of Blake’s interest in the mortgaged-premises, and that he was in possession. How he derived his title was immaterial. If there was any claim that Armstrong’s interest in the land had been barred by the Kerr foreclosure, that was matter foi’ Catterlin to have brought forward by answer, and need not have been anticipated in the complaint. All that is said in the complaint, upon the theory which it counts, respecting the Kerr mortgage, and its foreclosure and the sale under it, is of no further consequence than to show that Catterlin was at the time of the commencement of this proceeding the owner of the fee in the land, and that he was in possession.

It is now urged that the court below erred in overruling a demurrer to the complaint, and the point is made that it contains no averment, either directly or inferentially, that the money which the appellee paid as the surety of Blake had not been repaid to him. It lias been frequently held that good pleading requires that in all actions for breaches of contract for the payment of money, the complaint should either aver a non-payment of the money demanded, or facts from which its non-payment can be fairly inferred. Wheeler and Wilson M’f’g Co. v. Worrall, 80 Ind. 297; Higert v. Trustees, etc., 53 Ind. 326; Michael v. Thomas, 27 Ind. 501; Kent v. Gantrall, 44 Ind. 452.

It will be observed, however, that the mortgage sought to be foreclosed in this record is one of indemnity, in which there was written a direct stipulation to pay the several notes on which the appellee was bound as surety, and it has been held that a failure on the part of the mortgagor to j>ay the debt according to the engagement in the bond or mortgage constitutes such a breach as entitles the mortgagee to foreclose his mortgage at once, even without paying the debt himself. Gunel v. Cue, 72 Ind. 34; Strong v. Taylor School Tp., 79 Ind. 208; Bodkin v. Merit, 86 Ind. 560.

In all actions to recover money due on promissory notes, or for the breach of contracts by the terms of which money is to be paid to the obligee in the contract, the failure to pay the money to the plaintiff constitutes the breach which gives the right of action, and in all such cases it must be averred that the money is due and remains tuipaid; but where a bond or mortgage contains a stipulation that the obligor or mortgagor will pay a sum of money to a third person, and save the obligee or mortgagee harmless, the failure to pay according to the stipulation constitutes the breach, and makes the right of action immediately complete. In such eases, where the stipulation to do the thing, the failure, and that the plaintiff has thereby sustained damage, are averred, the cause of action is sufficiently stated.

If no damage has been sustained, and none is probable, or if having been sustained it has been paid, these are proper matters to be averred and shown in defence. There was no error in overruling the demurrer to the complaint.

The mortgage, a copy of which is embodied in the complaint, embraces a description of other parcels of land in addition to that owned by the appellant. The prayer of the bill only asked a foreclosure against the appellant’s land. After the issues were fully completed, the appellant filed his written motion in which the court is asked to “ order the plaintiff to embody in his complaint a description of and prayer for foreclosure of the mortgage mentioned in his complaint, against all the other lands mentioned and described in said mortgage.” This motion was overruled by the court, and this ruling, it is argued, was error.

The court having properly held the complaint sufficient, and the case having been put at issue, it is not perceived how the motion could have been sustained. It is not apparent how the court could then have ordered the appellee to insert something more in his complaint, or in the prayer for relief, nor do we discover how the refusal to make the order operated to the injury of the appellant. Under this assignment the doctrine of marshalling securities is adverted to somewhat, and it is said in argument, too, “that if a joint personal surety is sued without the joinder of his co-sureties, and this appears from the face of the complaint, he may demur;” and further, that “.the general proposition is familiar that the release of one of several joint debtors is a release of all the others,” and the proposition is sustained by authority that a party has no right to split up his cause of action, etc. Conceding all this, we are yet unable to discover how it tends to show that the appellant’s motion should have been sustained. The real estate covered by the mortgage was all described in the mortgage, which was copied into the body of the complaint, and it was in no aspect of the case necessary or proper to describe it further. If any of it had been released from the mortgage to the detriment of the appellant, or if for any reason other tracts were or should have been made equally or primarily liable, with or before that owned by appellant, or if, in order to a complete determination of the equities of the whole case, other parties were for any reason necessary, all these were matters proper to be brought before the court by the appellant in some appropriate pleading, and, being in a court of equity, the decree would doubtless have been moulded according to the equitable rights of the parties quite regardless of the form of the prayer in the appellee’s bill.

The court below sustained demurrers to the fifth, sixth and eighth paragraphs of the appellant’s answer, and - this ruling is assigned for error.

The fifth paragraph of answer set up, that part of the land against which foreclosure of the mortgage was asked was not at the commencement of the suit owned by the defendant below, but that the same “ was then and still is the sole property of one Mary M. Given, who was not a party to the suit.”

As no ground was alleged why she should have been made a party, nor was it asked that she should be made a party, it is not perceived how the sustaining of the demurrer injured the appellant.

The sixth paragraph of answer alleges that after the appellee’s cause of action accrued on the mortgage, the mortgagor Blake filed his petition asking to be adjudged a bankrupt, and that although the appellee was duly notified of such proceedings, he failed to file and prove his claim against him, and failed to receive any part of the estate of Blake, and that he was duly adjudged and discharged as a bankrupt.

This answer was bad for two reasons: 1. It did not appear that the bankrupt had any estate for distribution; and, 2. The discharge of Blake as a bankrupt in no manner affected the lien of the appellee’s mortgage, which was taken before the adjudication was had. Truitt v. Truitt, 38 Ind. 16; Haggerty v. Byrne, 75 Ind. 499.

The eighth paragraph of answer set up the fifteen years’ statute of limitations.

This statute did not apply. The mortgage lien would not be barred until twenty years had elapsed after the cause of action accrued. Catterlin v. Armstrong, supra. There was no error in the ruling of the court on the answers.

Filed Feb. 17, 1885.

We have examined the points made by counsel as to the .admissibility of certain evidence admitted on behalf of appellee and as to the amount of the recovery allowed by the ■court below. We think the testimony was admissible, and that there is evidence sustaining the finding of the court.

Judgment affirmed, with costs.