Rogers v. Place

Gregory, C. J. Place sued Rodgers in the court below on two notes and a mortgage. The notes are dated June 11,1864, and are for $200 each, payable to the plaintiff, and due in ten and twenty-two months, respectively. The mortgage is to the plaintiff, to secure these notes. The defendant answered in three paragraphs. 1. The general denial. 2. That he bought of Edward II. Learning, through James McConnell, as agent of Learning, the land described in the mortgage, for $800. That by direction of McConnell, as agent of Learning, he paid $400 of the'price of the land to one W. Knogenberger; that he executed the notes and mortgage to Learning for the balance of the purchase money; that at the time the notes and mortgage were signed and delivered to Learning, he did not know that the plaintiff’s name was in either of the notes or in the mortgage, but he supposed and believed that the name of Learning was in each of them, as payee and mortgagee; that Learning had at the time no title to the land, except what was derived through a sale for taxes, and that Learning agreed with defendant to convey it to him by deed, and also agreed that a quit claim deed should be made therefor by one Nelson, the owner thereof, to the defendant, and that Learning executed to defendant a writing to that effect, which is as follows: “ It is hereby agreed by and between E. II. Learning and Jonathan P. Rodgers, that a certain quit claim deed that is coming from Isaac Gr. Nelson to me, said Learning, for the northwest quarter of the southwest quarter of section thirty-two, town 35 north, range eight east ” (the land described in the mortgage), “ shall be made to the said Jonathan P. Rodgers. Witness my hand, this 11th day of June, 1864.” [579] (Sig’d) “E. H Learning, by James McConnell, agent;” that Learning delivered to defendant a deed for the land; that the only consideration for the $400 paid, and the notes and mortgage, was said deed and written contract; that no deed has been made to him from Nelson, although a reasonable time therefor has elapsed; that the title to be conveyed to him by the quit claim deed from Nelson is of greater value than the amount of the notes and mortgage. Wherefore defendant saith that the consideration of the notes and mortgage has wholly failed. 3. That the consideration of the notes and mortgage has wholly failed; that defendant paid to F. H. Learning $400, and executed to him the notes and mortgage, as and for the price of forty acres of land; that Learning executed to defendant a deed for the land, and by his agreement in writing, set forth above, agreed that Isaac G. Nelson, the owner of the land, should, within a reasonable time, execute a quit claim deed therefor to defendant; that the deed so delivered to him, and the written contract,’were the sole consideration for the $400, and the notes and mortgage; that defendant executed the notes and mortgage to Learning, and not to the plaintiff) and that no deed has been delivered to defendant from Nelson ; that the deed to be delivered from Nelson was and is of greater value than the amount of the notes and mortgage. The court below sustained separate demurrers to the second and third paragraphs of the answer, and this is assigned for error in this court. The mortgage, as well as the notes, were made to the appellee. The appellant is estopped thereby from saying that they were made to Learning and not to Place. , In French et al. v. Blanchard, 16 Ind. 143, the court held,in a suit for the foreclosure of a mortgage, that the defendant was estopped from setting up that the notes and mortgage, though executed to the plaintiff alone, were given for goods purchased of a mercantile firm, of which plaintiff was a member; that the other copartners had never assigned their interest in the debt to plaintiff, and that the real, beneficial interest therein was- in the firm. ■ [580] The allegation in the second paragraph, that the appellant did not know that the plaintiff’s name was in either of the notes, or in the mortgage, bat that he supposed and believed that the name of Learning was in each of them, as payee and mortgagee, is not sufficient to take the case out of the rule. There is no allegation of fraud or mistake. Justice Blackstone, in speaking of the reading of a deed, which is alike applicable to all written instruments, states the rule thus: “ This is necessary, wherever any of the parties desire it; and if it be not done on his request, the deed is void as to him. If he can, he' should read it himself; if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is mis-recited.” 2 Black. Com. 304. In the absence of any device to put the party off his guard, an omission to read the instrument by one having the capacity to do so, will place him beyond the protection of the law; and the maxim, “ vigilantibus, non dormientibus, jura subveniunt,” will apply to him with all its force. Justice Sullivan, in Sceright v. Fletcher, 6 Blackf. 380, says: “ It does not appear that the defendant was deceived by the representations made to him, or if he was, it is manifest that it was the consequence of his own folly. If the defendant were an illiterate man, and the bond had been misread to him, he not being able to detect the imposition, the case would have been different. But it appears that he signed the bond without reading it himself, or hearing it read, and, with all the means of knowing the truth in' his power, reposed a blind confidence in representations not calculated to deceive a man of ordinary prudence and circumspection. In such a case, the law affords no relief.” See,also, May v. Johnson et al. 3 Ind. 449. Both paragraphs .profess to answer the whole cause of action. An allegation of an entire want of title in the vendor is no defense to the foreclosure of the mortgage given to secure the purchase money. Hubbard et ux. v. Chaffd, 14 Ind. 601. And if these paragraphs ai’e to be regarded" as making such" ah averment, then they are bad, [581] for the reason that they are pleaded in bar of the entire action, and not as a defense to a personal judgment on the notes. A pleading is taken most strongly against the pleader, and the legal presumption is that possession follows a purchase, in the absence of anything showing the contrary. In the light of these rules, the paragraphs in question amount to this: That Rodgers purchased of Learning the land embraced in the mortgage, and took from him a deed therefor, with full covenants, the possession following the purchase. That Learning held the land by a defective tax title, having, however, the equitable right to a conveyance in fee therefor; by a quit-claim deed from one Nelson, the original owner of the land. That in addition to.the deed, Learning agreed with Rodgers that the quit-claim deed coming to the former should be made to the latter, and that it' had not been done. This agreement was an assignment to Rodgers from Learning of th'e equitable right of the latter to the quit-claim deed from Nelson. Rodgers, then, is in possession of the land, under a deed with full covenants from Learning, with the equitable right to a quit-claim deed from Nelson, the original owner. This equitable title can be given in evidence under the general denial in an action to recover the possession of the land. 2 G. & H., § 596, p. 283. Rodgers has the covenants of Learning, and he is also secure in his possession against any legal title which might have remained in Nelson after the tax sale. As Rodgers has the substance, it can hardly be said that the shadow was a condition precedent to the right of Place to recover the amount secured by the notes and mortgage. It will be seen that there is no averment in the answer that Place had any knowledge of or connection whatever with the consideration passing to Rodgers from Learning. The legal presumption, in the absence of any allegation to the contrary, is that. Place parted with value for the notes made payable to him-. As against Place, the defense set up is not sufficient to bar [582] the action. The court below committed no error in susstaining the demurrers. A. Ellison, for appellant. A. A. Chapin and W. E. Higgins, for appellee. The judgment is affirmed, with costs.