No. 8655 | Ind. | May 15, 1882
Action by John McCune against Joseph Baker to recover the possession of a tract of land in Whitley county. The complaint was in the usual form; the answer in general denial.
From a special finding of facts it was made to appear that on the 7th day of December, 1876, the plaintiff sold and conveyed the land in controversy to the defendant; that for a portion of the purchase-money the plaintiff took the promissory notes of the defendant payable in instalments, secured by a mortgage on the land; that afterwards there was a foreclosure of the mortgage, and a sale of the land by the sheriff to satisfy the amount decreed to be due for the balance of unpaid purchase-money; that the plaintiff became the purchaser of the land at the sheriff’s sale, and in due time received a sheriff’s deed conveying the same to him; that, at the time of the execution of the mortgage by the defendant,
Upon these facts the court came to the conclusion that, as against the defendant, the plaintiff was the owner and entitled to the possession of the entire tract of land, and gave judgment in favor of the plaintiff for the whole tract, in accordance with the finding.
The complaint of the appellant here is that the facts, as found by the court, established title in his wife to one undivided third of the land in suit, and that consequently the court erred in coming to the conclusion that the appellee was entitled to recover the entire tract of land.
Counsel for the appellant concede that the judgment appealed from is right as to two-thirds of the land, and also agree that, if all that was said by this court in the case of Kissel v. Eaton, 64 Ind. 248" court="Ind." date_filed="1878-11-15" href="https://app.midpage.ai/document/kissel-v-eaton-7042761?utm_source=webapp" opinion_id="7042761">64 Ind. 248, shall be adhered to, the judgment will have to be, in all respects, affirmed. But they contend that the decision in that case was in some, if not all, respects wrong, as applicable to the facts upon which it was based, and hence ought not to be followed in this or any other similar case. Much of the argument on both sides has been addressed to the supposed applicability or inapplicability of the opinion in that case to the facts now before us; but there is one important difference between that case and this, which seems not to have been fully observed, and that is: the wife of the mortgagor was not only a party, but was also the appellant, in that case; whereas in this the wife of the appellant was not a party to the action, and is, consequently, not bound, or in any manner precluded, by the judgment. The plain inference from the facts, as the court found them, was that the appellee was entitled to recover whatever interest the’ appellant may have had in the land, and, in legal effect, that was all the appellee recovered by his judgment.
As to the claim of title set up on behalf of Mrs. Baker, it
The judgment will, therefore, have to be affirmed.
The judgment is affirmed, with costs.