Craig et ux. v. Donovan. to wit: The south-east quarter of section 6, in township 23, range 17 west, containing 160 acres, for which said conveyance the appellee paid the appellants the sum of two thousand dollars; that the appellants, by the terms of said deed, warranted that they were seized of said land and had good right to convey the same; whereas, in fact and in truth, they nor either of them had any title whatever to said land, and never had possession thereof, the same having been all the time, from before the date of said conveyance, in the lawful possession of the United States, and at the time of said conveyance the title to said land was in the United States; wherefore the appellee said there was a breach of the covenants in said deed, whereby he had been damaged in the sum of two thousand five hundred dollars, for which sum he demanded judgment. The deed which was the foundation of the appellee's action, and was made part of his complaint, was in the words and figures following, to wit: "This indenture witnesseth, that Thomas F. Craig and Mary E. Craig, his wife, of Montgomery county, in the State of Indiana, convey and warrant to Michael Donovan, of Montgomery county, in the State of Indiana, for the sum of two thousand dollars, the following real estate in Taney county, in the State of Missouri, to wit: The south-east quarter of section six (6), township twentythree (23), range seventeen (17), containing one hundred and sixty (160) acres, more or less. In witness whereof the said Thomas F. Craig and Mary E. Craig, his wife, have hereunto set their hands and seals, this 8th day of April, 1875. (Signed,) "THOS. F. CRAIG, [SEAL.] "MARY E. CRAIG." [SEAL.] This deed appeared to have been acknowledged, on the day of its date, by Thomas F. Craig and Mary E. Craig, Craig et ux. v. Donovan. his wife, before a notary public of Montgomery county, Indiana. It is very certain, we think, that the complaint did not state a good cause of action against the appellant Mary E. Craig; for it appears from the deed, which was made part of the complaint, that she was a married woman, the wife of her co-appellant, when the deed was executed, and therefore she was not bound by any of the covenants contained in the deed. If she had demurred separately to the complaint, for the want of sufficient facts therein, it would have been error to overrule her demurrer; but, as she demurred to the complaint jointly with her co-appellant, if it stated facts sufficient to constitute a cause of action against her co-appellant, then the demurrer was correctly overruled as to both the appellants. Trisler v. Trisler, 38 Ind. 282; Shore v. Taylor, 46 Ind. 345; and Wilkerson v. Rust, 57 Ind. 172. It will be seen from the deed above set out, that it conforms substantially to the form given for a warranty deed in section 12 of "An act concerning real property and the alienation thereof," approved May 6th, 1852. 1 R. S. 1876, p. 364. In that section, it is provided, that such deed "shall be deemed and held to be a conveyance in fee-simple to the grantee, his heirs and assigns, with covenant from the grantor for himself and his heirs and personal representatives, that he is lawfully seized of the premises, has good right to convey them," etc. The averments of the complaint show, that the deed in question was executed in this State, by and to resident citizens of this State. The action was brought to recover damages for an alleged breach of the covenant of seizin contained in that deed, "purely a personal covenant," which does not run with the land. Craig et ux. v. Donovan. It was alleged in the complaint, that the appellants had not, nor had either of them, any title whatever to the land conveyed, and never had possession thereof, but that the title thereto, at the time of said conveyance, was in the United States. If these allegations were true, and the appellants' demurrer admits their truth, then it is clear, we think, that the appellants' covenant of seizin was broken. immediately after it was executed, and a cause of action for the damages occasioned by such breach accrued at once to the appellee. Bottorf v. Smith, 7 Ind. 673, and Bethell v. Bethell, 54 Ind. 428. The doctrine of the case last cited, it seems to us, is decisive of the case now before us. It was said in the case cited, and may well be said in this case: "As the deed was executed in Indiana, and as the parties resided therein, it would seem that they accepted the law of Indiana as the exponent of the rights conferred and obligations imposed thereby, beyond the mere passing of the title.” It is clear, we think, that the court did not err in this case, in overruling the appellants' demurrer to the appellee's complaint. 2. In their brief of this cause in this court, the appellants' counsel have failed to discuss any question, or present any point, arising under the second alleged error-the overruling of the motion for a new trial. We conclude, therefore, that the second error is waived. This is now the established practice of this court, and we can see no good reason for deviating from this reasonable and well settled rule, in the case at bar. Breckenridge v. McAfee, 54 Ind. 141; Graeter v. Williams, 55 Ind. 461; Roche v. The Roanoke Classical Seminary, 56 Ind. 198. We find no available error in the record. The judgment is affirmed, at the appellants' costs. Holmes et al. v. Hinkle. 63 518 144 362 HOLMES ET AL. v. HINKle. CHATTEL MORTGAGE.-Identity of Note Secured and Property Mortgaged. -Evidence.-Judgment on Note.- Subsequent Foreclosure.—Attorney's Fees. -A chattel mortgage executed to secure the payment of a series of promissory notes described them simply by giving the date, amount and maturity of each, but named neither the payee nor maker, and described the mortgaged property simply as "one steam saw-mill, and fixtures thereunto belonging," etc. The note last maturing, being the only one unpaid, and stipulating for an attorney's fee, was put into judgment, for the amount of the principal, interest and attorney's fee, in a simple action on the note, against the maker, by an assignee, who thereupon assigned the judgment to the payee, who was also the mortgagee, and who brought suit on said judgment, to foreclose the mortgage against the mortgagors and the remote purchaser of the mortgaged property, who answered by general denial and also by alleging payment of the mortgage debt to the plaintiff by a purchaser of the mortgaged property, a failure of the plaintiff to release the mortgage, his subsequent assignment of the same to another, and that said defendant had thereafter purchased the mortgaged property, bona fide and without notice of the mortgage. Held, that evidence identifying the property and promissory note described in the mortgage, as being the note and property in controversy, was proper. Held, also, that such judgment and the assignment thereof, and the papers filed in the action wherein the judgment was obtained, as also the mortgage, were admissible in evidence. Held, also, that the rendition of judgment on the note was no bar to the action for foreclosure. Held, also, that an attorney's fee for taking judgment in the foreclosure suit can not be recovered. PRACTICE.- Order of Admitting Evidence.-Judicial Discretion.-It is within the discretion of the court, in a proper case, to allow a party to introduce original evidence after the hearing of evidence has closed. From the Jackson Circuit Court. W. K. Marshall, for appellants. B. H. Burrell and F. Emerson, for appellee. PERKINS, J.-The following is a copy of an executed note : "$500. Holmes et al. v. Hinkle. the order of D. T. Hinkle & Bro. five hundred dollars, value received, without any relief from valuation or appraisement laws of the State of Indiana, with interest at ten per cent. per annum from time due till paid. If this note be collected by suit, the judgment shall include a reasonable fee for plaintiff's attorney. 66 Due July 15th, 1871. JAMES RAMEY, "DANIEL E. RAMEY." The following is a copy of the mortgage executed to secure the payment of said note: "This indenture witnesseth, that James Ramey and Daniel E. Ramey, of Jackson county, Indiana, mortgage and warrant to David T. Hinkle and William A. Hinkle the following personal property, to wit: One steam sawmill and fixtures thereunto belonging; also, the team and wagons, consisting of five yoke of oxen and two log wagons, with the chains thereunto belonging; to secure the payment of five notes, bearing date of 15th day of October, 1869, of five hundred dollars each; one due in three months, one in six months, one in fifteen months, one in eighteen months, and one in twenty-one months, from date of said notes. "In witness," etc. [SEAL.] "JAMES RAMEY, The mortgage was duly executed and recorded. The note described in the complaint is the last of the above mentioned series. The following endorsements are upon said note: "March 24th, 1870, received $100. "J. L. & W. A. HINKLE." "For value rec'd, we assign this note to C. L. Wayman, Dec. 5th, 1870. JACOB L. HINKLE, "WILLIAM A. HINKLE." On the 15th day of August, 1871, said Charles L. Wayman obtained a judgment, in the Jackson Circuit Court, |
Get this book in print