159 Ind. 317 | Ind. | 1902
— Appellee being the grantee of the purchaser at sheriff’s sale in a foreclosure proceeding, and being denied by the judgment defendant possession of a part of the premises purchased, upon notice and motion procured a redocketing of the foreclosure ease, and thereupon filed his petition for a writ of assistance. The undisputed facts .set forth in the petition are to the effect following: The foreclosure complaint was sufficient; appellant was the. sole mortgagor defendant, and was timely and duly, summoned to appear thereto; she did not appear, and a decree of foreclosure was duly entered against her, and a 'sale thereunder of the mortgaged premises was made by the sheriff to Milton Shirk, a judgment plaintiff, in accordance with the law and decree, March 19, 1898, for the full amount of the judgment, principal, interest, and costs. There was no redemption, and the year having expired March 21, 1899, a deed conveying the property was duly executed and delivered by the sheriff to the purchaser. Ten days after the conveyance to Shirk, and the record of his deed in the recorder’s office of the county, to wit, April 1, 1899, appellant, who had all the time since the rendition of the decree been a resident of the county, and possessed of knowledge of the decree and sale of her land, filed in the Miami Circuit Court her complaint against the judgment plaintiffs for relief against said decree and sale, for fraud of the plaintiffs in the procurement of the decree. During the formation of the issues in her case, upon motion of the defendants, she was summoned to appear and answer, under oath, certain questions to be propounded to her by the defendants touching the issues. She did appear and make answers which were taken down in shorthand, and when put in longhand she refused to subscribe her name thereto. Her refusal to sign was reported by the defendants to the
Appellant, in her answer, having admitted the foregoing facts, affirms that she had, at the time the foreclosure suit was commenced, and still has, a meritorious defense thereto, which she neglected to make, by the fraud of the plaintiffs, which defense she sets forth in detail, and that the reason she refused to sign her answers to interrogatories was because she was denied the privilege of first taking the longhand manuscript thereof with her to read over and submit to her attorney for his counsel; that after the dismissal of her suit for failure to obey the order of the court, to wit, on June 22, 1899, Shirk, the purchaser, conveyed the property by quitclaim deed to appellee Miller, who at the time of his purchase had knowledge of the fraudulent character of the judgment; that she refused, upon Miller’s demand, and still refuses, to surrender possession. There is no averment that she has or intends to renew the dismissed action, or take any other step for relief against said decree and sale. This action was commenced on the 11th day of October, 1899. The petitioner’s demurrer to the answer was sustained.
■ The assignment propounds for decision the' following questions: (1) Has the circuit court, sitting, as a court of equity, since the adoption of our practice code, power to issue the summary writ of assistance to put the purchaser at its foreclosure sale in possession? (2) If the power exists, can it, in any case, be invoked by the grantee of the purchaser? (3) Are the facts exhibited by the answer sufficient in equity to warrant a denial of the writ ?
I. Appellant, while conceding that courts of equity, under the old practice, had the power to employ the writ of assistance in the enforcement of their decrees, contends
Simplification of procedure may be said to be the full scope and purpose of the code. The statute does not pretend to, nor does it in any sense, abridge the inherent power of the courts, nor affect the rights of parties, or the remedies formerly given for a violation of those rights, further than to change, in some instances, the means by which the remedy may be obtained. Neither were the rules of law nor the principles of equity changed by blending in the same form of action, and by being permitted to run together through the same proceeding. Matlock v. Todd, 25 Ind. 128; Woodford v. Leavenworth, 14 Ind. 311, 314; Bliss, Code Pl. (3d ed.), §§5, 6, and note 17. Therefore, in the-absence of express limitation in the code, we find no reason for holding that those rules and principles, which long
There is no warrant for construing §1062 Burns 1901, as creating a specific and exclusive remedy for the recovery of possession of real estate under the modified system of pleading and practice. The similar but more formal remedy of ejectment is of very ancient origin, and coexisted with the writ of assistance for a long period before our code was thought of. Both remedies had been found necessary to the full administration of justice, the action of ejectment to courts of law for the settlement of controverted questions relating to possession and possessory titles; and the writ of assistance to courts of equity, in certain cases only, not in aid of their jurisdiction, but to enable them to carry out and make complete the execution of their decrees. Appellant’s counsel say in their brief: “As emphasizing our contention that the action for possession, provided in §1062, supra, is the only mode in which the possession of real property may be recovered, it is expressly provided in §1096 Burns 1901 that ‘the plaintiff shall be entitled to an execution for the possession of his property, in accordance with the provisions of this act, but not otherwise.’ ” We can not concede that the section quoted adds any strength to appellant’s argument, or that it is even pertinent. By reference to the original act (Acts 1881, p. 363) it will appear (1) that the word “act” in the last line should read “article,” — a mistake that found its way into the revision of 1881, and has been adopted by every subsequent compiler; (2) the section occurs under the article or subtitle of the code “Occupying Claimant,” and has special and exclusive reference to the conditions upon which the successful plaintiff against the occupying claimant who has improved and enhanced the value of the real estate may have execution for possession.
It is true, in this State we have no longer such a thing as a strict foreclosure of real estate mortgages, such as existed when writs of assistance had their origin, but the underlying principles of the writ remain unchanged. In a strict foreclosure, upon default, the mortgagor was given by the decree a specified time in which to redeem. If he failed to do so within the time fixed, the sale was made by the court’s master or commissioner, and effected an abso
A sale so made is a judicial sale, and the deed of the sheriff executed in pursuance thereof is as effective and conclusive as a conveyance of the title as when vised and approved by the- chancellor. “It is usual,” says Fields, J., in Montgomery v. Tutt, 11 Cal. 190, “to insert [in the decree] a clause * * * [that possession be delivered to the purchaser], but it is not essential. It is necessarily implied in the direction for the sale and execution of a deed. The title held by the mortgagor, passes under the decree to the purchaser, upon the consummation of the sale by the master’s or sheriff’s deed. As against all the parties to the suit, the title is gone; and as the right to the possession, as against them, follows the title, it would be an useless and vexatious course to require the purchaser to obtain such possession by another suit.”
Moreover, under our present procedure, when the rights of the mortgagor and mortgagee to the pledged property
A writ of assistance is a summary proceeding, and does not admit of a trial of any bona fide question as to the right of possession. Any such question that exists by reason of anything not concluded by the original decree, or
II. There is some diversity of opinion in the American courts as to the right of a grantee of the purchaser to the writ, and a few cases go to the extent of holding that a purchaser not a party to the record will be denied the writ. But as said in the text of Encyclopaedia of Pleading and Practice (Vol. 2, 978) : “According to the weight of modem authority, it will be awarded in favor of the grantee of such purchaser! See Ekings v. Murray, 29 N. J. Eq. 388; Ketchum v. Robinson, 48 Mich. 618, 12 N. W. 877; Gibson v. Marshall, 64 Miss. 72, 8 South. 205; Brown v. Betts, 13 Wend. 29; McLane v. Piaggio, 24 Fla. 71, 3 South. 823; Langley v. Voll, 54 Cal. 435 ; New York Life Ins. Co. v. Rand, 8 How. Pr. 35; Root v. Woolworth, 150 U. S. 401, 14 Sup. Ct. 136, 37 L. Ed. 1123; Beach, Mod. Eq. Pr., §§898, 900.
It is clear that a transfer of title will not enlarge the rights of the transferee, nor impair any right to resist the writ, possessed by the tenant in possession against the original purchaser, but we perceive no reason why an assignee or vendee is not entitled to the same relief that his vendor could have asserted. We therefore hold that appellee, having received and exhibited his deed to appellant, and made demand upon her for possession before filing his petition, stood in the shoes of his grantor, Shirk, and entitled to .the
III. Appellant concedes in effect that the foreclosure proceedings were regular, and sufficient to confer title upon the purchaser at the sheriff’s sale. Aside from the assumed want of power of the court to issue a writ of assistance, she grounds her defense to the writ solely upon a latent infirmity in the record, existing by reason of the plaintiff’s fraud in the procurement of the original decree. She also avers in her answer that after appellee’s grantor had received the sheriff’s deed, and had made demand upon her for possession, she brought an action against the original judgment plaintiffs, setting forth the fraud by means of which the plaintiffs procured their decree, and prayed the court for a nullification of the decree and sale made thereunder, and that subsequently the court dismissed her said action for her failure and refusal to obey the order of the court to subscribe her deposition. At the time this petition and answer thereto were filed, appellant had pending no action to be relieved from said decree, and in her'answer she stated no purpose-or intention to renew or bring such an action.
Appellant, being in possession, relies upon her right to remain passive and to make her resistance whenever the plaintiffs attempted to consummate their alleged fraud by dispossessing her; and she cites Brake v. Payne, 137 Ind. 479, and other cases of that class, in support of her position. Her answer to the petition proceeds upon the theory that a party against whom a fraudulent judgment has been rendered, may ignore the judgment, though fair upon its face, for an indefinite period, and successfully defeat the process of the court whenever put in operation against him, without any affirmative action on his part to have the judgment declared invalid. Such is not the law, nor the hold-! ing in the cases referred to. In the Brake case the defrauded ‘judgment defendant became the aggressor and brought his action to enjoin the levy of execution and en-,
It makes no difference in the conclusiveness of a judgment or decree that the same has been procured by fraud. Unassailed, it stands as a verity. If the injured party wishes to be relieved from its forces and effect, he must take some proper step to bring the question of his wrong before the court that imposed it for correction. “A party against whom an unauthorized or inequitable judgment has been obtained,” continues Justice Mitchell, “whether by fraud or mistake, can not treat the judgment as invalid until he has taken some proceeding, known to the law, to set it aside, or to secure its modification. Methods for obtaining a new trial, or to review a judgment for material new matter, or for error of law, are pointed out by the statute, and beyond the methods thus prescribed, courts possess inherent power, to an almost unlimited extent, to redress wrongs by modifying or setting aside judgments obtained by fraud or mistake. These methods, however, all contemplate proceed-" ings in the case in which the unauthorized judgment is alleged to have been obtained. They give no countenance to the notion that a judgment, however wrongfully ob
In his section 334 Freeman states the same principles thus: “A party to a judgment feeling himself aggrieved thereby may, in a proper case, either move that it be vacated, or prosecute an appeal or writ of error, or maintain a suit in equity to enjoin its enforcement. These, unless the judgment is void on its face, are the only remedies open to him, and if he resorts to neither, or resorting to any or all he is denied relief, he can not avoid the judgment, when offered in evidence against him, by proving that it ought not to have been pronounced, and was procured by fraud, mistake, perjury, or collusion, or through some agreement entered into by the prevailing party, and which he neglected or refused to perform.” Freeman, Judg. (4th ed.) §334. See, also, Bruce v. Osgood, 154 Ind. 375, and authorities there collated.
Mrs. Emerick has not brought herself within this well established rule. With full knowledge, as she avers, that the court had entered a decree foreclosing her rights in, and ordering a sale of her property for payment of the plaintiff’s debt, and that the sale had been made, and the property purchased by Shirk, one of the plaintiffs, she permitted the year for redemption to expire, and the sheriff to convey the property to Shirk. More than this: After Shirk had recorded his deed and demanded and taken possession of part of the property under his sheriff’s deed, she instituted her action in the proper court, challenging the
Exceptions were saved to the overruling of motions which present the same questions as above decided, and they are not therefore considered.
Judgment affirmed.