160 Ind. 70 | Ind. | 1903
Appellants filed a complaint in two paragraphs, to each of which the court sustained a demurrer, and the questions presented are as to the sufficiency of said paragraphs.
The first paragraph of complaint charges that appellants and one J ohn O. Tibbits, the deceased husband of appellee, exchanged certain lots, respectively owned by them, by deeds executed on April 21, 1896; that, as a part of the consideration for said transfer, it was agreed that said John O. Tibbits should pay the taxes that had then accrued on the lots conveyed to him; that he subsequently refused so to do, and that appellants, in order to protect their property from sale, were compelled to and did pay said taxes, amounting to $200.20; that subsequently the First National Bank of Marion, Indiana, recovered a judgment against said John O. Tibbits, in the Grant Circuit Court, and on the 7th day of April, 1898, caused an execution to issue thereon to the sheriff of said county; that in August, 1898, said J ohn C. Tibbits died intestate, leaving appellee as his widow and sole heir at law; that on the 8th day of September, 1898, said sheriff levied said execution upon the lots so conveyed to said J ohn C. Tibbits, and, on the 22d day of October, 1898, sold the same to the judgment plaintiff in said action, and executed to it a certificate of sale; that on the 18th day of October, 1899, said judgment plaintiff sold and transferred said certificate, by written assignment thereon, to appellee, who afterwards obtained a sheriff’s deed for said lots, “and still holds the same by virtue there*of, and not otherwise.” Prayer that appellants be subrogated to the former lien for taxes, and that the same be foreclosed against the property so held by appellee.
The second paragraph of complaint alleges the same facts as the first, except that it does not allege the obtaining of a judgment by said bank, and omits all allegations as to the proceedings thereunder, and further alleges the following facts; That immediately after the death of said John O.
It will be observed that the first paragraph of complaint does not allege or show.that appellee had any notice, actual or constructive, of the claim or lien of appellants at the time she purchased the sheriff’s certificate, or when she took the deed for the property. "We do not even find an allegation in this paragraph that John C. Tibbits was the owner of the lots at the time the execution issued or at his death. The allegation is distinct that appellee holds the lots by virtue of the sheriff’s deed and not otherwise. But even if we assume from the fact that the judgment was against John C. Tibbits, that it was his interest in the lots that was levied upon and sold by the sheriff, yet, if the sale was valid, it must be presumed, in view of the silence of the paragraph upon material matters, that she acquired the title under which she holds free from any prior secret equity. Pugh v. Highley, 152 Ind. 252, 44 L. R. A. 392, 71 Am. St. 327; Union, etc., Ins. Co. v. Dodds, 155 Ind. 365.
The position is taken by appellants’ counsel, however, that the proceedings of. the bank subsequent to the judgment were invalid, because of the provision of the decedents’ act, prohibiting the institution of proceedings before the end of one year- from the death of the decedent to enforce the lien
Judgment affirmed.
