Eggleston v. Barnes

Hanna, J. Barnes, as executor of Stockwell, brought a suit upon three promissory notes, and to foreclose a mortgage given to secure the payment thereof. The notes were made by Eggleston to Stockwell, Ca/rpenter, and Ingle; and the mortgage was made to Ingle, for the use of himself, Carpenter, and Stockwell. It is averred that Carpenter and Ingle, upon some agreement not known to the executor, transferred the notes and mortgage to Stockwell, by assignment not in wilting, and by delivery. Eggleston, Carpenter, and Ingle, are made defendants. There was a judgment by default, and a foreclosure of the equity of redemption, as to all the defendants. It is now insisted that the judgment is erroneous, because there is nothing upon the record showing the assignment, and because the equity of redemption of Carpenter and Ingle was foreclosed. As to the first point, an equitable assignment is shown, and the statute authorized the proceeding in the form adopted. The default admitted the truth of the averments, as to the assignment and delivery, &c. Clearwater v. Rose, 1 Blackf. 138.—8 Ind. R. 451.—2 R. S. p. 28. As to the other point, Ingle and Carpenter had no equity of redemption to foreclose; and as to them, the entry is a mere misprision of the clerk, without injury. G. Baker and O. H. Smith, for the appellants. A. L. Robinson, for the appellee. Per Gwriam. The judgment is affirmed with 5 per cent. damages and costs.