Jemison v. Walsh

Ray, C. J. Action upon a promissory note given by appellant, who was defendant below, to J. M. Sergant & Co., a firm composed of appellee, John M. Sergant, and David Stilly. It is averred that by an arrangement in adjusting the affairs of said firm, Sergant and Stilly before the commencement of the action sold their interest in the note to the appellee, and they were made defendants to answer as to their interest therein. The consideration of the note was the sale by "Walsh and Sergant of a town lot to the appellant, and a bond to convey the samo to him had been executed, and be bad been placed in possession,and before [169] bringing the suit a deed had been tendered and payment demanded. The deed was filed in court. Judgment was asked, and that the same be made a lien upon the lot sold. A demurrer was filed to the complaint, on the ground that the court had no jurisdiction of the subject matter of the action. This was overruled. It is insisted that an action to enforce a vendor’s lien involves the question of the title to real estate. A vendor’s lien is in the nature of an equitable mortgage, and as the Common Pleas Court has jurisdiction to enfore the contract when this equity is merged in a legal instrument, there can be no force in the objection, as it was held in Wolcott v. Wigton, 7 Ind. 44, that the title to real estate must be the principal thing to be determined, or the jurisdiction exists. The appellant filed an answer in several paragraphs. The first was a statutory denial. ' The second alleged,that at the time of the execution of the note, the firm of J. M. Sergant & Co. consisted of the persons stated in the complaint, together with the appellant, and that he had not disposed of his interest in the note. To this paragraph a demurrer was sustained. The fact stated, if it constituted any defense whatever, only went to the amount of the recovery. It would not be required that the appellant should unite with the appellee in an action against himself upon his own contract. The third paragraph alleged a mistake in drafting the note, that it should have been made payable one year after date, instead of one day after date, and that three days after its execution a new coirtract in writing was made by the parties, wherein the sale of the town lot and execution of the note are recited, and it is agreed that in consideration of a sale then made to said appellant of a stock of goods, that said appellant is first to pay two notes, executed at the date of the agreement to John M. Sergant & Co. for $2,099.18 each, one due six months and the other twelve months after date, and the same are to be paid off with the proceeds of said goods and merchandidse so sold by said J. M. Sergant & Co., and after the said notes are so paid, then the said [170] Jemisoii is to pay said. “Walsh and Sergant the said sum of six hundred and fourteen dollars and ninety-nine cents with accruing interest, and thereupon the said Walsh and Sergant agree to execute a deed for said property.- It is as- ■ signed as error that a demurrer was sustained to this paragraph. The effect of the contract was simply to require the payment of the two notes mentioned, in six and twelve months, and as much earlier as 'the proceeds resulting from the sale of the goods would enable the appellant to liquidate the debt. • It required the application of the money realized upon the goods to the discharge of the notes, but did not extend the time when they became due. The contract did, however, extend the time for the payment of the note in suit, one year from the date of the written contract, but as that time had expired before the commencement of the action, the appellant was in default upon that note. The fourth paragraph avers that when the note was executed the appellant was a member of the firm of J. M. Sergant & Co., the payees of the note, and that there had never been any final settlement of the accounts of said firm, and there were outstanding credits and liabilities of said firm, and until final settlement the extent of his liability cannot be ascertained. The demurrer to this^ paragraph was, perhaps, sustained in the hope that a forced compliance by appellant with his contract would enable a final and satisfactory adjustment of accounts to be made between the members of the late firm. This seems a reasonable view. There was a trial and a finding for the appellee. A judgment was rendered for the amount of the note and interest, and that the same be declared a lien upon the land. This judgment was not in proper form, as the facts stated in the complaint did not entitle the appellee to this relief, but as no exception was taken to the form of the judgment, we cannot even modify it upon appeal. If such exception had been reserved, the attention of the court below would have [171] been called to this error, and a correction perhaps had without an appeal. 8. P. OijUr and D. W. Iiowe, for appellant. 6r. M. Overstreet and A. B. Hunter, for appellee. The judgment is affirmed, with six per cent. • damages and costs.