Abraham Clark Freeman.

The American state reports: containing the cases of general value and ... online

. (page 23 of 121)
Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 23 of 121)
Font size
QR-code for this ebook


period of limitation, constitute an ouster and adverse possession.
The circumstance, therefore, of the execution of promissory
notes by the appellee, and previously by her grantors, for the pur-
poses alleged in the reply, that is to say, to protect, preserve, and
continue the interests of the tenants out of actual possession
must be held sufficient to overcome the apparent intention aris-
ing from the prima facie case stated in order to uphold the reply.
The reply was not as full and specific as its importance would
seem to require, but this was excused by the allegation that the
facts were not more fully known to the appellants. As we con-
strue the facts pleaded, they constitute '^^ a specific denial of
the allegation of the answers that the appellee's occupancy was
under claim of title to the whole lands. It is not our province to
suggest what evidence should be required, but we have no doubt
that upon the reply the issue is made as to the intended ouster
and adverse claim of title by the appellee.



Digitized by



GooqIc



Feb. 1896.] McOahan v. Indianapolis Natural Gas Co. 199

The judgment of the circuit court is reversed with instme-
tions to overrule the demurrer to said reply.

COTENANCY — ADVERSE POJSbESSION — CONVEYANCE OF
WHOLE TRACT BY ONE COTENANT.— A cotenant who selle and
eonveya the whole of the land held in common and gives possesiioiif
thereby creates in the grantee a title and possession adverse to the
other cotenants. and if such grantee continues to hold for the period of
time prescribea by the statute of limitations, he thereby acquires •
good title as against them: King v. Carmichael, 136 Ind« 20; 43 Am.
fit. Rep. 303, and note with the cases collected.



McGahan V.Indianapolis Natural Gas Company.

[140 INDIAHA, 885.]

EVIDENCE.— JUDICIAL NOTICE is taken by the courts of the
fact that natural gas does not explode spontaneously.

NEGLIGENCE — PROXIMATE CAUSE— PLEADING.— A com-
plaint to recover for injury caused by tlie escape and explosion of nat*
oral gas through negligence, without alleging what brought about such
explosion, does not state facts sufficient to constitute a cause of action,
and is bad on demurrer.

NEGLIGENCE — PROXIMATE CAUSE- INTERVENING
AGENT. — A responsible agent, intervening between the original negli-
gence and tbe injury, cuts o£F the line of causation, and relieves the
originally negligent party from liability.

S. IL Shepard and J. P. Baker, for the appellant.

W. H. H. Miller, P. Winter, and J. B. Elam, for the appeDee.

"* HACKNEY, C. J. This action was by the appellant, and
by it he sought to recover damages for personal injuries •*• re-
Bulting from an explosion of natural gas. The complaint was
in two paragraphs, to each of which the lower court sustained
the appellee's demurrer, and that ruling is the only assigned
error. The material facts alleged were that the appellee was
engaged in supplying natural gas, for fuel and other purposes,
to the citizens of the dty of Indianapolis; that a tenement occu-
pied by one Kilbum was supplied with natural gas by said com-
pany, through a service pipe of said company extending from its
mainB to the property line, and there connecting, liy a valve,
with the pipes of said tenement; that said tenant discovered that
the gas was escaping from the pipes upon said premises, and after
passing through said valve; that she employed the appellant, an
experienced plumber, to locate and remedy the defect in the pipes
which permitted the gas to so escape; that said valve was for the
purpose, and wu the only means, of cutting off the supply of gas



Digitized by



GooqIc



200 MoGahan v. Indianapolis Natural Gas Go. [Indiana^

from the appellee's mains to said premises^ and it was under the*
exclusive control of the appellee; that to repair said defect it
became necessary to have said supply of gas cut off^ and for thai
purpose the appellee was repeatedly requested, and promised, to-
have said valve turned without delay, but, through the negli-
gence of said company, and its incompetent servants, said valve
was not so turned, and said gas continued to escape within said
tenement for more than twenty-four hours; that during that
period, and while upon a second visit to said premises, the appel-
lant was engaged in searching for said defect, and, while so en-
gaged, said natural gas, then being inflammable and liable ta
explode, did explode with such violence as to produce the injuries^
complained of.

It is also alleged that appellant was free from contributory
negligence, and that the appellee knew of the dangerous charac-
ter of said natural gas, but there is no allegation as to the cause of
such explosion, nor that the gas ^^ would have exploded without
some intervening agency.

That it was negligence to omit to turn off the gas from said
premises when so requested is not controverted, and we do not
decide, but it is insisted that this alleged negligence was not the
proximate cause of the injury, and that the specific facts pleaded
disclose the negligence of the appellant contributing to the in-
jury.

That the injury complained of must appear, from the facta
alleged, to have been the proximate result of the appellee's neg-
ligence is not questioned by the appellant, but it is argued that
the injury resulted proximately from the failure to turn the gaa
from said premises. It is said that 'Tiad not the appellee been
guilty of the negligence alleged, the injuries to the appellant
would not have happened/' This argument is not tenable, since
it can be said, with equal propriety, that the injury would not
have been sustained if the appellant had not undertaken the
known dangerous experiment of searching for the defect while
the gas was flowing into the pipes of the tenement. But we can
say, as a matter of common knowledge, that the injury was not
due to spontaneous combustion, and that it was impossible with-
out some agency acting upon the leaking gas; therefore, we can.
say further that but for such agency the injury had not been.

We cannot say that the intervening agent was not a responsi-
ble agent, one not conscious of the presence and dangerous char-
acter of the explosive, as an infant or an insane person. The
facts essential to a consideration of this important question are



Digitized by



GooqIc



Feb. 1895.] McGahan v. Indianapolis Natural Gas Co. 201

wholly abflent. The burden rested upon the appellant to allege
facts showing that the injury was due to the appellee's negli-
gence and, from the facts alleged, we learn that the omission
complained of supplied the condition upon which, necessarily,
some ^^^^ agent acted in producing the injury, the omission being
an antecedent to the explosion.

If the omitted facts should disclose an agency for which the
appellee was responsible, a difFerent case would be made, and if
such facts disclosed that the appellant sought the defect in the
pipe carrying a lighted lamp, which caused the explosion, the
question would then arise as to whether his own act was not the
interyening agency^ and whether the act so operating did not in-
sulate the negligence of the appellee from the injury and estab-
lish contributory negligence. The facts alleged do not disclose
peril to the appellant or any other person urging him to hazard
his life in searching for the defect before the gas was cut off, and
thereby possibly excusing the intervention of such agency.

The defective pipe is not charged to any negligence of th«
appellee, and the presence of the escaping gas, and its dangerous
character, are not alleged to have been unknown to the appellant.
The facts as they are presented raise the inquiry as to whether
the alleged negligence of the company was the proximate cause
of the injury, regardless of whatever agency intervened. If it
can be said that the escaping gas was the direct and efficient or
proxinuite cause of the injury, to the exclusion of every fact or
circumstance that might have operated upon it, and that no
agency could have taken it up and employed it so as to have be-
come the dominating and effective cause, then this complaint is
sufficient, so far as this question is concerned, otherwise it is not.

In Cuff V. Newark etc. K. K. Co., 36 N. J. L. 17, 10 Am. Kep.
205, it was said in considering the question of intervening agen-
ciea: ''A places a log in the highway, which B oasts into an ad-
joining close, or puts an obstruction upon the sidewalk, which
passers-by throw into the roadway of the street, and a traveler is
injured by coming •^ in contact with it. A cannot be held for
the trespass in the one case, nor for the injury in the other.''

Mercer, J., in Oil Creek etc. Ry. Co. v. Keighron, 74 Pa. St
320, said: Natural and proximate cause .... I understand to
be, that the cause alleged produced the injury complained of,
without any other cause intervening.''

In Carter v. Towne, 103 Mass. 507, gunpowder had been sold
to a boy, and subsequently -came under the control of adults,
who permitted the boy to fire it off. For the injury resulting to



Digitized by



GooqIc



202 McOahan 9. Indianapolis Natural Gab Co. [Indians,

the boy from the explosion of the powder, it was held that the
merchant was not liable, because of the intervening negligence
of the adults in so permitting the use of the powder. The rule
that an intervening responsible agent cuts off the line of causa-
tion from the original negligence has been many times recog-
nized by this court: New York etc. R. R. Co. v. Perriquey, 138
Ind. 414, and cases there cited; and this is not questioned by the
learned counsel for appellant; therefore if we may indulge the
ordinary presumptions against the pleading under consideration,
in the absence of any allegation as to the agency necessary to havo
intervened, we will presume that it was a responsible agent. The
presumption most favorable to appellee must be indulged, and
that is that the intervening agency was the appellant's own act
in carrying a lighted lamp, vrhich caused the explosion. Leav-
ing out of view the doctrine of contributory negligence, the
skill of the appellant in the business of plumbing, and his ac-
quaintance, necessarily, with the explosive character of natural
gas, gives emphasis to his responsibility for the explosion, in the
introduction of some intervening agency: See Bartlett v. Boston
Gas Light Co., 117 Mass. 533; 19 Am. Rep. 421; Fitzgerald v.
Connecticut River etc. Co., 155 Mass. 155; 31 Am. St. Hep.
537.

^*^ The complaint was insufficient, and the circuit court com-
mitted no error in sustaining the appellee's demurrer.

The judgment is affirmed.

NEGLIGENCE— PROXIMATE CAUSE-INTERVENING AGEN-
CY.— When the independftnt act of a responflible person intervenes be-
tween the defendant's negligence and tne injury eustained, such act
breaks the causal connection between the negligence and the damage, and
be who is guilty of the original negligence is not chargeable, but redreaa
must be sought from him who directly caused the injury, unless the
intervening act is such as mi^ht reasonably be anticipated as the natural
or probable result of the original negligence; Mahogany v. Ward, 16
R. I. 479; 27 Am. St. Rep. 763, and note. See the full discussion of
this subject in the eztenaed notes to Henev v. Dennis, 47 Am. Rep
882, and Qiison v. Delaware ete. Canal Co., 86 Am. St. Rep. 836.



Digitized by



GooqIc



Feb. 1895.] Bow£N v. Batclivf.



BowBN V. Ratolipp,

OM jMDUJXJi, 898.]

MORTOAGES-DESCKIPTION OF DEBT.— A mortgage to bo
yalid must in some way deBcribe and identify the indebtedness it is
intended to secure. Literal accuracy is not required, but the descrip*
tion of the debt must be correct, so far as it goes, and full enough to
direct attention to the sources of correct information in regard to it,
end be such as not to mislead or deceive as to the nature or amount of it.

MORTGAGES— DESCRIPTION OF DEBT.— RENEWAL N0TE8

Siven for notes not described in a mortgage, or notes given for an in-
ebtedness not secured by mortgage, are not secured by such mortgage.
MORTGAGES— DESCRIPTION OF DEBT— FORECLOSURE. —
II the amount of the debt secured is not specified in the mortgage, the
mortgagor can recover on foreclosure only so much as he shows affirma-
tively to be due.

M. Winfield, B. C. and C. B. Pollard, and C. K Taber, for the
appellants.

W. C. Smithy O. W. Jnlien, and M. A. Byan, for the appellee.

••• MONKS, J. Harvey J. Ball made en assignment under
the law to appellee, Abner Batcliff, his assignee. Batcliff, aa
assignee, on the first day of January, 1894, filed his petition in
the Carroll circuit court, asking for the sale of the following
described real estate in Carroll county, Indiana, to wit:

The northwest fractional quarter of section 31, township 24
north, range 1 west, containing 147 12-100 acres of land. He
made the appellants Abner T. Bowen, John A. Cartwright, and
Edward W. Bowen, a firm doing business under the name and
style of A. T. Bowen & Co., and a firm doing business under the
name and style of the Citizens' Bank, defendants to his petition,
alleging ••* in his petition that Harvey J. Ball had executed a
mortgage to the Citizens' Bank of Delphi, Indiana, bearing date
of the fourth day of October, 1892, for the sum of $1,500, with
eight per cent interest; that the same became due on the fourth
day of September, 1893; and one mortgage executed by Harvey
J. Ball and wife to the said A. T. Bowen & Co., bearing date
March 2, 1893; that the said mortgage executed by Harvey J.
Ball and wife to the said A. T. Bowen & Co. does not set forth
the amount secured by said mortgage, and your petitioner does
not know what said mortgage secures; that the said Citizens'
Bank and the said A. T. Bowen ft Co. also held a large amount
of notes which were assigned to them by the said Harvey J. Ball
as collateral security, and he makes the said A. T. Bowen ft Co's
bank and the Citizens' Bank parties hereto, that the amount of
their liens may be ascertained and fixed by the court, and that



Digitized by



GooqIc



204 BowEN V. Ratclivf. [Indian r^

he be authorized to pay the amount found due the said Citizens'
Bank and the said A. T, Bowen & Co. out of the proceeds of said
Bale.

Other lienholders were also made parties, and the petitioner
asks the court that the defendants, including appellants, le re
quired to answer the petition and to set up the amounts of their
liens.

Appellants appeared and filed answer. The substance of the
answer is that appellants held several notes signed by the pjuq
Harvey J. Ball with others: One dated I'ebruary 21, 1893, due
one month after date, for $1,434.98, upon which has been paid
different amounts. Two notes for $<JuO each, dated July 1, 1889,.
due on the 1st of January after date, which had been assigned in
writing to appellants. One note, dated March 10, 1893, due two
months after date, for $840.60, with interest. *^* One note^
dated December 22, 1890, due one year after date, for $461, witL
interest at the rate of eiglit per cent. One note, dated March 12,
1890, due seven months after date, for $147.87, with interest.
One note, dated March 10, 1893, due in three months after date,
for $1,000, with interest, upon which some payments had been
made. One note, dated November 19, 1888, due In nine months
from date, for $100, assigned to appellants in writing, with
attome/s fees. One note, dated January 2, 1892, due on the
first day of September, 1892, for $35, with interest, and assigned
to appellants. One note, dated January 2, 1892, due the first day
of January, 1893, for $35, with interest, and assigned to appel-
lants. That all of these notes were secured by a mortgage upon
the land described in the petition, executed by the said Harvey J.
Ball and Eunice A. Ball, his wife, on the second day of March,
1893.

The description in the mortgage is as follows: ^'Harvey J. Ball
and Eunice A. Ball, his wife, of Carroll county, state of Indiana,
mortgage and warrant to A. T. Bowen and Company, of Carroll
county, in the state of Indiana, the following real estate in Carroll
county, in the state of Indiana, to wit [describing the land]; and
to secure any notes that may be given for renewal of said notes,
or any part thereof, or for interest thereon, and any future ad-
vances or other indebtedness due, or that may hereafter become
due, the mortgagees or either of them from the mortgagors or
either of them, to the amount of $10,000.*'

The answer avers that appellants admit they have and hold »
Ken on the real estate described in said petitioner's ••• petition^
in the sum of $3,999.90; that the same consists of promissory



Digitized by



GooqIc



Feb. 1895.] Bowbn v. Ratcliff. 205

notes made, executed, and delivered by the said Harvey J. Ball,
upon different occasions and at different times, to the said
A. T. Bowen & Co., and upon certain notes that were exe*
cuted by the said Harvey J. Ball to different parties, and
assigned by said parties in writing, to the said A. T. Bowen
& Co., and upon certain other notes which were by the
said Ball assigned, in writing, to said appellants herein; all
of which notes are long since due, and remain wholly unpaid.
Copies of each of said notes, and the mortgage securing the same,
are each filed with and made a part of the answer, and that said
notes were given for renewal of certain notes which were sur-
rendered up at the time of the giving and assigning the notes to
said Bowen by said Ball, and for other indebtedness due said
Bowen and for advancements made to said Ball; appellants
aver that said mortgage was duly recorded on the thirtieth day of
March, 1893, in the records of the recorder's office of Carroll
county, Indiana; that said notes are secured by said mortgage.
And appellants ask in their answer that their lien be ascertained
and protected in the decree ordering the sale of the property,
and that the same be paid out of the proceeds of the sale. Ap-
'pellee, Batcliff, filed a demurrer to appellants' answer, which was
sustained by the court, to which ruling appellants reserved an ex-
ception*

The court thereupon rendered judgment against appellants for
costs, and ordered that said real estate be sold by said assignee.
The objection urged in the answer of appellants was that there
is no sufficient description of the debt secured by the mortgage.

A mortgage, to be effective, must in some way describe and
identify the indebtedness it is intended to secure: ^^ Philbrooka
V. McEwen, 29 Ind. 347; Brick v. Scott, 47 Ind. 299.

Literal accuracy in describing the debt secured by the mort-
gage is not required, but the description of the debt must be cor-
rect so far as it goes, and full enough to direct attention to the
sources of correct information in regard to it, and be such as not
to mislead or deceive as to the nature or amount of it by the lan-
guage used: New v. Sailors, 114 Ind. 407; 5 Am. St. Eep. 632;
Ogbom V. Eliason, 77 Ind. 393; Aetna Life Ins. Co. v. Finch,
84 Ind. 301; Jones on Mortgages, sees. 70, 343.

In New V. Sailors, 114 Ind. 407, 5 Am. St. Eep. 632, this court
said: '*It is essential that the character of the debt and the ex-
tent of the encumbrance should be defined with such reasonable
certainty as to preclude the parties from substituting other
debts than those described, thereby making the mortgage a mere



Digitized by



GooqIc



206 BowEN V. Ratc'LIFP. [Indiana,

cover for the perpetration of fraud upon creditors*': Pettibone v*
Griswold, 4 Conn. 158; 10 Am. Dec. 106.

An examination of the clause of the mortgage describing the
indebtedness secured leads to the conclusion that the description
of the indebtedness is not complete, that something is omitted.
The clause is: "And to secure any notes that may be given for
renewal of said notes, or any part thereof, or for any interest
thereon, etc." The notes referred to by the words **said notes'*
are not described in the mortgage, and are, therefore, not secured
thereby; that being the case, no notes given in renewal thereof
would be secured by the mortgage held by appellants, under
the allegations in the answer. The words, "or other indebted-
ness due, or that may hereafter become due, etc.,'* must be held
to mean indebtedness other than future advances, or indebted-
ness evidenced by promissory notes.

The mortgage thus construed, in the light of the allegations in
the answer, secures no indebtedness which ®®® was evidenced by
promissory notes when the mortgage was executed. There are,
however, two notes filed with and made a part of the answer,
dated March 10, 1893, one calling for $840.60 and the other
$1,000. These notes were given after the mortgage was exe-
cuted. The answer alleges that the notes filed therewith and
made a part thereof "were given for advancements made to said
Ball." This allegation could only apply to the two notes men-
tioned, and, if they were given for advances made after the exe-
cution of the mortgage and on the faith thereof, they are se-
cured by it^ but if given for, or in renewal of, indebtedness not
secured by the mortgage, they are not secured by it.

Und6r the allegations of the answer, none of the notes filed
with and made a part thereof come fairly within the terms used
in the mortgage, except the two described. How much this could
be changed by averment and explained by extraneous evidence
we need not and do not decide: New v. Sailors, 114 Ind. 407; 5
Am. St. Rep. 632.

We think the two notes dated March 10, 1893, were sufficiently
described in the mortgage, aided by the allegations in the an-
swer, to render said answer good against the demurrer.

Whether the two notes named are secured by the mortgage can
be determined from the evidence when the cause is tried. The
rule in this class of cases is that the mortgagee is entitled to re*
cover only so much as he shows affirmatively is due. Any doubt
or uncertainty should operate against the mortgagee and not in
his favor: Kline v. McGuckin, 25 N. J. Eq. 433; 1 Jones on
Mortgages, sec 378.



Digitized by



GooqIc



Feb. 1895.] Bowen v. Ratcliff. 207

For the reasons giyen^ the court erred in sustaining the de-
murrer to appellants' answer.

Judgment reversed, with instructions to overrule the ••• de-
murrer to appellants' answer and for further proceedings in
accordance with this opinion.

Desoxiption of Indebtedness In a Mort^as-e.
A Mortgage Mutt Identify ths Indehtednen it is intended to se-
cure: FhilbrookB V. McEwen, 29 Ind. 347; Brick v. Scott, 47 Ind. 299.
The mortgage debt must be described with sufficient certainty to enable
subsequent creditors, purchasers, or encumbrancers to ascertain, either
from tne condition of the deed or by inquiry aliunde, the eztont of the
encumbrance: Booth v. Bamum, 9 Conn. 2SQ; 23 Am. Dec. 339; Mer-
rills ▼. Swift, 18 Conn. 257; 46 Am. Dec. 315, To render the mortgage
valid as against third parties, the description of the indebtedness roust
be such as to give reasonable notice of the encumbrance on the land
mortgaged: Stoughton y. Pasco, 5 Conn. 442; 13 Am. Dec. 72; Petti-
bone V. Griswold, 4 Conn. 158; 10 Am. Dec. 105; Crane v. Deming, 7
Conn. 387; Bacon y. Brown, 19 Conn. 29. The amount of the debt in-
tended to be secured bva mortgage must be shown to a reasonable
degree of certainty in the mortgage. If the amount is not ascertained,
then such descriptive facts as are within the knov^Medge of the parties,
and as tend to put one interested in the inquiry upon the track leading
to a discovery, must beset out in the mortga»;e: Pearce v. Hall, 12 Bush,
209. But to constitute such reasonable notice it is not requisite that
the description should be so completely certain as to preclude the ne-
cessity of extraneous inouiry. It is sufficient to state the subject matter
of the debt secured by tne mortgaf^e, and that from which, by tlio ex-
ercise of common prudence and ordinary diligence, the extent of the
encumbrance may be ascertained: Stoughton v. Pasco, 5 Conn. 442;
13 Am. Dec. 72. Toe rule is thus summed up in Bullock v. Battenhousen,
108 111. 36: **The record of a mortgage should disclose, with as much
certainty as the nature of the case will admit, the real state of the en-
cumbrance. If a mortgage is given to secure an ascertained debt, the
amount of that debt should be stated, and if it is intended to secure a
debt not ascertained, such data should be given respecting it as will
put any one interested in the inquiry upon the track leading to the



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 23 of 121)