42 Ind. App. 57 | Ind. Ct. App. | 1908
Appellants ’ motion for a new trial as of right was overruled by the trial court, and the correctness of this ruling is the only question presented by this appeal.
Appellants insist that this was a suit limited to ejectment and to quiet title to real estate, while appellee contends that it was a suit to be allowed to redeem real estate from a completed mortgage foreclosure proceeding, and for possession and to quiet title.
Guided by these rules, and by the pleadings and judgment disclosed by the record before us, the question submitted must be decided. The first paragraph of the complaint was against Alvey and others, and not against the Aetna Life Insurance Company, and sought to recover the possession of certain described real estate. The second paragraph was against these appellants only, and by proper and sufficient allegations stated a-cause of action to quiet title to the same real estate described in the first paragraph. In addition this paragraph alleged that on April 5, 1888, appellee was the owner in fee simple and in the quiet and peaceable possession of said land, and on that day borrowed from said Aetna Life Insurance Company $3,000, and executed his promissory note for the same, together with coupon interest notes, and to secure the payment of said note and coupons he executed to said company a mortgage on said real estate; that he was thereafter induced by certain false and fraudulent representations, and without any consideration, to convey by deed said land, then and there worth $5,000 in excess of the mortgage indebtedness, to certain persons named; that on November 17, 1892, he com
On this paragraph an accounting of the rents and profits of said land while in possession of appellants was demanded ; appellee further prayed that he be permitted to redeem said land from said sheriff’s sale by paying such sum as the court should find to be due, and that he have possession thereof, or that his title to said land be quieted, subject to any amount found due appellants by reason of said mortgage indebtedness, after deducting said rents and profits while in their possession, and for any and all other relief to which he may be entitled either at law or in equity.
To this complaint and supplemental complaint appellant Aetna Life Insurance Company answered in three paragraphs: (1) A general denial; (2). averring that appellee’s cause of action did not accrue within six years next before the beginning of this action; and (3) averring that the judgment and decree mentioned in the second paragraph of the complaint was still in full force and effect; that appellee had no interest in said land after his said conveyance, and the sale of said land by the' sheriff to said Aetna Life Insurance Company for $3,781, and that no sum was thereafter paid by any person to redeem said land, and denying any knowledge that appellee was claiming any interest in said land; that on March 1, 1895, said insurance company sold and conveyed said land to its eoappellant Alvey, receiving therefor $.... in cash and two notes, one for $2,000 due March 1, 1900, and one for $3,000 due March 1, 1905,.
Appellant Alvey answered appellee’s complaint and supplemental complaint in two paragraphs: (1) By general denial; (2) by averring practically the same facts as set forth in the insurance company’s third paragraph of answer, and in addition, that said company, on receiving said sheriff’s deed, took and kept possession of said real estate, paid the taxes thereon and ditch assessments, and made improvements on same, and thereafter sold, conveyed and put him in possession thereof, which he now holds by virtue of his said purchase; that he has paid taxes and other assessments, and made valuable and lasting improvements thereon. Other averments are found in the answer, to the effect that appellee was of sound mind at the time he executed the deed mentioned in his second paragraph of complaint; that he, Alvey, is the owner of the land, and, by reason of certain averred facts, appellee was thereby estopped to claim any right or interest therein, and demanding that he be declared the owner thereof.
Appellee replied to the second and third paragraphs of answer of appellant company by general denial; and to the third paragraph by alleging practically the same facts as those in the second paragraph of complaint relative to the execution of the mortgage and proceedings thereafter leading up to the execution of a sheriff’s deed, a conveyance of the land by him to certain grantees, the institution of a suit to set that conveyance aside, and to quiet his title terminating in his favor, the filing of a lis pendens notice and knowledge of his claim of title on the part of said insurance company prior to its acceptance of the notes
The issues thus formed were submitted to the court for trial, and upon request special findings were made. Conelusions of law were stated thereon in favor of appellee, followed by a deefee that appellee be allowed to redeem said land from the sale made by the sheriff on December 19, 1891, by the payment of $4,645.68 within one hundred twenty days to the clerk of the Starke Circuit Court, and upon such payment appellee was given the right to take possession, and from thence on his title quieted against the deed executed by said sheriff to said Aetna Life Insurance Company, and against each of said appellants. The court also ordered that upon failure of appellee to redeem said land within one hundred twenty days his interest be foreclosed, and the sheriff’s deed .made valid and binding on appellee and sufficient to convey all his right, title and interest in said land as fully and completely as if the right to redeem had not been granted. It was further ordered that should said land be redeemed in accordance with the terms of the judgment, appellant Alvey was to have the tenant’s share, viz., three-fifths of the wheat raised on the land, with the right to enter thereon and harvest and thresh the same. All other crops on the premises were to be the property of said Alvey.
Judgment affirmed.
Yol., 42 — 5