69 Ind. 362 | Ind. | 1879
Lead Opinion
Complaint before a justice of the peace, by the appellant, against George Levacy, as his tenant holding over, to recover the possession of two tracts of land, which lie adjoining one another and are described in the complaint. The appellee Isaac C. Walker was admitted a defendant before the justice, without any objection from
The statement of facts found by the court is so long that it is impracticable to set it out at length, and so much in detail that it is unnecessary. The facts which control the case may be stated as follows:
The premises in controversy were originally a part of the lands granted by the United States to the Indiana University. The first tract described in the complaint was entered under section 7 of the act of March 2d, 1859, 1 R.
William E. Bearss, on the 9th day of February, 1874, assigned the certificates to George R. Bearss, to whom, upon said certificates, on the 19th day of February, 1874, patents were issued by the State of Indiana, for the lauds desciibed in the complaint, which patents were recorded on the 24th day of October, 1874. George R. Bearss and wife, on the 22d day of October, 1874, conveyed said land, to the appellant by a deed of warranty, which was duly recorded November 2d, 1874, and by which the appellant claims title to the land. .
The appellee Walker derives title as follows:
William E. Bearss and his wife, on the 28th day of August, 1869, while he was owner of the land by virtue of the certificates assigned to him by Thompson, mortgaged the land described in the complaint to the appellee Walker, to secure the payment of $1,051, with interest, which mortgage was recorded in Fulton county on the 2d day of September, 1869. Walker commenced proceedings on the mortgage in December, 1873. At the October term, 1874,
Upon the finding of these facts, the court stated several conclusions of law on the different questions arising in the case, which we need not set out here, as we think they all fall within the final conclusion, numbered 10, which is:
“That the defendant Isaac C. Walker is the owner of the lands which constitute the subject of this action, and is entitled to possession of the same, and that, as to him, the deed to the plaintiff is of no avail.”
The appellant excepted to the conclusions of law upon the finding, and also moved for a new trial, which motion was overruled, and exceptions reserved. Judgment for Walker, for possession of the land, and' for costs. Appeal.
The counsel for appellant discuss the following questions in their brief:
1. That the court erred in overruling the motion to remand the cause to the justice of the peace.
The counsel’s argument is, that the complaint of the appellant against Levacy, without' any written answer having been filed to it by Levacy, does not put the title
It may he answered to this, that the appellant made no objection, to admitting Walker as a defendant to the action; and we can not see anything on the face of Walker’s answer, nor anywhere in the case, to show us that he was improperly admitted; and, hy Walker’s answer, it appears clearly that the title to the land described in the complaint was “put in issue by plea-supported by affidavit.” It follows, that the court did not err in refusing to remand the case. Wall v. Albertson, 18 Ind. 145.
2. That the court erred in overruling the demurrer to the counter-claim of Walker.
The argument made in support of this point is, that Walker’s title was simply an equitable one, and that an equitable title will not support an action in ejectment.
We do not see why Walker’s title was not sufficient to maintain his possession. It is true that the title of William E. Bearss to the lands, when-he made the mortgage to Walker, Avas merely equitable ; but an equitable interest in lands may be mortgaged. Westfall v. Stark, 24 Ind. 377; Calvert v. Landgraf, 34 Ind. 388.
The legal title passed into George R. Bearss when he received the patents for the land, but his legal title was subject to Walker’s mortgage. William conveyed nothing more to George than his equity of redemption in the lands, against Walker’s mortgage, and George conveyed nothing by his deed to the appellant, except the same equity of redemption. At the time Walker commenced proceedings to foreclose the mortgage, the legal title to the land was in George R. Bearss, Avho was made a party defendant to the proceedings, and the-appellant, had constructive notice,
But it is urged that George R. Bearss was not a party to the suit for foreclosure. We think he was. He was summoned, appeared, and demurred to the complaint. It is true, the case went off as to him on his demurrer*, before the final decree was rendered, because the court held that he was not bound to Walker, upon another ground, namely, as the grantee of William E. Bearss; but he had the opportunity to defend against the mortgage, and to redeem the land from its lien before the final decree. He did neither, and must be held as bound by the record. Besides, George took the assignment of the certificates from William during the pendency of the suit, and therefore had notice of it as a lis pendens.
After the cause was certified by the justice to the circuit court, that court was not limited to the jurisdiction of the justice, as in ordinary appeals. It had the case as if it had been originally commenced therein; and it was not neces
8. The appellant’s counsel also discuss the conclusions of law as stated by the court. If we are right in holding that the counter-claim of Walker was sufficient, and that he had a sufficient title in the lands to entitle him to possession, we will not be mistaken in holding that the conclusions of law, as stated by the court, are correct.
4. The admission of certain assignments of the land certificates as evidence at the trial is complained of as error; but these questions are not presented by the record. They could be presented only by a motion for a new trial in which they were assigned as causes. Indeed, in this case the motion for a new trial presents no question of evidence at all. The causes assigned are as follows .
“ 1. Because the findings of the court are contrary to law;
“2. That the conclusions of law are not sustained by the findings upon the facts;
“8. That the conclusions of law are contrary to the finding upon the facts.”
As these causes do not present the questions of evidence discussed, wre can not decide them.
5. It is also claimed on behalf of the appellant, that the1 court, on the motion made by appellant, should have-rendered “judgment for the plaintiff, notwithstanding the-finding for the defendant,” upon the ground that the appellant had a legal and sufficient title to the land, and. Walker only the equitable title. As we have held that Walker had the legal title, and -was entitled to recover the;
The judgment is affirmed, at the costs of the appellant.
Rehearing
On petition por a rehearing.
— No questions except those considered in the original opinion have been argued on the petition for a rehearing, but they have been more fully discussed
1. It is insisted, that William E. Bearss had no mortgageable interest in the lands, at the time he and his wife executed the mortgage to Walker; that, as he had no leviable interest in the lands at the time, he therefore had no mortgageable interest in the lands.
But it does uot follow, because William E. Bearss, at the time the mortgage was executed, had no interest in the land which could be levied upon at law, that, therefore, he had no interest therein that he could mortgage in equity. lie had an interest which he could sell and assign, and what can be sold and assigned can be mortgaged. Besides, whatever we might decide if the question w*as one of first impression, we are constrained by the authorities of our own court, cited in the opinion, to hold that an equitable interest in lands can be mortgaged.
2. It is also contended that the appellant was not affected by the lis pendens at the time he purchased 'the land. We think he was. and that George R. Bearss, his vendor, and William E. Bearss, the vendor of George, were also affected by the lis pendens; and, being so affected, neither vendee in the line of title could take any more
3. It is further urged that the action being in ejectment, and Walker holding nothing more than the equitable title which William E. Bearss conveyed to him by the mortgage, he therefdre could not maintain an action in ejectment. We need not decide that Walker held the legal title, for we have decided at the present term, in the case of Burt v. Bowles, ante, p. 1, that any person, under section 592 of the code, having a valid subsisting interest in real property, whether legal or equitable, which entitles him to the possession thereof, may recover the same in an action of ejectment. At all events, after the foreclosure of the
Upon full consideration, we overrule, the motion for a rehearing.