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The Insurance Company of North America v. Martin et al.

was a defect of parties defendant, in that said McMannen, his wife, who joined him in said mortgage, and the Etna Life Insurance Company were proper and necessary parties defendant.

The ruling upon said demurrer is the only alleged error presented by the record and briefs. The first objection by the appellees to the sufficiency of the complaint is upon the question of a defect of parties.

It is settled that assignments of parts of a debt are valid. Groves v. Ruby, 24 Ind. 418; Wood v. Wallace, 24 Ind. 226; Lapping v. Duffy, 47 Ind. 51; Fordyce v. Nelson, 91 Ind. 447; Singleton v. O'Blenis, 125 Ind. 151. But, as it was strongly intimated in Lapping v. Duffy, supra, the right to make and enforce such assignments does not subject the debtor to a separate action by each assignee of a fraction of the debt for the collection of such fraction, and, in the several cases cited, the proposition was recognized that the several fraction holders have such an interest in the whole debt, and the remedy for its enforcement, that they may prosecute a joint action upon the obligation.

In Singleton v. O'Blenis, supra, it was held that under the code requiring that "every action must be prosecuted in the name of the real party in interest," the assignor was a proper party plaintiff. If a proper party because a party in interest, that interest would, under the provision of the code quoted, make him a necessary party. Here, however, it is alleged that the fraction of the debt retained by the Etna Insurance Company, upon the assignment of the part in suit, has been fully paid. It is a question, therefore, whether this allegation is sufficient to protect the debtor against a multiplicity of suits, or, at least, against one other suit by the Etna Insurance Company, for the seven hundred dollars and interest of the debt. But for this allegation, we have no doubt, the

The Insurance Company of North America v. Martin et al.

assignor would be a necessary party. Vance v. Evans, 11 W. Va. 342 (382); Currier v. Howard, 80 Mass. (14 Gray) 511.

Since it is alleged that the assignor has been fully paid, and this fact is admitted by the demurrer, and there being no question of the validity or extent of the interest claimed by the appellant, as between the assignor and the assignee, the appellant would but have brought into the case a party whose costs would have become chargeable to the appellant. The fact so alleged and admitted was a fact in which the appellant had no. interest further than to show that he was the absolute owner of the entire claim, and one of which the appellee possessed full and definite knowledge; it was a fact which, if doubt existed, the appellees could have determined by cross-bill, bringing the Etna Life Insurance Company into court. If the fact was uncontroverted and free from doubt, no good purpose could have been served by making that company a party. In other words, upon that allegation we can say that the Etna company was not a party in interest, and would, therefore, have been an unnecessary party. The alleged fact, however, was essential to appellant's recovery and the protection of appellees against a multiplicity of suits.

Another objection to the sufficiency of the complaint arises upon a difference in the description of the land as it is stated in the mortgage and the complaint, and as it is stated in the policy.

The complaint and the mortgage describe it as the east half of the southwest quarter of section 23, township 31, range 8, while in the policy it differs in the statement of the range as 31 and the township as 8.

If the exhibit of the policy, filed with the complaint, controls, as appellees urge, and if it must be held that the property mortgaged is not the same as that insured

The Insurance Company of North America v. Martin et al.

and destroyed, we are unable to observe how the status of the security for the debt would be different, but the allegation that the property described in the complaint was sold by McMannen and conveyed to Martin could not be held to include a conveyance of the property insured and destroyed so as to constitute an allegation of a breach of the condition in the policy against sales of the property without the consent of the appellant. In the absence of a breach of such condition, we are not advised of any support for the "claim that as to the mortgagor or owner, no liability existed" for the payment of such insurance, as provided in the "mortgage clause' numbered two. But if we concede the basis for an arbitrary claim of nonliability under the "mortgage clause," we are unable to observe how, under the allegations of the complaint, the interests of McMannen in the insurance. upon his house, the obligation to him by Martin to pay the mortgage debt, and the subrogation of the appellant to the securities of the Etna Life Insurance Company as against McMannen and Martin can be adjudicated and put at rest without making McMannen a party to the record.

Of the effect of the difference in descriptions, the appellant has not given us the benefit of any suggestion, and if we are incorrect in concluding that McMannen was a necessary party, the appellant should not complain. This conclusion-that McMannen should have been a party is reached, it should be borne in mind, upon the theory that the complaint alleges a mortgage security upon one property and an insurance upon another, which other property is presumed to have been destroyed as the property of McMannen. We do not decide that the error, if an error, in description could not have been corrected, nor that McMannen would have been a necessary party to a foreclosure of the mortgage upon the land

Thompson et al. v. The Connecticut Mutual Life Insurance Co. et al.

sold to Martin, but the basis of the appellant's claim is necessarily the insurance upon McMannen's property, to which McMannen is entitled either from the appellant or from Martin under his obligation to pay the mortgage debt.

A full determination of the right to enforce the appellant's claim renders it necessary to decide whether the insurance money was payable to the Etna Life Insurance Company only in the event of the inadequacy of the mortgage security, and as this is a question in which McMannen is directly interested, it seems to us to make clear the conclusion that he was a necessary party, and not having been made a party, we conclude that the question of this right is not before us, as it is primarily a question. between McMannen and the appellant, and but incidentally a question between Martin and the appellant. The judgment of the circuit court is affirmed.

Filed May 15, 1894; petition for a rehearing overruled Nov. 16, 1894.

No. 16,900.



139 325

142 447

139 325 149 192

150 496

139 325

154 403

155 651


APPEAL.-Notice to Coparties.-Fixing Penalty of Bond and Naming Sureties in Term, but Filing in Vacation.—Where at the time a judg- 139 325 ment is rendered an appeal is prayed and granted upon the filing 160. of a bond in a fixed sum, with named persons as sureties, within thirty days, and within that time, although the court is then in vacation, a bond is filed with the sureties and penalty as fixed by the court, the appeal so taken is a term time appeal, and no notice to the coparties not joining is necessary.

MORTGAGE.—Subrogation.-Foreclosure.—Payment.—Extinguishment.-— Where the holder of a prior mortgage brings suit to foreclose it, making a junior mortgagee a party, and a decree of foreclosure is

Thompson et al. v. The Connecticut Mutual Life Insurance Co. et al.

given, upon which there is a sale of the mortgaged land to the plaintiff, who takes a certificate of sale, and who, later, believing the junior mortgage cut out by the decree, accepts partial payment of his judgment and takes a new mortgage upon the land for the balance from an intervening purchaser, to whom he assigns the certificate of sale without any knowledge that such purchaser had agreed to pay off the incumbrances, the lien of the first mortgage is not extinguished by the execution of the second one for the same debt, but the former will be kept alive to protect its holder from the intervening lien. And, also, where a still later purchaser of the land, without knowledge of the intervening mortgage, applies for and secures a loan thereon from a third person, who likewise is ignorant of such mortgage and who believes that the second mortgage executed to the senior incumbrancer is the only lien upon the land, and a part of the loan so secured is used in paying off such lien, such last mortgagee is entitled to be subrogated to the rights of the holder of such lien to the extent of the money paid thereon out of the loan made by him, as against the intervening mortgagee and the persons succeeding to his rights with knowledge, and as to so much he is entitled to a first lien.

SPECIAL FINDINGS-Power of Court to Amend.-Cases Modified.—A trial judge may, in all cases, amend his special findings of facts and conclusions of law at any time before final judgment and during the period within which a bill of exceptions containing the evidence may be filed. Wray v. Hill, 85 Ind. 546, and decisions following that case, modified.

From the Lake Circuit Court.

B. Borders and F. L. Dukes, for appellants.

C. L. Holstein and C. E. Barrett, for appellee.

HOWARD, J.—This action was begun in the Pulaski Circuit Court, and was taken, on change of venue, to the court below. It was brought by the appellee, the Connecticut Mutual Life Insurance Company, against the appellees Gellinger and wife and Sourbeer and wife, to foreclose two mortgages, one against the Gellingers and one against the Sourbeers.

The appellants were also made defendants to assert any right which they might have. They filed their answer, and also a cross-complaint, to foreclose a mortgage

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