Little v. Vance

Perkins, J. Complaint to foreclose a mortgage, the installments all being due. Answer, that there was a separate agreement in writing that the notes, payable on the face in cash, might be discharged, when they became due, in bonds of a certain railroad company. Demurrer to the answer sustained. Judgment for the plaintiff; and order that, on failure to pay, &c., so much of the mortgaged premises as might be necessary therefor be sold as lands are sold on execution, to make the judgment, &c. The demurrer was rightly sustained for two reasons— 1. The written agreement referred to in the answer, or a copy of it, was not filed with the answer. 2. The notes were payable in cash, and the written agreement gave a privilege to discharge them in railroad bonds. It will bear that construction as pleaded, and the ambiguity, if one exists, on account of the instrument not being filed or copied, must operate against the pleader. See, as to the election to pay. in bonds, Parks v. Marshall, 10 Ind. R. 20, cited in Williams v. Jones, 12 id. 561. The form of the judgment was right. R. L. Walpole and K. Ferguson, for the appellants. J. L. Ketcham and I. Coffin, for the appellee. Per Curiam. The judgment is affirmed with 3 per cent, damages and costs.