Reports of Cases Argued and Determined in the Supreme Court of Judicature of the State of Indiana - By Horace E. Carter (Volume 86) (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1883. Excerpt: ... absolute and positive covenant by the defendant to pay a sum of money on a day certain." Devol v. Mcintosh, 23 Ind. 529-t Weddle v. Stone, 12 Ind. 625. The case of Tate v. Booe, 9 Ind. 13, which seems to assert a different doctrine, was expressly overruled in Johnson v. Britton, 23 Ind. 105. It is said, however, that the covenant expressed in the words "and the mortgagors agree to pay the sum above secured," refers to a sum named in the mortgage as due the mortgagee. We can not so read the instrument. It is a familiar rale that all the provisions of a contract are to be considered for the purpose of ascertaining the intention of the parties, and that, when the intention is ascertained, it shall be carried into effect. Taking into consideration all the provisions of the instrument before us, it is perfectly clear that the mortgagors covenanted to pay the entire indebtedness described in the mortgage, and not merely a part of it. In verification of our conclusion, we need quote only one of the other provisions of the mortgage, and this is the one which reads thus: "Now, if the mortgagors pay said sums of money and all interest thereon, and save the mortgagee from any and all liability thereon, this mortgage to be of no effect, otherwise to be in full force as a security and indemnity as aforesaid." This means that the mortgage shall secure all the sums which the mortgagors have agreed to pay, and shall also stand as an indemnity to the mortgagee for all incidental losses, as costsand the like. It is also contended that the complaint does not identify the indebtedness secured. We arc clear that the mortgage on its face does this, but if we are wrong in this, it is quite certain that the complaint, by a proper statement of facts, does, and this, it is settled...