Cain r. Hanna et al. tiff, who assigned the certificate of purchase he received from the sheriff to John Peters, to whom the sheriff executed his deed accordingly; that Peters afterwards conveyed the premises to Martin V. McKinney and Estella McKinney, his wife, "who were, at the time, the owners of the other undivided half of said real estate;" that afterwards McKinney and wife conveyed the whole of said real estate to John W. Kernodle, who, with his wife, Clarissa A. Kernodle, executed a mortgage to the appellees, to secure the payment of a certain promissory note, described; that the appellees afterwards recovered judgment against Kernodle on the note, and a decree foreclosing the mortgage, under which the sheriff of the county sold the real estate to the judgment plaintiffs, who received the sheriff's deed therefor; that the appellant was not made a party to, and had no notice of, the suit by McKinney to foreclose the Lupton mortgage; that the appellant, at the May term of the Boone county Court of Common Pleas, 1868, recovered judgment in rem against the mortgaged premises, upon the mortgage made to him by Kraft, as aforesaid. The complaint also alleges the value of the mesne rents and profits of the premises enjoyed by the appellees, and avers a tender of the balance due them. Prayer that an account may be taken of the rents and profits, that the appellees be adjudged liable therefor, and that the amount be applied to the payment of their judgment, and, upon payment of the balance, that the appellant be allowed to redeem said premises, and have the same sold to pay his judgment, interest and costs, and for other proper relief, etc. Upon the issue of a general denial, the case was submitted to the court, and a finding had for the appellees. By a motion for a new trial, overruled and exceptions taken, the appellant took his appeal, and has brought the evi Cain v. Hanna et al. dence before us, upon which the only question presented in the case arises. At the trial the appellant introduced as evidence the mortgages, notes, judgments, decrees, executions, sheriff's returns and deeds, as charged in the complaint. As to these the question is not upon the weight of oral evidence, which is for the jury to decide, but one of the construction of written evidence, which is one for the court to decide; and we think the written evidence in this case clearly shows, that the appellant is entitled to have his mortgage debt paid out of the real estate in question. The mortgage to Lupton, under which the appellees remotely claim, and the mortgage to the appellant under which he immediately claims, were both executed on the same day, by the same mortgagor, upon the same real estate, which is now in controversy, and were both recorded within time. There is, therefore, no precedence shown between them; neither is senior or junior to the other; both stand equal upon the same ground. The appellant has the same right to have his mortgage debt paid ont of the mortgaged estate as Lupton had to have his mortgage debt so paid; and all who claim under the decree of foreclosure of Lupton's mortgage, to which the appellant was not a party, and of which he had no notice, stand upon no better ground than Lupton did. But we do not think that the appellant stands in any condition to have the mesne rents and profits applied to appellees' debt; nor was it necessary, in a case of this kind, where both parties can be secured out of the real estate mortgaged, to make a tender before suit is brought. If the appellees will pay the appellant's mortgage debt, they, having first bought the property, will be entitled, as against the appellant, to hold it; if not, the appellant will have the right to redeem the property, as against the appellees, and subject it to payment of his mortgage debt, or to foreclose his mortgage, and sell the Hayes et al. v. Matthews. property without redeeming it from appellees, if he prefers to do so. McCullum v. Turpie, 32 Ind. 146; McKernan v. Neff, 43 Ind. 503; Hasselman v. McKernan, 50 Ind. 441; Coombs v. Carr, 55 Ind. 303; Cauthorn v. The Indianapolis and Vincennes R. R. Co., 58 Ind. 14. The judgment is reversed, at the costs of the appellees; cause remanded, with instructions to sustain the motion for a new trial, and for further proceedings. HAYES ET AL. v. MATTHEWS. PROMISSORY NOTE.-Principal and Agent.-Signature.-Church Trustees.A promissory note in the usual form, “we promise to pay," etc., executed in the individual names of the makers, with the addition of the words "trustees of the" etc., "church," is the obligation of the makers individually and not of the church. SAME.-Alteration.-Erasure.-The erasure of such addition is immaterial, and is no defence to an action against the makers individually. SAME.-How Agent may Bind Principal.-To avoid individual liability on the part of the agent on a promissory note executed by an authorized agent on behalf of his principal, the name of the latter must be both inserted in, and signed to, the note. SAME.-Defence.-Parol Evidence.-No defence to an unambiguous promissory note, involving the introduction of parol evidence, varying the terms and legal effect of the note, is sufficient. From the Kosciusko Circuit Court. C. Clemans and J. H. Taylor, for appellants. NIBLACK, J.-John W. Matthews sued William Hayes, Samuel Galbreath and Joseph H. Taylor, administrator of the estate of George W. Ryerson, deceased, on the following promissory note: "$200. PIERCETON, IND., Jan'y 11th, 1871. "Twelve months after date, we promise to pay to the Hayes et al. v. Matthews. order of J. W. Matthews the sum of two hundred dollars, payable at, value received, without any relief from valuation or appraisement laws, with interest at ten per DR. WM. HAYES, "GEO. W. RYERSON, "S. GALBREATH." cent. The defendants answered in two paragraphs: 1. That, at the time of the alleged execution of the note sued on, the persons whose names were attached to it as the makers thereof, were the trustees of the First Universalist Church, of Pierceton, Indiana, a corporation duly organized under the laws of the State; that said note was executed by the makers as trustees, as above stated, and not in their individual capacities, and was accepted by the plaintiff as the note of said corporation, and not otherwise; that, when the said makers signed their names to said note, there were attached to, and placed opposite, their names, the words "Trustees of the First Universalist Church, of Pierceton, Indiana;" that said words, so attached to and placed opposite the names of said makers, had been erased from off the face of said note, without the knowledge or consent of said makers, and for the purpose of making them personally liable to pay said note. Wherefore the defendants denied the execution of the note sued upon; and said paragraph was verified by the affidavit of the defendants. 2. That the First Universalist Church, of Pierceton, Indiana, was a corporation duly organized under the laws of the State, and authorized to transact business as such, and that the makers of the note in suit were, at the time said note was executed, the trustees of such corporation; that said note was executed for money loaned to such corporation, and as a church note; that said note was executed by the makers thereof as trustees, and in the manner and form directed by the church at a regular and public Hayes et al. v. Matthews. meeting, and was taken and accepted by the plaintiff as a church note; that the plaintiff loaned his money to the church corporation, and not to the makers of said note individually; that said makers did not use said money for their own benefit, but instead thereof used the same to build a church edifice. The plaintiff demurred separately to each paragraph of the answer, and the court sustained his demurrer to both paragraphs. The defendants declining to answer further, the court assessed the plaintiff's damages at the amount due upon the note, and rendered judgment for. the amount of the damages so assessed against the defendants. The appellants contend that both paragraphs of the answer were sufficient as defences to the appellee's action, and that consequently the court erred in sustaining the demurrer to those paragraphs. If the note in judgment in this action had the words, "Trustees of the First Universalist Church, of Pierceton, Indiana," attached to it, and following the names of the makers, it would not even then, on its face, purport to be the promise of the corporation known as the First Universalist Church, of Pierceton, Indiana, to pay the sum of money specified in it. It would still only be the personal promise of the makers to pay the sum named, the additional words constituting merely a description of the persons of the makers, without in any manner affecting the legal character of the note itself. We are sustained in that view of this case by the case of Mears v. Graham, 8 Blackf. 144, and several subsequent cases. It has been held, that, in order to bind the principal, and make it his contract, the instrument must purport on its face to be the contract of the principal, and his name must be inserted in it and signed to it, and not merely the name of the agent, even though the latter be de |