The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-03-26
THE COURT RECORD.
Supreme COurt-March 25.
Hon. Geo. V. Howk, Chief Justice.
APPEAL-wE1GHT OF EVIDENCE.


APPEAL-wEIGHT OF EVIDENCE.
11196. John Piersol VS.. VIM D. Hudson. Boone
G. c.
Hammond, J.-Where the plaintiffs evidence clear
awarded by the jury, this court appeal will not
verse the judgment because this evidence direct
y contradcted by the evidence for the defendant.
Judgment affirmed.
ACKNOWLEDGEMENTS
1895 Sarah H. CARRIER VS.. The State Clinton
C. c..
Niblack, Jan indictment for larceny which
charges the felonous stealing and carrying away of
divers goods and ehattes of one Gotleb Gatz sufi-
GENTLY shows whose property it was that stolen
IA Ind. 2S5; Moore's Or Law section 1851 The
objection that instruction did not contain much
as it might have included is not ordinarily availa-
BILE objection to the Supreme Court. In such cases it
is the duty of the complaining party to ask nstruc
ton covering the omitted point and in the case of
fusal to reserve his exceptions (65 Ind sos; so i'd
$50; 81 i'd, 49, Judgment affirmed.
wILL-LIFE EsTATE-PowER OF DISPOSITION.
9039 Charles L. Downie VS.. Charles BuennageL
Howk, G. jim 1870 Stevens devised to his
mother, Mrs. Downie certain real estate Ito hold and
enjoy the same during her life with full power to sell
the same and that all deeds made by her should pass
title in fee TO the purchaser After Stevenss death
Mrs. Dqwnie appointed. by deed of record, Thomas
Cottrsi, her attorney. to sell and convey any and all
said real estate and Cottre sold and conveyed the
land in dispute to the appellee. Afterwards Mrs
Downe herself executed deed ratifying and confirm
ing all the deeds thus executed by CottreE Appel
liant a residuary devisee claimed the land sold to
appellee II is clear that the testator intended to
fer upon his mother the absolute and unlimited power
to dispose of the devised property, and that ii
Mrs. Downies intention to confer title in fee upon
the appellee. The deed made through Cottrell was
sufficient for this purpose without the subsequent
made by her 49, Ind. 240; South South. 81
Ind But the deed made by her material and rel
evant, as tending to show what her intention was
Judgment affirmed.
OBSERVATION-DISCLOSURES AssIGNMENT-sUBsE-
QUEsT NEUTRALITY-SUSPICIOUS..
1894. VIM. +. Reeves VS.. John \. Hayes. Rush
c. c..
Elliott J.-Hayes executed to Reeves. guardian. a
mortgage the payment of three for the
unpaid purchase money of land sold to him by Reeves
dated Sept. l, 1878. Afterwards HAYES sold the
land to Copeland who gave nine notes for the p1r.
chase money and also exc tied mortgage the
land Prior TO Nov 6 1872 No 4 of the notes. was
assigned to the First National Bank of New Castle
and on the day named Hayes assigned TO Reeves the
notes in order of priority Nos. and in exchange
for the first notes executed by him Reeves, and
also delivered to him the Copeland mortgage On
June Z 1875 Hayes executed release of the Cope
land mortgage. which was recorded and afterwards
| Wilson loaned Copeland $1,000 and took secuHi
| ty mortgage on said land. The court below held
that Wilson lien superior to that of Reeves and
! the bank Prior to July 1877 there was no law
authorizing assignments ofmortgages to be recorded
so Ind. AL SIS i'd, 303 81 i'd, PSI; "A i'd 479)
Notice is never impaired by the recording of an
instrument which the law does not authorize
(23 Ind. 416 AZ id. PA; Story Eq.. sec. 4049
This being appellants could not have done moro
than they did and were not in fault for not having the
assignment of the mortgage to them recorded. (42 N
Y. 334) The eonestng parties being equal in equity
the first in order Of time must prevail II Pom. Ed
ABB The authority of the mortgagee to release
the mortgage terminates with the assignment Il
Jones Mort sec. S14 8 Bllf, 50; Kent Com. 1911
The assignment of negotiable note carries tho mort
gage security, and in the hands of bona fde holder
the security is protected to the same extent as the
note 69 Ind, 450; II i'd, S: 6 Wall. 27I; Dan
Neg. In, S34) As an assignment could not have
been legally recorded it would not have strengthened
appellant to have taken written assignment of
the mortgage. G. Cowen, 246) A second mortgagee
who finds record mortgage has notice Of It's ex
istence, and must ascertain whether the release was
executed by having authority in the absence of
any statute authorizing assignments to be recorded
Il Jones Mort, sec. S14; 10 Gray, 461 &c n. Y. Is;
81 Am. r., 274; 81 Ind, 27S; AZ i'd 81; 65 i'd
229.) 1t must be held that the purchaser
of a note secured by mortgage who cannot
give record notice of his rights is entitled to proee
tion against subsequent membranes. Judgment
reversed.
Nblack, j.. dissenting, holds that Reeves might
have taken assignment of the mortgage in d seps
rate instrument and that such an assignment might
have been lawfully recorded, and constituted notice
Also that under section 5, act of May 4. 1852 cen
corning the release mortgages it is only where the
discharge upon the record has been entered by some
person other than tho mortgaeee that the subsequent
purchaser is put upon his inquiry the authority
of the releaser Tones on Mort, sec. 957. Az
Thomas Mort, 142 l02 ILL.,, 14S; % Kan, 1879
When one purchases debt secured by mortgage. and
fails TO take assignment of the mortgage he must
be presumed to know that his interest in the mortgage
constitutes only secret equity. which may he wholly
lost or destroyed by the bad faith mistake or mis-
management of the mortgage.
collars j. also dissents in an elaborate opinion in
which the authorities very fully reviewed.