38 Ind. App. 312 | Ind. Ct. App. | 1905
Lead Opinion
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On January 26, 1897, appellee began this
suit in the Starke Circuit Court against appellant James L. Alvey, also Anna Alvey, John Zurn and Barbara Zurn, by complaint in one paragraph in the ordinary statutory form, seeking to recover the possession of 335 acres of land in Starke county, *and for damages. To this complaint such proceedings were had that on March 17, 1897, defendants answered by general denial.
On October 24, 1898, appellee by leave of court filed an additional or second paragraph of complaint, making James L. Alvey and the Aetna Life Insurance Company defendants. By this paragraph he sought to quiet his title to 335 acres of land in Starke county as against all the defendants. He asked that an accounting be had of the rents and profits of said land while in the hands of the defendants, and that he be allowed to redeem from the sale of said land made by the sheriff, by paying said defendants or either of them, as the court may determine, such sum as the court may find to be due, if any, after deducting the reasonable value of the rents and profits received by the defendants or either of them, and that he have judgment, and be awarded possession of said premises, and that the defendant Alvey be ejected therefrom, and for all" other relief, etc. On December 5, 1899, appellee filed a supplemental complaint demanding that upon the determination of this cause of action an accounting be had, and that defendants be required to account for the rental value of the
The court, at the request of the parties to make special findings and state conclusions of law thereon, on October 1, 1902, submitted and filed special findings and conclusions of law, in substance as follows: (1) On April 5, 1888, appellee was the owner in fee simple and in the peaceable possession of the land described in this complaint (giving a particular description of the land). (2) On said April 5, 1888, appellee borrowed from appellant Aetna Life Insurance Company the sum of $3,000, for which he executed his note, together with certain interest coupon notes payable to said company, the principal note to become due five years from date, and to secure the payment of said noté and coupons appellee executed his mortgage upon the land described in his complaint, which mortgage provided that upon default in the payment of any interest when due the whole debt might be declared due and the mortgage at once foreclosed. (3) On August 23, 1889, appellee by deed conveyed said land to Brayton V. B. Skinner, which deed was recorded in the recorder’s office of .Starke county, Indiana, October 4, 1889, and said Skinner on February 28, 1890, conveyed said land to Stephen A. Valentine and wife, Anna, which deed was duly recorded April 22, 189Ó. On November 17, 1892, appellee brought a suit in the Starke Circuit Court against said Valentine and Skinner et ah, including appellant Aetna Life Insurance Company, to quiet the title to said land. At the time
“From the facts so found the court concludes the law to be that the plaintiff, Jacob Stryker, is entitled to redeem the lands mentioned and described in the complaint from the sale made by the sheriff of Starke county, Indiana, as found in finding five of the special findings, by the payment of the amount for which said lands were sold, with eight per cent interest thereon from the date of said sale to this time, together with the amount of taxes paid and costs of improvements made by the defendants while in possession of said lands, less the rental value of the land during such time; and that, subject to the payment of such
To each finding of fact and to the conclusions of law the appellants each separately excepted. Thereupon a decree was entered permitting appellee to redeem the land in the complaint described, 120 days being given appellee to pay said sum of money, and upon payment thereof, with six per cent interest, to the clerk, he was given the right to enter and take possession of said lands, and from thence on forever his title to be clear and quieted from all liens and claims of defendants; and on failure to pay said sum of money within the time allowed, etc., said sheriff’s deed to appellant insurance company was made permanent, etc.
Before the submission of said cause for trial appellee dismissed this, action as to Zurn and Zurn.
The appellants, insurance company and Alvey, each filed separate motions for a new trial, each assigning as causes therefor: (1) The special findings of the court are not supported by sufficient evidence, nor is any one of them; (2) the conclusions of law, stated by the court in the above-entitled cause, are not supported by sufficient evidence, nor is any one of them; (3) the decision of the court is contrary to law; (4) the decision of the court is not sustained by sufficient evidence; (5) the special findings, conclusions of law and decree of the court are not sustained by sufficient evidence, nor is any one of them; (6) the special findings, conclusions of law and decree of the court are contrary to law.
. Each of said motions jbeing by the court overruled, exceptions were properly taken by the Aetna Life Insurance Company and James L. Alvey separately, who now prosecute this appeal upon separate assignments of errors. Anna Alvey declined to join in this appeal. This is a term-time appeal. The evidence is in the record.
In the ease of Wilson v. Hefflin (1881), 81 Ind. 35, the court said: “Here, however, was notice by a Us pendens. Such a notice is equivalent to actual notice.”
It would hardly he contended, that, if we were entirely to eliminate the foreclosure proceedings, and, instead thereof, base appellants’ title on a deed from Valentine, made after notice to appellants, as the facts herein show was given by appellee, it would he sufficient to withstand a suit on the part of appellee to quiet his title against them. Such a holding would he against every principle of equity, and in a measure tend to legalize the taking of one’s property without due process of law. In this connection we quote the language used hy the court in the case of Myers v. Cochran (1868), 29 Ind. 256, as follows: “The appellants could only claim title under the sale, if at all, on the ground that they were bona fide purchasers under a
In Cornett v. Hough (1894), 136 Ind. 387, it was held that “a mortgage, even if foreclosed, conveys no title to real estate; the title remains in the mortgagor until the delivery of the sheriff’s deed.” Citing authorities.
In the case of Hill v. Swihart (1897), 148 Ind. 319, the court said: “This certificate did not operate to pass to them any title to the lands, in the absence of the execution of the sheriff’s deed thereon, after the expiration of the year allowed by the statute for redemption.” Citing authorities.
It seems to us, after a careful examination of the record in the case at bar, that the merits of this cause have been fairly and impartially tried and determined, and a just and equitable conclusion reached by the trial court. We find no error in the record. Decree affirmed.
On Petition to Supplement Record.
Appellants have filed a petition for a writ of certiorari, the purpose being to bring before this court the proceedings had in the court below on the separate motion of each appellant for a new trial as of right. By this petition it is made to appear that after this cause had proceeded to final decree on the merits in the trial court, and after an appeal from that decree, and before decision by this court, and within the time allowed by law therefor, each of the appellants filed in the court below a separate motion for a new trial as of right. These motions were by the trial court overruled and final decree thereon rendered after the decision of this court affirming the decree on the merits. How, pending the petition for a
In this State a writ of certiorari is issued only “to compel any inferior court, board, or officer exercising judicial functions, or other person, to certify to such court a full and complete transcript of the records and proceedings of any such tribunal, board, officer, or person, and the production of any paper, whenever it shall be necessary for the proper determination of any cause or proceeding pending before the appellate court.” §680 Burns 1901, §668 R. S. 1881. There is no claim of any diminution of the record now before the court affecting in any way a full determination of this cause upon the merits, and if there were, the time is now past for any correction. The purpose of the Writ asked is to bring before the court an independent proceeding, appealable as of right, independent of the questions presented by the record now here. Atkinson v. Williams (1898), 151 Ind. 431.
Rehearing
On Petition eor Rehearing.
Apellants have filed a petition for a rehearing, assigning many reasons therefor, and supporting the same by a vigorous brief.
In our opinion, the facts pleaded are sufficient to bring the case within the equitable doctrine, that where a lien holder has credits in his hands which should be applied to the discharge of the lien, it is not necessary to aver in a complaint for an equitable redemption a tender of the amount fixed by the lien, or an offer to pay that amount, but an offer to pay whatever sum shall be found due upon taking the account. Kemp v. Mitchell (1871), 36 Ind. 249, 255, and cases cited; Horn v. Indianapolis Nat. Bank (1890), 125 Ind. 381, 9 L. R. A. 676, 21 Am. St. 231; Coombs v. Carr (1876), 55 Ind. 303, 309; Nesbit v. Hanway (1882), 87 Ind. 400.
(1890), 122 Ind. 124; Petry v. Ambrosher (1885), 100 Ind. 510; Curtis v. Gooding, supra; Scates v. King (1883), 110 Ill. 456; Gage v. Brewster (1865), 31 N. Y. 218.
While a “title by warranty, for like reason, the form of the latter deed furnishes sufficient assurance to justify confidence that upon inquiry the title” will be found good and
As bearing on the question of facts known to the purchaser, or which he might have known by making inquiry, this court in Toledo, etc., R. Co. v. Fenstemaker (1892), 3 Ind. App. 151, 154, said: “One can not purchase property where therp are facts known to him sufficient to put him on inquiry, and hold it free from prior claims or equities of which due inquiry would have given him information. A party in possession of certain information will be chargeable with knowledge of all facts which an inquiry suggested by such information would have disclosed to him.”
In Dailey v. Abbott, supra, it is held: “As long as the right of redemption exists, the mortgagor is entitled to rent, if the mortgagee is in possession, taking the rents and profits. The statute prolongs the mortgagor’s right of redemption for one year after the sale. The purchaser at the sale takes the place of the mortgagee, and if he takes possession of the land before the period of redemption expired, there is no good reason why he should not be accountable for the rents and profits. On redemption he gets the purchase money with interest at ten per cent. His vendor occupies no better position. 2 Jones, Mortgages, §1118.”
As between appellants, this issue was not tendered, hut we see no reason why their rights might not have been adjudicated in this suit, had they chosen to tender that issue, upon the theory of preventing a multiplicity of suits, but as this question is not before us, we decline further to, consider it.
Finding no reason for changing onr former opinion in this case, the petition for a rehearing is overruled.