34 Ind. App. 353 | Ind. Ct. App. | 1905
This was an action commenced and tried in the Randolph Circuit Court by Solomon J. Carrier against Isaac Borror and Sarah R. Borror. The complaint is in three paragraphs; the gist of the first two being to foreclose a vendor’s lien, and the third to set aside a deed from Isaac Borror to Sarah R. Borror as fraudulent.
The principal facts averred in the first paragraph are, that prior to September 27, 1887, appellee was the owner of a certain eighty-acre tract of land, described, in said county of Randolph; that on said day he sold and conveyed the same to said Isaac Borror for $3,300; that when said real estate was so conveyed it was encumbered, and said Isaac Borror assumed said encumbrance and paid some cash, leaving a balance of about $1,500 of the purchase money, for which said Borror gave three promissory notes; that on October 12, 1887, Isaac and Sarah R. Borror executed a mortgage on said real estate to one Scott to secure the payment of $2,500; that said Scott sold and assigned said mortgage to one Roe, who at that time held a junior mortgage on said real estate to secure the payment of $1,100; that said Roe brought suit to foreclose said mortgages, and appellee, claiming to hold a vendor’s lien on said real estate to secure the payment of his said $1,500 of pur
The third paragraph avers the execution of the notes in suit; that on the 13th day of September, 1895, Isaac Borror was the owner of seventy acres of real estate (describing it); that on said date there was a mortgage of $-on the same; that on the 19th of March, 1898, Isaac Borror conveyed said real estate to appellant, who was his wife, without any consideration having been paid by appellant or received by said Isaac; that appellant took and accepted said conveyance without paying any consideration therefor, nor has she since paid anything thei’efor, and with full notice .and knowledge of all the facts, and with full notice and knowledge that appellee so held the notes, and that they were unpaid; that Isaac had not at the time of said conveyance, nor has he since had, nor has he now, sufficient property subject to execution to pay his debts, and especially to pay appellee. Prayer, demanding judgment against Isaac Borror, and that the deed from Isaac to appellant be declared void as against the claim of appellee, and that said real estate be subject to sale, etc. Separate and several demurrers were addressed to each paragraph, for want of facts, and overruled.
Appellants then answered in three paragraphs — the first a general denial. The second was to so much of the first and second paragraphs of complaint as sought to foreclose
The third paragraph of appellants’ answer sets out the same facts substantially as averred in the second paragraph, and, in addition thereto, avers that the said complaint of Roe and cross-complaint of Carrier wrere filed in the same cause and case of Roe v, Borror ci al.t and that
Appellee then demurred to the second and third paragraphs of appellant’s answer, which was sustained.
This canse was submitted to the court for trial, and, at the request of appellants, special findings of fact and conclusions of law thereon were hv the court found and submitted.
The facts, as found by the court, in brief, are: That on July 14, 1S94, Isaac Borror was the owner in fee of 146 acres of land; that on said clay one Roe was seeking to foreclose a mortgage on said land; that appellee was defendant and cross-complainant; that appellee was claiming a vendor’s lien on part of said land, and asking to have it foreclosed; that in said proceedings judgment was had by Ro.e foreclosing his mortgage as the first lien thereon; that ap
“(1) That the sum of $1,550, the amount due the plain*364 tiff for principal and interest and attorney’s fees, due upon his said notes, constitutes and is a lien upon said real estate conveyed to Sarah R., Borror, as set out and found in the foregoing facts, and was a lien upon and against said real estate at the time of said conveyance, and was and is a valid lien against the defendants and each of them at the time of said conveyance, and at all times since. (2) That the plaintiff is entitled to recover of and from the defendant Isaac Borror, ripon the notes sued upon in this action, the sum of $1,550, and to have and foreclose against said defendants, Tsaac and Sarah R. Borror, and each of them, and against the said real estate conveyed hy said Isaac Borror to said Sarah R. Borror, as found in the foregoing facts, a vendor’s lien for said sum. (3) That the conveyance of said real estate, as found in the foregoing facts, by the defendant Isaac Borror, to the defendant Sarah R. Borror, was and is fraudulent and void as to the plaintiff. (4) That the plaintiff is entitled to a decree against the defendants, and each of them, setting aside the said conveyance of said real estate by said defendant Isaac Borror to defendant Sarah R. Borror, as found in the foregoing facts, and to have the said real estate sold for the payment of the sum due him upon the notes in suit.” Judgment in accordance with finding of facts and conclusions of law.
Appellant Sarah R. Borror, by her motion to modify the judgment, sought to eliminate that part of the judgment and decree establishing and enforcing a vendor’s lien and sale of the land. This motion was overruled. Motion by appellants for a new trial overruled. The first five and the twelfth errors here assigned by the appellants question the sufficiency of the complaint, and will be considered together.
A vendee in possession of land takes it charged with an equitable lien in favor of the vendor to secure the balance of the unpaid purchase money. This rule holds good not only as against the vendee and his heirs, “but also' against all subsequent purchasers having notice that the purchase
“Equity regards substance rather than form, and that as done which ought to have been done.” Otis v. Gregory (1887), 111 Ind. 504; Hawes v. Chaille (1891), 129 Ind. 435.
Appellants rely on the case of Pence v. Armstrong (1884), 95 Ind. 191, in which the court incidentally refers to the case of Fishback v. Badman & Co. (1878), 14 Bush (Ky.) 117, as deciding “that a judgment for purchase money merges the equitable vendor’s lien.” We have examined the Fishbaclc case, and nowhere do we find such doctrine stated. We do find, in the reporter’s notes, as points relied on by counsel, a statement to that effect.
In the case of Pence v. Armstrong, supra, the question before the court was the right of replevin bail to subrogation, and not a question between vendor and vendee as to unpaid purchase money, and no intimation by the court of
In our judgment a foreclosure of a vendor’s lien, and sale of the property on decretal order issued on acount of such foreclosure, and not redeemed from during the year for redemption, defeats the lien as to any unsatisfied part of the judgment or debt. Yetter v. Fitts (1887), 113 Ind. 34. This is upon the theory that the purchaser at such sale is a bona fide purchaser for value. Where- a vendor prosecutes his action at law for the collection of unpaid purchase money, and causes an execution to issue on the judgment thus obtained,, and sells the land, 'he thereby will have waived his lien. Yetter v. Fitts, supra; 2 Jones, Liens (2d ed.), §1016. “A vendor’s lien, having once attached, can only be defeated by the voluntary act of the holder thereof, unless the rights of innocent purchasers, without notice, intervene.” Yetter v. Fitts, supra.
If we regard substance rather than form, the fact still remains that it is the same old debt for purchase money, whether in the form of a judgment, or evidenced by notes, and in either form it will be recognized and preserved by equity to prevent injustice. Eo new debt was created by the notes in suit, but the payment of the old debt was postponed, and Isaac Borror was thereby enabled to redeem his land. The averments in the answer do not overcome the allegations of the complaint as to the treatment of the judgment, and the purpose of its release, as agreed upon by Isaac Borror and appellee. Reeder v. Nay (1883), 95 Ind. 164; Boyd v. Jackson (1882), 82 Ind. 525. The demurrer to the answers was correctly sustained.
The judgment of the court below is affirmed.
Black, J., concurs in the result.