Mitchell v. The State. The charge in the indictment is, that he, on, etc., at, etc., "did then and there unlawfully sell one gill of intoxicating liquor to one John Hairholser, for the price of ten cents," said Mitchell not being licensed, etc. The defendant was arraigned, pleaded not guilty, was tried by a jury, and convicted. A motion for a new trial was denied, and a fine imposed upon the defendant. The motion for a new trial was as follows: "Defendant moves the court for a new trial in the above entitled cause : "1. Because the verdict of the jury is not sustained by sufficient evidence; and, "2. Because the verdict of the jury is contrary to law." The assignment of errors we copy: "1. The court erred in overruling the appellant's motion for a new trial. "2. The record fails to show that the indictment in said cause was returned into open court, of the proper court and county." There is nothing in the second assignment of error. The record shows that the grand jury of the county, on the 21st day of March, being the fourth day of the March term, 1878, of the Huntington Circuit Court, while the court was in open session, returned the indictment in this case, and that, immediately upon its return, the defendant was arraigned upon it, pleaded not guilty, and was tried and convicted. The first error is well assigned. The motion for a new trial should have been sustained. On the trial upon this indictment, it was necessary to a conviction, that it should be proved that the defendant sold liquor, illegally, to John Hairholser. State, 48 Ind. 579. Wreidt v. The Gilchrist v. Gough et al. If there was proof of such sale to any particular person, in this case, that person was John Hairholts. These names are not idem sonans, and do not indicate the same person. Bicknell Crim. Prac. 152; Mitchell v. The State, ante, p. 276. It is claimed that the sale was for medicinal purposes. On another trial, this will present a question for the jury. Donnell v. The State, 2 Ind. 658; Leppert v. The State, 7 Ind. 300; Thomasson v. The State, 15 Ind. 449; Jakes v. The State, 42 Ind. 473. The judgment is reversed, and the cause is remanded for further proceedings in accordance with this opinion. GILCHRIST V. GOUGH ET AL. MORTGAGE.-Purchaser for Valuable Consideration.- Pre-existing Debt.Extension of Payment. - One who obtains the execution of a mortgage to secure the payment of a pre-existing debt, in consideration of an extension thereby made of the time of payment, is a purchaser for a valuable consideration. SAME-Mortgage Recorded after Time.-Notice.-Though a mortgage be SAME.-Entry Book.-Case Overruled.-The entry book kept by the re- SAME.-Index. The index of mortgages and other conveyances, kept by Gilchrist v. Gough et al. SAME.-Mistake of Record, as to Amount of Debt.-Priorities.-A mortgage on real estate was so entered in the entry book, and also indexed, as to show the true amount of the mortgage debt, but by a mistake in recording, made without the knowledge of the mortgagee, the record showed the amount of such debt to be much less than it really was. Sub sequently the same land was mortgaged to one who had no actual knowledge of the existence of the prior mortgage. Held, in an action for the foreclosure of the first mortgage, against the mortgagee of the second mortgage, that, except as to the amount of the first mortgage debt shown by the record, the second mortgage has priority over the first. From the Henry Circuit Court. J. C. McIntosh, M. E. Forkner and E. H. Bundy, for appellant. J. Brown, S. H. Buskirk and J. W. Nichol, for appellees. Howk, C. J.-This was a suit by the appellant, as plaintiff, against the appellees, as defendants, for the foreclosure of a certain mortgage, and the recovery of the mortgage debt. In his complaint, the appellant alleged, in substance, that, on the 1st day of March, 1869, the appellees Charles T. Gough and Mary C. Gough, his wife, conveyed, mortgaged and warranted unto the appellant certain real estate, particularly described, in Henry county, Indiana, containing one hundred and ten acres; that the said mortgage was duly recorded in the recorder's office of said Henry county, on the 15th day of May, 1871, and was filed with and made part of said complaint; that the mortgage was given to secure the payment of a debt evidenced by a note of even date therewith, for five thousand dollars, executed by the appellee Charles T. Gough, and payable to the appellant three years after the date thereof, with interest at the rate of nine per centum per annum; that the said note and mortgage were executed to the appellant in consideration of five thousand dollars on that day loaned by him to said Charles T. Gough, and for no other consideration; that, on VOL. LXIII.—37 Gilchrist v. Gough et al. the 1st day of March, 1872, the appellee Charles T. Gough executed to the appellant his certain other note of that date, whereby he promised to pay the appellant the sum of one thousand four hundred and seventy-five dollars, three months after date, with interest at the rate of nine per cent. per annum until paid, both of which said notes were filed with and made parts of said complaint; that the last described note was given for the accrued interest on the note first described, and for no other or different consideration, and was but another evidence of a part of the debt evidenced by said first described note and secured by said mortgage; that there was due the appellant, on the said debt secured by said mortgage and evidenced by said notes, the sum of eight thousand dollars, which was wholly unpaid; that, on the 14th day of February, 1874, the said Charles T. Gough and his said wife conveyed and mortgaged the said property to the appellee Jacob V. Hoffman, to secure a debt evidenced by a note of that date, due in twelve months from the date thereof, payable to the order of said Hoffman, for three thousand five hundred dollars, with ten per cent. interest from date; that, on the 10th day of July, 1874, the said Gough and his said wife again conveyed and mortgaged the said real estate to the said Hoffman, to secure a debt evidenced by a note of that date, for one thousand dollars, executed by said Charles T. Gough, and payable to said Hoffman in one year after the date thereof; and that, on the day of March, 1875, the said Charles T. Gough made and executed to the appellees Elisha Clift and John Kepler a general assignment of all his property for the benefit of his creditors, in which assignment the said mortgaged real estate was assigned and transferred by him to them, for the benefit of his creditors; that, at the time said assignment was made, the said Charles T. Gough was in embarrassed and failing circumstances, and that the said Clift and Kepler have qualified, as re Gilchrist v. Gough et al. quired by law, and entered upon the discharge of the duties of their trust as such assignees. Wherefore, etc. All the defendants to the action, except said Jacob V. Hoffman, made default. Hoffman appeared, and answered in three paragraphs, the first setting up affirmative defences to the appellant's cause of action, the third paragraph of said answer being in the nature of a counter-claim, or ` cross complaint as it is called, against the appellant and the codefendants of said Hoffman, and the second paragraph being a general denial. The appellant demurred to the first and third paragraphs of the auswer, upon the ground, as to each paragraph, that it did not state facts sufficient to constitute a defence to the appellant's cause of action. The appellant also demurred to said Hoffman's cross complaint, upon the ground that it did not state facts sufficient to constitute a cause of action against the appellant. Which demurrers were severally overruled as to the first and third paragraphs of answer, and as to said Hoffman's cross complaint, to which decisions of the court the appellant excepted. The appellant replied, in four paragraphs, to the first and third paragraphs of the answer of the appellee Hoffman, and to his cross complaint. The first, third and fourth of these replies set up affirmative matters, and to each of these replies the appellee Hoffman demurred for the alleged insufficiency of the facts therein to constitute a reply to the said paragraphs of his answer and his cross complaint, which demurrers were sustained by the court as to the first and fourth replies, and to these decisions the appellant excepted. The second reply was a general denial. The demurrer of the appellee Hoffman to the third reply and answer to the cross complaint was overruled, and said Hoffman then replied thereto by a general denial. |
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