Bennett v. Mattingly

Niblack, J. On the 28th day of October, 1881, Scott Dingman and Matilda H. Dingman, his wife, were the owners by entireties of lot No. five (5) in what is known as East Plymouth, in the city of Plymouth, in this State. On that day they jointly executed to Charles T. Mattingly, the appellee in this appeal, two promissory notes for $300 each, payable in one and two years respectively, with eight per cent, interest from date, to secure the payment of what purported to be a loan to them of the sum of $600, and, on the same day, to further secure the payment of said sums of money, they, the said Scott Dingman and wife, conveyed to the said Charles T. Mattingly, as, and in the form of, a mortgage, the lot above described. This mortgage was recorded within the time limited by the statute. On the 30th day of January, 1885, the said Scott Ding-man and wife, upon what was claimed to be a full consideration paid to them, sold and by warranty deed conveyed the lot so mortgaged to Joseph H. Bennett and Joseph Collins, the appellants herein. On the 14th day of February, 1885, Mattingly commenced this suit against Bennett and Collins to foreclose the mortgage executed to him as above stated. In his complaint Mattingly requested only a finding of the amount due upon the notes, and a decree for the sale of the mortgaged property to pay the amount which might be found to be so due. Bennett and Collins demurred to the complaint: First. For want of sufficient facts. Secondly. For defect of parties in failing to make Ding-man and wife parties defendants. But their demurrer was overruled. They then filed a petition, alleging, amongst other things, that Dingman and wife had an interest in the subject-matter of the action, by reason of having conveyed to them, the said Bennett and Collins, the mortgaged lands by warranty deed; that the notes and mortgage sued on were void as to Mrs. Dingman, and that hence she had a good defence to the action ; that the mort [199] .gage being void as to Mrs. Dingman, it was, under the circumstances, void as to Dingman, and that, in consequence, her in like manner, had a good defence, and praying that Ding-man and wife might be made co-parties defendant. The -circuit court, nevertheless, overruled the prayer of the petition, and exceptions were reserved. Bennett and Collins then answered in two paragraphs: First. In denial. Second. That Mrs. Dingman was, at the time of the execution of the notes and mortgage, and still was, the wifg of the said Scott Dingman, which Mattingly well knew; that the said Scott Dingman caused the notes and mortgage to be •executed to secure the payment of money borrowed by him, .and for no other consideration ; that Mrs. Dingman executed the notes and mortgage only as surety for the said Scott Ding-man, then so being her husband, which Mattingly, also, well knew7. A demurrer was sustained to this second paragraph of the ■answer, and the circuit court made a finding of the amount •due upon the notes, and decreed a foreclosure of the mortgage and a sale of the mortgaged property. An argument is submitted against the sufficiency of the -complaint upon demurrer, upon the ground that it showed Mrs. Dingman to have been a married woman at the time she executed the notes and mortgage, and did not aver a state of facts creating a liability on her part, notwithstanding the disabilities imposed by her coverture. This would, at one time, have been a valid objection to the complaint, but the law in that respect has been materially •changed by the Revised Statutes of 1881. Coverture is no longer a legal disability in this State except in some special •cases, and, hence, upon the facts averred, no disability on the part of Mrs. Dingman could have been fairly presumed. Rosa v. Prather, 103 Ind. 191. The complaint was, consequently, sufficient upon demurrer. It is claimed that upon the facts disclosed by the complaint [200] and the petition of Bennett and Collins, Dingman and wife were necessary parties to a complete determination of all the matters in controversy in this suit, and that, for that reason, the circuit court erred in refusing to allow them to be made parties in accordance with the prayer of the petition, citing R. S. 1881, section 272. It is a well settled rule of practice, that where a mortgagorlias conveyed away his equity of redemption in the mortgaged lands; he is not a necessary party to a suit to foreclose the-mortgage where no personal judgment is demanded against, him. Shaw v. Hoadley, 8 Blackf. 165; Davis v. Hardy, 76 Ind. 272; Petry v. Ambrosher, 100 Ind. 510. It is also a well accepted rule of practice, that a new party defendant ought not to be made merely for the purpose of settling some matter between him and the original defendant, in which the plaintiff has no interest. Frear v. Bryan, 12. Ind. 343; Scobey v. Finton, 39 Ind. 275. In view of these rules of practice, the circuit court did not err in not permitting Dingman and wife to be made co-parties, defendant. Section 5119, R. S. 1881, provides that “A married woman shall not enter into any contract of suretyship, whether as. indorser, guarantor, or in any other manner; and such contract, as to her, shall be’ void.” This section imposes, pro tanto, a disability upon a married woman, and enables her to plead her coverture as a defence to an action on'a contract of suretyship entered into in contravention of its provisions. But it does not follow that such a defence is one* of which third persons may collaterally avail themselves. It is a general rule that coverture, like infancy, is a personal defence, and hence a defence which third parties, can not make for their own benefit. 1 Wait Actions and Defences, 158; Ætna Ins. Co. v. Baker, 71 Ind. 102. The alleged suretyship of Mrs. Dingman, set up in the-second paragraph of the answer in this cause, was pleaded as a defence to a lien against the mortgaged land in which Ben [201] nett and Collins had become the owners of the equity of redemption, and hence was pleaded for the direct benefit of Bennett and Collins, and not, in legal contemplation, for the benefit of Mrs. Dingman. Consequently, the general rule, last above announced, is applicable to the defence of coverture, set up in this case, and as a necessary inference the demurrer to the second paragraph of the answer was properly sustained. Filed Feb. 15, 1887. What we have said practically disposes of all the questions reserved upon the proceedings below, and leads to the affirmance of the judgment appealed from. The judgment is affirmed with costs.