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

The lien of the first Etna mortgage was therefore not extinguished by the giving of the second Etna mortgage for the same debt, but was kept alive to protect its holder from the intervening lien of the Blockberger mortgage.

What we have said as to the lien of the Etna mortgages applies also to the lien of the Connecticut Insurance Company's mortgage, as appears from other findings. From the tenth and eleventh findings it appears that the appellees Gellinger and Sourbeer, who, as owners of the land, applied for and received the loan secured by the Connecticut company's mortgage, had no knowledge of the Blockberger mortgage.

By the twelfth finding we learn that the same ignorance existed on the part of the Connecticut company when they took their mortgage and made their loan. The advice of the company's attorney, deceived no doubt as a result of the original Ætna foreclosure proceedings, seems to have been relied upon, and with reason, by the company. The company, as we think appears clearly from the findings, honestly believed, and had good reason to believe, although actually mistaken, that the second Etna mortgage was the only lien upon the land.

In Green v. Milbank, 3 Abbott's New Cases, 138, the court held that when parties advanced money to take up a mortgage "upon the understanding and belief that there was no lien upon the premises but that mortgage,' it is but just and equitable that such parties should be subrogated to the rights of the mortgage so taken up. In Barnes v. Mott, 64 N. Y. 397, there was a like holding.

Johnson v. Barrett, 117 Ind. 551, was a case where a husband and wife executed a mortgage upon the husband's land. The land was subsequently conveyed to the wife, who died shortly after a judgment of foreclos

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

ure was rendered on the mortgage, leaving her husband and children surviving. It was held that one who, at the husband's solicitation and on his representation that the title was in him, and without knowledge to the contrary, paid the amount of the mortgage judgment, and caused satisfaction to be entered, taking the husband's note and mortgage for the amount so advanced, was entitled to subrogation to the rights of the first mortgage.

In the same case it was held that where a mortgage is executed to raise money to discharge a prior incumbrance, and the money is so applied, the mortgagee becomes entitled to be subrogated to the rights of the prior incumbrancer when such subrogation is made necessary for the better security of his mortgage debt. Citing Gilbert v. Gilbert, 39 Iowa, 657.

For further authorities to the effect that, under the equitable principle of subrogation, one who pays a mortgage debt under an agreement for an assignment of the old mortgage, or for a new mortgage for his own benefit or protection, acquires a right to the security held by the first mortgagee. See Dixon Subrogation, section 165; Harris Subrogation, sections 811, 816; Tradesmen's Building, etc., Ass'n v. Thompson, 32 N. J. Eq. 133; Emigrant Industrial Savings Bank v. Clute, 33 Hun, 82; Emmert v. Thompson, 49 Minn. 386; Homeopathic, etc., Ins. Co. v. Marshall, 32 N. J. Eq. 103; Gans v. Thieme, 93 N. Y. 225; Moore v. Lindsey, 52 Mo. App. 474; Norton v. Highleyman, 88 Mo. 621; Hough v. Etna Life Ins. Co., 57 Ill. 318; Detroit Fire Ins. Co. v. Aspinall, 48 Mich. 238; Walters v. Walters, 73 Ind. 425; Pouder v. Ritzinger, 102 Ind. 571, and Pouder v. Ritzinger, 119 Ind. 597.

We conclude that the lien of the Etna company's first mortgage was not extinguished, but was kept alive. in the second Etna mortgage, as against the lien of the Blockberger mortgage; and, also, that the appellee, the

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

Connecticut Insurance Company, in loaning its money for the payment of the second Ætna mortgage, was subrogated to the rights of the holder of that mortgage, to the extent of the debt due and paid to the Ætna Insurance Company out of the money so loaned, being, as found by the court in in its twelfth finding, "nine hundred and forty-five dollars and fifty-five cents, which sum was accepted by said company in full satisfaction of the amount then due upon the mortgage executed September 20, 1880," and that the amount so paid, with interest, is, consequently, a first lien on the land in question in favor of said appellee.

It appears that "after the court had announced and filed its finding herein," the appellee insurance company moved the court for a supplemental finding as to the rate of interest which the amount paid the Ætna Insurance Company should bear, and that the court sustained said motion and made an additional finding of facts, over the objection and exception of appellants.

Counsel for the appellee company have offered no explanation or defense of this action of the court, not even referring to it in their otherwise well considered brief.

It must be admitted that there is serious conflict in the decisions of this court upon the question.

It is provided, in section 560, R. S. 1894 (section 551, R. S. 1881), that "Upon trials of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case, the court shall first state the facts in writing, and then the conclusions. of law upon them, and judgment shall be entered accordingly."

In the case of Wray v. Hill, 85 Ind. 546, this court,

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

in considering the foregoing provisions, said: "The statute evidently means that the finding of the court upon a question of fact shall stand upon substantially the same footing as the verdict of a jury, for the provis ions concerning new trials apply as well to the decisions of the court upon questions of fact as to the verdicts of juries. The adjudged cases proceed upon this theory, for it is uniformly held that where a special finding is defective, the remedy is by motion for a venire de novo, and that where the facts are not correctly found, the method of procedure is on a motion for a new trial.”

Following the decision in Wray v. Hill, supra, it would seem that the action of the court here complained of was error, and that the failure to find as to interest should have been reached in a motion for a new trial, and not by motion for additional or supplemental finding.

But, in a later decision, Knox v. Trafalet, 94 Ind. 346, the court, in considering the same question, said: "Under this statute, when a case is tried by the court, a special finding is similar to a special verdict when the case is tried by a jury. Upon the return of a special verdict by a jury, either party has a right to object to the same, and move the court to have the jury to make it more specific, or to move to strike out any part of it, or to require the jury to state further the facts of any issue omitted, and we see no reason why the same rights should not extend to a special finding made by the court."

If we had but these two decisions to consider, we should perhaps be able to reconcile them, and conclude that a special finding, like a special verdict, might be amended on motion, or, on failure to so amend, that the complaining party might also resort to a motion for a new trial for the same purpose.

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

The statutes themselves would seem to bear out such a conclusion. It is provided, in section 561, R. S. 1894 (section 552, R. S. 1881), that "The provisions of this code respecting trials by jury apply, so far as they are applicable, to trials by the court.

A jury, at any time before its discharge from the consideration of a case, may amend its verdict; and no reason suggests itself why this provision is not applicable to a trial by the court, and why, therefore, the court may not at any time during the term, and before judgment, amend its finding so as to make the same conform to the facts proved.

In Hartlepp v. Whitely, etc., Co., 131 Ind. 543, there seems to have been an uncertainty manifested by the court concerning the proper practice as to amending the finding before entering judgment. It is there said: "The court can not amend and supply defects in a special finding, on motion of one of the parties to a suit, after the rendition of the judgment, even if it could do so before judgment."

The same uncertainty was manifested in Barnhill v. Mill Spring, etc., Gravel Road Co., 51 Ind. 354, where a motion to make the special finding more specific and full had been overruled. Inasmuch, however, as the motion was not accompanied with a statement of the alleged defects, this court refused to pass upon the correctness of the ruling below, saying: "If, then, it is a proper practice to present the question by a motion that the court. make the special finding more full and complete, we think the alleged omissions should be pointed out to the court."

In jurisdictions having statutes similar to our own for the trial of causes by the court, it seems that the current of the decisions is to the effect that amendments to the special findings may be made at any time before judgment,

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