41 Ind. 399 | Ind. | 1872
—This was an action commenced by the appellee against the appellants, to establish and enforce his right to redeem certain real estate, which had been sold by
The proceedings under the first order of sale issued are immaterial, as the sale made under that order was set aside. Langsdale v. Mills, 32 Ind. 380.
Upon the second order of sale, which was issued at the instance of Gay, the property was sold and purchased by Gay, realizing an amount sufficient to pay only his judgment. Gay received the sheriff’s certificate, which he assigned to the appellants. Langsdale has received no part of the amount due him on his part óf the mortgage debt. Within a year from the time of the sheriff’s sale, Langsdale paid to the clerk the amount of the bid of Gay, with ten per cent, thereon, for the purpose of redeeming the property, and the clerk made an entry showing the redemption.. The appellants, however, disregarded the redemption, and5 procured the sheriff to execute to them a deed, in pursuance-of the' certificate of purchase so assigned to them by Gay,, etc. It is stated that Bond is insolvent.
The question is, has Langsdale a right to redeem the-property, under the statute of 1861? The first section of that act is as follows: “That whenever, hereafter, any real1 property, or any interest therein shall be sold on any execution or order of sale issued upon any judgment, decree or other judicial proceeding within this State, the owner thereof, his heirs, executors, administrators, or- any mortgagee or judgment creditor having a lien upon the same:
The position assumed by the appellants, as stated in the brief of counsel, is, that Langsdale, the appellee, does not come within this statute, because he was himself a judgment 'and execution plaintiff, and, therefore, not authorized to redeem from his own sale, and also because he was neither “a mortgagee nor a judgment creditor having a lien,” within the meaning of this statute.
We are inclined to give a liberal construction to this statute. The object of its enactment was to prevent the sacrifice of real estate when sold at sheriff’s sale, by allowing it to be redeemed by the owner, or his heirs, executors, or administrators, or by any mortgagee or judgment creditor having a lien upon the same, within the year.
In The State Bank v. Tweedy, 8 Blackf. 447, the rights of parties holding notes secured by the same mortgage, first came before this court, and it was then said by the learned judge who delivered the opinion, after alluding to-the fact that it was a question for the first time before the court, and after a reference to authorities: “It cannot be stated then, as a general proposition, that in this State, the assignment of any one of the notes secured by a mortgage, carries with it, either pro rata or pro tanto, a corresponding portion of the mortgage security; but, as appears from what has been said, the effect of such assignment is to carry a pro tanto interest in that security subject to the paramount claim of notes previously due. The different instalments in a mortgage, when secured by corresponding notes, may be regarded as so many successive mortgages, each having priority according to its time of becoming payable.” Many
In Crouse v. Holman, 19 Ind. 30, it was held by this court that a judgment of foreclosure on one of the notes secured by a mortgage could not be pleaded as' a bar to a subsequent suit on the same mortgage to enforce payment of another note, because the notes might properly be considered as so many successive mortgages and successive causes of action. See, also, Sample v. Rowe, 24 Ind. 208.
In the case under consideration, Langsdale was made a defendant, and set up his notes. A personal judgment was rendered in favor of Gay against Bond, and an order was made for the foreclosure of the mortgage as to the note held by Gay. Upon the cross complaint or answer of Langsdale, a judgment was rendered in his favor foreclosing the mortgage as to the notes held by him. In the case of Langsdale v. Mills, supra, this court held that, owing to the peculiar form of the judgment of foreclosure, there could be no sale to satisfy the notes held by Langsdale until after Gay’s judgment was satisfied, and hence the first sale was set aside. It is clear, we think, that at any time before the sale, Langsdale might have redeemed by paying off the note held by Gay, according to the principles of equity, independent of the statute of 1861. Murdock v. Ford, 17 Ind. 52. Is there any reason why he may not do so after the sale, under the statute? He comes fully within the letter of the statute of 1861, authorizing a redemption of the land. He is a judgment creditor having a lien upon the same. He has a lien upon the land as fully as any other junior incumbrancer by judgment has. It is true that there has been a sale of the land, but the title is not passed by such sale. The title passes when the deed is made. Upon a redemption of the land the liens are not displaced or affected, except that the party redeeming has a lien for the amount paid to redeem. Section 3 of the act of 1861, and The State, ex rel Allen, v. Sherill, 34 Ind. 57. A sale, with a conveyance made after the-expiration of the year from the date of the sale,
We think we need not decide or examine the question, discussed by counsel, whether the judgment merges the mortgage or not, as Langsdale had a lien either by the mortgage or by the judgment. We think we ought to hold that, under the circumstances, the claim of Langsdale was so far separate and distinct from that of Gay that he is entitled to exercise the right to redeem, under the statute, aS' a junior incumbrancer. The case is unlike that where a sheriff has different executions in his hands in favor of different judgment plaintiffs, and sells on all the executions for the benefit of all the creditors. In that case each execution plaintiff can control his own execution, can allow the sheriff to sell upon it or not, and need not place himself in the position of one ordering and directing the sale if he does not wish to d,o so. In the case under consideration, this was not so. Gay, having the first and paramount claim, could order the execution of the judgment, and direct the time and manner of it, within the requirements of the law, notwithstanding anything that .Langsdale might or could do, and the sale, when made by his order, must, in consequence of the form of .'the judgment, be -made for the benefit of Langsdale, so
We cannot think that, under the circumstances, the sale to Gay can, in any fair sense, be regarded as the sale of Langsdale, when he was not asking or assenting to it, but was opposed to its being made, although the surplus of the proceeds, after paying the claim of Gay, had there been any, might have been applied on his claim. The little control which Langsdale had in the execution of the judgment, had he been disposed to exercise it, is shown by the case of Langsdale v. Mills, supra, in which it was held that under the decree as entered there could be no sale to pay the notes held by him until Gay’s notes were satisfied.
We have found nothing in the cases from other states, to which counsel have referred us, that has materially assisted us in the decision of the case. It depends almost entirely upon the language of the statute in question, while the cases to which we have been referred are based on statutes differently worded.
The judgment is affirmed, with costs.