The complaint in this case did not allege that the individual defendants, William A. Flint and Harold P. Flint, executed the mortgage sued on, or owned, claimed or asserted any interest in the mortgaged real estate. Each paragraph merely averred that they joined in the execution of a promissory note, and that the company gave a mortgage on its real estate to secure the note. Appellee cites and relies upon Nesbit v. Hanway (1882),87 Ind. 400.
But in that case an owner of real estate had mortgaged it to a trust company, and three years later borrowed some money from a bank, giving a note to the bank on which appellant was surety. Judgment having been recovered on the latter note against the maker as principal and appellant and another as sureties, and appellant, having purchased the mortgaged real estate at a sale on execution and paid off the judgment before *Page 450 suit was begun to foreclose the mortgage, but not being made a party to the foreclosure suit, was held entitled to redeem from the sale on foreclosure after a sheriff's deed to the purchaser at that sale had been executed. But his right of redemption in that case arose out of the facts showing his relation to the judgment by which a lien on the real estate had been created, "which facts," said the court, "were shown by the return of the execution, which was recorded." The case cited is clearly distinguished from the one at bar.
The point which appellee seeks to make based upon the testimony of William A. Flint that since this action was begun the mortgaged real estate had been 5,6. conveyed to him was not made in the original briefs. Therefore it is not available on petition for a rehearing. Rule 22 of Supreme Court. City ofEvansville v. Senhenn (1897), 151 Ind. 42, 62,47 N.E. 634, 51 N.E. 88, 41 L.R.A. 728, 68 Am. St. 218. And in any event the finding that the mortgage shall be foreclosed and the real estate sold was not set aside by this court.
The cross-complaint alleged that by means of certain promises appellee induced cross-complainant William A. Flint to assign certain capital stock to a trustee, who was in appellee's employ, and that by reason of certain alleged wrongful acts of appellee and its said employe cross-complainant sustained a loss, for which damages were demanded. Appellee answered the cross-complaint by a denial, and a special plea that William A. Flint was not the real party in interest, and no question was presented on appeal as to its sufficiency. Such a cross-complaint pleaded mere matters of set-off, and since the complaint asked only a personal judgment on a contract (a note) as against William A. Flint, he had the right to present as a set-off any "matter arising out of debt, duty or contract" which was owned by him at the time *Page 451 the suit was commenced, and had fully matured, without showing that they were otherwise related to the contract sued on in the complaint. § 353 Burns 1914, § 348 R.S. 1881. Such a plea of set-off did not tender an equitable issue, and had no necessary relation to the issue joined by the defendant company on the complaint to foreclose a mortgage on its real estate.
The petition for a rehearing is overruled.
Townsend, J., absent.
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