99 Ind. 566 | Ind. | 1885
The appellant, Cooper, sued the appellee, Jackson, in a complaint of two paragraphs. The first paragraph was a complaint in ejectment, in the ordinary statutory form, for the recovery of certain real estate, particularly described, in Tippecanoe county. The second paragraph stated the appellant’s title to the same real estate, under a tax sale and •deed, and prayed for alternative relief, either that his title might be quieted, or that an account might be taken of the amount due him for taxes paid, etc., and the same declared to be and enforced as a lien on such real estate. The appellee’s
On the former appeal it was substantially held that a complaint to quiet the title to lands purchased at a delinquent tax sale, wherein it is averred, among other things, that the lands therein described had been, by mistake, entered upon the tax-duplicate and sold by a description so indefinite as to. convey no title thereto, but that such description was intended to apply to and cover the lands particularly described in the complaint, is sufficient on demurrer to entitle the holder of the tax deed under the tax sale to the remedy against the lands intended to be taxed and sold, provided in section, 257 of the act of December 21st, 1872, for the assessment and collection-of taxes. 1 R. S. 1876, p. 129. This holding has been approved and followed by this court in more recent cases: Sloan v. Sewell, 81 Ind. 180; Ford v. Kolb, 84 Ind. 198; Reed v. Earhart, 88 Ind. 159.
After the cause was remanded, appellee answered the second paragraph of appellant’s complaint in three paragraphs, of which the first was a general denial, and each of the other paragraphs stated a special or affirmative defence. Appellant’s demurrers to the second and third paragraphs of appellee’s answer having been overruled by the court, he replied thereto by a general denial. The issues joined were tried by the court, and a finding was made for the appellee on the complaint, and, also, upon appellee’s cross complaint which was filed before the former appeal. Over the appellant’s motion for a new trial, a judgment and decree were rendered by the court upon and in accordance with its finding.
In the second paragraph of appellee’s answer, “ to so much of the second paragraph of complaint as seeks a recovery of the amount which the plaintiff, in such paragraph, claims to-have expended in the payment of faxes, interest and penalties,” the appellee alleged that, on the 14th day of February,. 1868, one Samuel Moore then the owner of the land in controversy, upon which the appellant was seeking to establish a lien, mortgaged such land to the appellee to secure the payment of a sum of money then owing by said Moore to appellee for purchase-money; that afterwards, on February 15th, 1870, the appellee brought suit in the common pleas court of Tippecanoe county to foreclose said mortgage, and such proceedings were thereafter had in that behalf, that, on April 1st, 1870, a judgment' and decree for the foreclosure of said mortgage, and the sale of such land were duly rendered ánd entered; that afterwards, on February 7th, 1876, pursuant to a sale of such land by the sheriff of Tippecanoe county, under an order of sale issued on such judgment and decree, and on failure of- redemption from- such sale, the then sheriff of the county executed a deed of the land to the appellee, who thereupon went into possession of the land as owner thereof; that prior to the rendition of such judgment and decree, the said Samuel Moore sold and conveyed his equity of redemption in such land to one Zachariah T. Moore, but
Of this paragraph of answer appellant’s counsel say that it “ only pretends to answer a part of the second paragraph of plaintiff’s complaint, and is bad on that account, and for not being an answer to the whole of the complaint.” This objection to the paragraph of answer is certainly novel, but it
It is further claimed by appellant’s counsel that Shoemaker’s agreement to assume and pay off appellee’s mortgage on the land was invalid and inoperative, because, it is said, the second paragraph of answer showed that the mortgage had been theretofore merged in the judgment and decree of foreclosure. Counsel say: “ There could have been no mortgage debt to pay off after the decree of foreclosure, for it was then merged in the judgment.” We think, however, that the debt was none the less a mortgage debt, and might properly be described as such after as well as before the judgment and •decree of foreclosure. In Teal v. Hinchman, 69 Ind. 379, it was held by this court that a mortgage is not so merged in a judgment of foreclosure as to defeat the lien of the mortgage. Surely, it can not be correctly said that the debt secured by a mortgage is so merged in the judgment and decree of foreclosure that it can no longer be-described, accurately and appropriately, as a mortgage debt.
Appellant’s counsel also insist that the allegations of the second paragraph of the answer do not show with sufficient clearness and certainty, that the taxes for which the land was sold and conveyed to the appellant, and which he is seeking to have declared a lien upon the land and to recover back in this suit, were either the taxes which Shoemaker had assumed and agreed to pay off, or the taxes which had been assessed against the land while Shoemaker was the owner and in possession of the land, and in receipt of the rents and profits
In either event, it was incumbent on Shoemaker to pay off and discharge the taxe's assessed against the land out of his own proper means. This was his duty, either under his contract of assumption or as owner of the equity of redemption, under his deed thereof from Zachariah T. Moore, to pay and satisfy such taxes; and he could not, in violation of such duty, by allowing such taxes to become delinquent, and by purchasing the land on account thereof, acquire a title to the-land or a valid lien thereon, as against the mortgagee. In his excellent Treatise on the Law of Taxation, on p. 345, Judge Cooley says: “ Some persons, from their relation to the land or to the tax, are precluded from becoming purchasers. The title to be transferred on such a sale is one based on the default of the person who owes to the government the duty to pay the tax. But one person may owe this duty to the government,.
We are of opinion that the allegations of the second paragraph of answer show, with sufficient certainty, that Shoemaker could not and did not by his purchase of the land in controversy, at the tax sale thereof, acquire any title to or lien upon such land, which he could enforce either at law or in equity as against the appellee. This being so, as it surely is, it. seems clear to us that the appellant, under Shoemaker’s assignment of his tax certificate of the sale of the land for taxes, made by his agent by his procurement and at his instance, and under the tax deed executed in pursuance of such assignment, acquired no other, different or better title to or lien upon the land than Shoemaker or his agent had thereto or thereon prior to such assignment. The assignee can take
Our conclusion is, therefore, that the court did not err in overruling appellant’s demurrer to the second paragraph of appellee’s answer.
Appellant’s counsel also claim that the court erred in overruling the demurrer to the third paragraph of appellee’s answer. We think this error is well assigned. If the opinion of this court, on the former appeal of this cause, in holding the second paragraph of appellee’s complaint to be sufficient on demurrer, is good law, and certainly it is the law of this case, then the third paragraph of answer is hopelessly bad on demurrer, for practically the appellee sought to ■ present, by his third paragraph of answer, the precise question which this court, on the former appeal, had decided against him. Indeed, appellee’s counsel virtually concede, as we understand them, that if the former opinion of this court is adhered to, then the third paragraph of answer was bad, and the demurrer thereto ought to have been sustained.
Appellee’s counsel earnestly insist, however, that the second paragraph of answer states his defence to this action, and that this defence was fully and completely sustained by the evidence appearing in the record. In this view of the case we concur with appellee’s counsel. We think that the error of the court, in overruling the demurrer to the third paragraph of answer, did not affect the substantial rights of the appellant, and “that the merits of the cause have been fairly tried and determined in the court below.” In such a case, and for such an error, the statute forbids that the judgment be “reversed in whole or in part.” Sections 398 and 658, E. S. 1881.
The judgment is affirmed, with costs.