Gafney v. Reeves

Perkins, J. Bill to foreclose a mortgage. It alleges that one Abraham Kinsey owned the mortgaged property, and sold it to Michael Gafney, giving a bond for a deed, and that he had received the purchase-money. It further [72] alleges that afterwards, in 1849, Gafney and'wife mortgaged said property to Reeves to secure the payment of a named sum of money, and that subsequently he executed a junior mortgage on the same property to one Storms, &c. It alleges that the money due to Reeves has not been paid, &c., makes Kinsey, Gafney and wife, and Storms, parties, and prays a foreclosure and sale, and that Kinsey be estopped to set up any right, &c. It avers that no suit has been instituted at law. Storms made default. Kinsey and Gafney and wife demurred to the bill, the demurrer was sustained, and, they refusing to answer further, the cause, says the record, was set down for final hearing, “and the Court having heard the same,” after due deliberation, find, &c. The mortgage and note were made a part of the bill by incorporation. The Court decreed that the defendants, by, &c., pay the amount found due to Reeves on his mortgage, and, in default, &c., that the property be sold to make the sum; that Reeves be first paid, Storms next, that Gafney pay the costs, &c., and that Kinsey be barred, &c. The decree is against Gafney's wife as well as the other defendants. It is objected to this decree that it creates a personal liability on the part of Kinsey and Storms to pay the debt to Reeves. Not so. The whole proceeding shows plainly enough the relative situation of the several parties; and the legal effect of the decree is to give Kinsey and Storms the right to pay Reeves and be subrogated to his rights against Gafney and the mortgaged land. It gives them the right to redeem, and, in default of redemption, orders the property to be sold, &c. It is objected that the decree is against Gafney's wife without proof. It is insisted that in chancery cases all the evidence given must appear in the record without a bill of exceptions. Such is the rule of chancery practice in England and America. Such has been the rule in this Court. Work et al. v. Doyle et al., 3 Ind. 436.—Comley et ux. v. Hendricks, 8 Blackf. 189.—Ward et al. v. Kelley, 1 Ind. 101, and cases [73] cited. The rule grew out of the fact that in chancery evidence is mostly by depositions, naturally copied into the record. In the case of a foreclosure of a mortgage, it is not often that the necessity arises for any proof except of the exhibits. No such necessity arose in the present case; and exhibits may be proved by parol. This has been long settled in England as well as in America. O. P. Mortem and N. H. Johnson, for the appellants. J B. Julian, for the appellee. Now, it is mere matter of practice how that parol evidence shall be placed upon the record, and being so, it might be regulated at any time by a rule of Court, or by a decision, which, of course, would constitute a rule; and this Court, by its later decisions, has declared that such evidence may be placed upon record by a bill of exceptions; and that it need not necessarily appear without a bill. English v. Roche, ante, p. 62, and case cited. This being the case, where it is not so incorporated, it will be presumed to have been given, but not made a part of the record, unless the contrary be shown by the record. Hence, in this ease, it will be presumed the proof was made. It is said the bill does not show that Kinsey had been paid his purchase-money. We think it does. It is urged that it was error to pay Reeves in preference to Storms. It was not, because the mortgage of Reeves was the oldest, and neither appears to have been recorded. Per Curiam. The decree is affirmed, with 5 per cent, damages and costs.