The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-06-30
THE RECORD OF THE COURTS.

Hon. Byron X. Elliot, Chief Justice.


UNDERWRITING NEUTRALITY-SUSPICIOUS.
1126I. Robert AIalott VS.. Geo B. Golf Grant
C. C.
Howk, J,-Where indeInuifying mortgage con
tans express agreement of the morgageors to pay
the debt secured upon their failure to pay such debt
when due the mortgage may without having hrst
paid the debt, part thereof maintain an action
for the foreclosure of the mortgage and may recover
damages actual compensation for the total probable
loss. az Ind, 81 10 i'd, II, POS; Sc i'd, $50; ~
i'd, "a The demurrer the complaint should have
been overrued. Judgment reversed.
NEUTRALITY-SUSPICIOUS. OF SURETY
11451. James Martin ct al vs.. Robert E. Orr ct al.
Fountain c. c.
Hammond J.-Proceeding by appellees to revive
judgment against appellants. The ayerments OF the
complaint that the judgment rendered IN favor OF
person whom the guardian of one of appellants, and
the guardian of another person since deceased whose
estate has since been settled. and OF whom the APP
pellees the only heirs, and that they are
the owners of the Judgment, sufficiently show
their title to it to make the complaint good de-
Mere uncertainty in pleading Is not
reached by demurrer $50 Ind, 25s? Each para
graph of Martins alleged that he was surety
on the note on which Judgment was rendered. that ne
gave the creditor notice as required by the statute ana
that the creditor after prosecuting his action to Judg
ment did not take out an execution for httywo days
thereafter This delay was unreasonable 70 nlki,
127 Ind, 500 80 i'd l69; 81 i'd, $500 The fact
that Martins suretyship not iudicially deter
mined for several years the rendition of the judg
ment did the delay in taking out execution
the fact of the suretyskp being known to tie Iudg
ment plaintiff The ncSce given by Martin could not
delay in taking out execution did not discharge nm
q Ind. l.. NJ, 414.) Judgment affirmed as to Coeh
ran and reversed as to Martin.
LAND BOUGHT WITH wIFEs MONEY PRIOR TO
1852.
9355 Sarah Radcliff vs. William Radford. Nor
Bicknen c. Con petition for rehearing Prior
to 1852 wife might have money of her not
withstanding her marriage, and although, in the
absence of evidence, the presumption would be that
money held by the wife before marriage vested in
the husband by marriage this presumption could be
rebutted by evidence showing that the husband
always admitted that the money hers and that
the land with which it was pure ased was also hers
although the title thereto taken in his name. In
such a case, trust will arise in equity in favor OF
the wife. q Blkf.. 1873 440; i'd, $500 Petition
overruled.
MoRTGAGE-DEFAULT-oP
9205. James Buchanan Berkshire Life Insur-
ance Company. Marion S. c.
collars, Jon petition for rehearing. Appellant
insists that the holding that no notice to
appellant of the exercise of appellee's op-
ton before bringing suit was necessary, was
not well considered. His Honor reviews the authori-
ties at length and concludes that where the mortgage
contains no stipulation for notice of the exercise OF
the option the mortgageor is bound to know that by
his default the mortgage has the right to treat the
whole due and colectble, and that nothing is
required of him except the exercise of his will
t56 ILL.,. 49, 80 i'd, ST. 43 Mich, 2OS) Petition
overruled.
FRAUDULENT CONVEYANCE - REcoNVEYANcE-
NOTES GIVEN WITHOUT CoNsIDERATIoN-Es-
TOPPED.
10095. Second National Bank etc. Benz
Brady ct al. Tippecanoe S. c.
Elliott, G. i'm 1862 Brady made fraudulent
conveyance of property to Tinker for the purpose of
defrauding appellant to whom he was then indebted
In 1875 said debt having, in the meantime been set
tied, Tinker reconveyed the property to Brady, in
pursuance of the agreement made in 1862. and Brady
to keep up appearance of honesty executed several
notes to Tinker, under agreement that they
should, in short time be returned to Brady.
These notes Tinker assigned to appellant.
in payment of debt owing by him and his brother.
This action by Brady to compel the surrender
and cancellation of said and the mortgage
ing them. Held Whatever rights may have been
vested in Tinker by the conveyance of 1862 were
Invested by the reconveyance to Brady in 1879 and
this made in performance of the agreement of
1862, the conveyance to Brady not the consider
alton for the notes executed by him Nor is it found
that there any other consideration for the notes
The reconveyance TO Brady not fraudulent one.
As between Tinker and Brady there consd-
Grafton for the notes, and they not payable i'll
bank, they subject to the defense of want of
consideration in the hands of the assignee unless the
maker has done some act which estops him from max
ing the defense If the finding showed that the bank
released Tinker and his brother from their indebted
ness it would be protected u bona de holder 1913
Ind, 800; 63 i'd, $40; 65 i'd, 1907 But it
does not show this. But even this fact
would not estop Brady. The mere execution
from pleading want of consideration Such notes
taken by the assignee at his risk, knowing that,
by positive law they subject to defenses existing
in favor of the maker before notice of assignment.
"a Pick, 400 The act of Tinker in reconveyng
and that of Brady in accepting the land were not
fraudulent. wait Fraud Con, section 39S.)
judgment affirmed