Diggs v. Way

Black, J. — It is assigned as error that the complaint did not state facts sufficient to constitute' a cause of action. The complaint contained two paragraphs. The court in its special finding and judgment treated the case as an action against the appellants for the recovery of damages for the wrongful conversion to their own use of a certain stock of merchandise. The appellants were shown in the second paragraph of complaint to have obtained possession of the goods through purchase from others,, not parties, who had bought them and taken possession under a sale on execution against an owner of the goods, one Lindsey L. Ludwick, by whom they had been mortgaged to the appellees, before the issuing of the execution, to secure certain indebtedness of the mortgagor to the mortgagees. A copy of the chattel mortgage was filed with the original complaint, and was referred to in each paragraph as a part thereof marked as an exhibit; and it was alleged in each paragraph that the mortgage was duly recorded within ten days after its execution in the chattel mortgage record, the volume and page being specified, of Randolph county, Indiana, “the county in which said mortgaged property was situated at the time of the execution of said chattel mortgage.” In the first paragraph of the complaint no mention was made of the sale on execution, but it was alleged that, subsequent to the execution and recording of the mortgage, the goods passed from the possession of said Ludwick into the possession of the appellants, under a pretended claim of ownership therein. We state no more of the contents of the lengthy pleadings than we deem proper for the decision of the particular question jnesented in argument before us. The case having .been tried by the court below as an action in tort, the complaint is to be treated not as a complaint on the mortgage, and the mortgage can not be regarded as the foundation of the action within the meaning of the statute,section 365 Burns 1894, section 362 Horner 1897, which provides: “When any pleading is founded on [619] any written instrument or on an account, the original, or a copy thereof, must be filed, with the pleading. * * * Such copy of a written instrument, when not copied in the pleadings, shall be taken as a part of the record.” It is well settled by repeated decisions that an improper exhibit will not be considered in examining a pleading for the purpose of determining the question as to the sufficiency of the facts stated. Such exhibit can not supply any averment omitted in the pleading. Knight v. Flatrock, etc., Co., 45 Ind. 134; Wilson v. Vance, 55 Ind. 584; Whipple v. Shewalter, 91 Ind. 114; Conwell v. Conwell, 100 Ind. 437; Huseman v. Sims, 104 Ind. 317. However necessary a written instrument may be as evidence in support of a plaintiff’s suit, it is not a proper exhibit if the action be not founded on the instrument. Treadway v. Cobb, 18 Ind. 36; Rausch v. Trustees, etc., 107 Ind. 1; Barrett v. Johnson, 2 Ind. App. 25. In Ross v. Menefee, 125 Ind. 432, it was held that a complaint for the wrongful conversion of. personal property, the plaintiff’s right in the property being shown by the complaint to be derived by a mortgage, was not based on the mortgage, and that the mortgage could not be made a part of the complaint by filing a copy thereof. It has been suggested by counsel for the appellants that a copy of the chattel mortgage mentioned in the complaint, which was filed with the original complaint, should not be treated as filed with the amended complaint. In view of what has preceded, we need not further notice this suggestion, as we do not look to the contents of the exhibit. When the facts in this case* arose, and when the cause was pending below, it was provided by statute (section 4913 E. S. 1881, section 6638 Bums 1894), that nb 'assignment of goods by way of mortgage- shall be valid against any other person than the parties thereto, where such goods are not delivered to the mortgagee or assignee, and retained by him, unless such assignment or mortgage shall be acknowledged, as provided in case of deeds of conveyance, and recorded [620] in tlie recorder’s office of the county where the mortgagor .resides, within ten days after the execution thereof. The right of the appellees to maintain the action for conversion depended upon the validity of their pretended mortgage lien. It is not shown directly or inferentially in the complaint that the county in which the mortgage was recorded was the county in ’ which the mortgagor resided. The appellants were persons against whom, by the plain terms of the statute, the mortgage was not valid unless recorded in the recorder’s office of the county where the mortgagor resided within ten days after its execution. It was material and essential to the cause of action against the appellants to show the existence of all statutory requisites of the validity of the mortgage on which the right of the appellees depended. The allegation of actual notice to the appellants or their grantor, or both, of the existence of the mortgage, could not render the complaint sufficient without showing that the statutory requisites of validity had been complied with. See Scarry v. Bennett, 2 Ind. App. 167; Morris v. Ellis, 16 Ind. App. 679; State, ex rel., v. Griffin, 16 Ind. App. 555. For the omission of an averment concerning the residence of the mortgagor, we must hold the complaint insufficient as a complaint for the conversion of the mortgaged goods. Whether the complaint was otherwise deficient we do not decide. The judgment is reversed.