114 Ind. 350 | Ind. | 1888
John W. Caley, being in possession of a forty-acre tract of land in Huntington county of which he claimed to be the owner, brought this action against John Morgan, who asserted title to the same land, to have his title quieted. Morgan filed a cross-complaint stating the facts upon which he relied in support of his claim of title and demanding that his title be quieted.
The court heard the evidence and made a special finding of the facts, which may be briefly stated .as follows:
That, on the 25th day of September, 1872, one Canaan Ogle was the owner of a tract of land described in the complaint; that, on the 26th day of October, 1872, the said Ogle executed a mortgage on said tract of land to one Andrew Brandstrator to secure the payment of the sum of $600, payable six years and three months after said 25th day of September, 1872, which mortgage was duly recorded in the proper recorder’s office; that, on the 7th day of September, 1876, Ogle, by warranty deed, conveyed the same tract of land to Thomas L. Lucas, which deed was also duly recorded; that, on the 30th day of October, 1876, Lucas conveyed the land to one Andrew J. Kimmel; that, on the 19th day of March, 1879, Kimmel reconveyed one undivided
From the facts thus found the court came to the following conclusions:
First. That the plaintiff Caley was not entitled to the relief sought by him.
Second. That the defendant Morgan was the owner in fee simple of the land in suit, and was entitled to a judgment quieting his title thereto.
Over exceptions reserved to these conclusions of law, judgment was awarded in accordance with them, and the only complaint made here is as to the conclusions of law arrived at as stated.
As has been seen, both parties claim under Lucas, Caley relying upon a conveyance directly to him from Lucas, and Morgan upon a sheriff’s sale on a judgment against Lucas antedating the conveyance to Caley.
On Caley’s behalf it is insisted that, upon the facts found, the inference ought to be that the Huntington Circuit Court had no jurisdiction to render the judgment against Lucas in favor of Hendrix, first, because it was not made to appear that the cause of action was presented either by a formal complaint or a brief statement in writing which was filed and copied into the judgment, and, secondly, because it was affirmatively shown that no affidavit was filed stating that the amount for which judgment was confessed was justly due and owing, and that the confession was not made for the purpose of defrauding his, Lucas’, creditors, as required by section 588, R. S. 1881.
It is true that judgments by confession have all the qualities, incidents and attributes of other judgments, and can not be valid unless entered in a court which might lawfully have rendered the same judgments in a contested cause ; but it is equally true that judgments by confession are supported by the same presumptions which sustain other judgments when
The Huntington Circuit Court is a court of general jurisdiction, and the Hendrix judgment was one which that court might lawfully have pronounced in an ordinary action. When, therefore, Lucas submitted himself to the jurisdiction of that court, and confessed judgment for a specified sum, and that court assumed jurisdiction of the cause and proceeded to enter judgment for the amount admitted to be due, the presumption that all the preliminary steps had been taken which were necessary to confer jurisdiction ought to be indulged. Then, too, a judgment entered by confession without the filing of an affidavit as required by section 588 of the statutes is valid as between the parties. Freeman Judgments, section 557; Kennard v. Carter, 64 Ind. 31; Mavity v. Eastridge, 67 Ind. 211; Hopper v. Lucas, 86 Ind. 43. It is only as to creditors that a judgment so entered is void.
It is next claimed that authority to assign a judgment can not be conferred by a power of attorney, and that, at all events, the power of attorney from Hendrix to Milligan was inoperative, because it was not recorded in some record in the recorder’s office of Huntington county.
Any person capable of transacting his own business may appoint an agent to act in his behalf in all the ordinary affairs of life. In many cases the appointment may be by parol only, but may in any case bo in writing. For some purposes the. appointment must bo by a letter or power of attorney which makes the, agent an attorney in fact. A person thus appointed, however, is none the less the mere agent of the person appointing him. Story Agency, p. 2, paragraph 3; Ewell’s Evans Agency, p. 1; Roehl v. Haumesser, ante, p. 311.
A power of attorney is valid as between the parties, and for all ordinary purposes, without being recorded. It is only
There was, consequently, nothing in the facts, as the court found them, which restrained Hendrix from constituting Milligan his attorney in fact to sell and assign his judgment against Lucas, or which invalidated Milligan’s assignment of the judgment to Morgan.
It is further insisted that Caley, by his redemption of the land from the sheriff’s sale to Weaver, and by his purchase of the tax sale certificate from A. S. Purviance & Bro., acquired liens superior to the lien of the Hendrix judgment.^ and which perfected the title derived by him from Lucas. We know of no theory on which this claim can be sustained. It ignores, and, indeed, is in the face of Caley’s agreement to redeem the land from the sale to Weaver, and to pay the taxes due upon it, as a part of the purchase-money when he bought it from Lucas. In redeeming the land, as he did, and in purchasing in the tax certificate, Caley acted in the place- and as the representative of Lucas, and only paid what had become, for all practical purposes, his own debts. No lien, therefore, resulted to him from either one of those payments any more than would have accrued to Lucas if he had made them.
Where a person, under a legal, as well as an equitable, obligation to discharge an encumbrance, discharges it accordingly, he can not have such encumbrance kept alive for his benefit to the injury of another adversely interested. Bunch v. Grave, 111 Ind. 351.
When the land was redeemed by Caley from the sheriff’s sale to Weaver, it was simply remitted to the position it occupied before the sale. Teal v. Hinchman, 69 Ind. 379 ; Taggart v. McKinsey, 85 Ind. 392; Birke v. Abbott, 103 Ind. 1.
It is still further claimed that, after Morgan had purchased other lands from Lucas, on the 2d day of June, 1876, on
The cases cited by counsel on the subject of the merger of liens in fee simple or greater estates have reference to specific liens like mortgages, and not to general liens like those created by judgments.
Before the land was sold on the Hendrix judgment Caley might have raised the question of Morgan’s right to have execution on the judgment, and, in the event that such right had been sustained, then as to what property ought to have been first levied on to satisfy the judgment. Upon a merely voidable execution such questions can not be raised after a sale has been regularly made upon it. Sansberry v. Lord, 82 Ind. 521; Richey v. Merritt, 108 Ind. 347.
Caley was chargeable with notice of the existence of the Hendrix judgment and of the levy upon and sale of his land upon it, and however much his want of actual knowledge on these subjects is to be regretted, such want of actual knowledge affords him no ground of relief. Taylor v. Morgan, 86 Ind. 295.
Upon the facts presented we see no sufficient reason for holding that the execution under which Morgan claims was void. It was at most only voidable. Consequently, the sale
The judgment is affirmed, with costs.