54 Ind. 599 | Ind. | 1876
Louise Clements, wife of Converse Clements, owned a certain lot in the city of Evansville, Indiana; and on the 18th day of May, 1873, mortgaged it, her husband joining in the mortgage, to Samuel E. Gilbert, to secure a debt of four thousand dollars. The debt was not paid, and, at the April term of the Vanderburgh circuit court, 1874, the mortgage was foreclosed; and, on the 18th ■ of July, 1874, the lot mortgaged was sold by the sheriff, on the decree of foreclosure, to said Gilbert, who received the proper certificate of purchase, and, on the 1st of May,
The .execution defendant, Mrs. Clements, was in possession of the property when she mortgaged it, and she continued in possession till the year for redemption after the sale expired, and is still in possession, her husband making his home with her on the premises.
At the November term, 1875, appellee commenced suit for the possession of the property. He set out the history of his title in his complaint, made the mortgage foreclosure proceedings a part of it, and demanded judgment for possession, and for damages and rents.
Several demurrers to the complaint were filed and properly overruled. The complaint was sufficient as to both appellants.
The appellants severally moved for a new trial, on the two grounds, that the judgment was not sustained by the evidence, and that the damages were excessive.
The motions were overruled.
The overruling of these several motions is assigned for error.
The judgment for possession against both defendants was right, and must be affirmed.
As to the judgment for damages, the wife, the female appellant, was a judgment debtor, whose land had been sold on execution; the husband was not. And the statute enacts, 2 R. S. 1876, p. 220, sec. 2, that “ * * * . The judgment debtor shall be entitled to the possession of the premises for one year after the sale, and in case they are not redeemed at the end of the year as provided in this act, he shall be liable to the purchaser for their reasonable rents and profits.”
Under and by force of this provision of the statute, the female appellant, notwithstanding her coverture, was liable to the appellee for the rents and profits of the property for the year for redemption, and such reasonable time
But as to the male appellant, as he did not occupy under the statute as a judgment defendant, but only by the sufferance, and as the companion, of his wife, he can not be charged under the statute for rents and profits, and the judgment for damages against him is erroneous.
We think, under the provision of the act, in our code, for the recovery of the possession of real property, contained in section 600,2 R. S. 1876, p. 252, we can reverse the judgment in the case as to one and affirm as to the other defendant. It reads thus: “Where there are two or more plaintiffs or defendants, any one or more of the plaintiffs may recover against one or more of the defendants, the premises or any part thereof, or any interest therein, or damages according to the right of the parties; but the recovery shall n,ot be for a greater interest than that claimed. See also, see. 366, 2 R. S. 1876, p. 185.
The judgment for the recovery of possession is affirmed, as to both defendants, with costs. The judgment for the recovery of damages is affirmed against the female defendant, Mrs. Clements, but as to the male defendant, Converse Clements, the judgment for the recovery of damages is reversed, without costs.