87 Ind. 123 | Ind. | 1882
The appellee obtained a judgment in partition, setting off to her one-third in fee of certain real estate. The appellants, besides their answers to the petition of the appellee, filed a counter-claim, to which the court sustained a. demurrer, and this is the only ruling which we are asked to review.
The counter-claim is to the effect that John H. Reed, the husband of the appellee, was the sole owner in fee of the lands in question, and, in March, 1874, mortgaged the same to Mary Hawkins to secure the payment to her of two promissory notes, each for $500; that the appellee joined in the execution of this mortgage; that afterwards -John H. Reed executed two other mortgages upon the land, in the making of one of which only the appellee joined; that the first named mortgage was assigned to one of the appellants for the use of all of them; that in 1877 they caused an action for foreclosure to be brought in the Fayette Circuit Court against the-mortgagors and junior mortgagees, and such proceedings-were had upon the complaint and upon cross complaints filed by the junior mortgagees, that a decree of foreclosure of all of the mortgages was,duly entered against said John IT.. Reed, but that for reasons stated the decree, as against the appellee, was null and void; that, after the rendition of the: decree, the holders of the junior liens assigned them to one of the appellants for the use of them all; that upon a copy of the decree they caused the land to be duly sold by the sheriff, and one of their number, for their use, bid off the property in fee, for the entire amount due on the decree, and,,
If the facts alleged had been pleaded in bar of the petition, it is evident that the defence would have been complete; because, the first mortgage having been made by the husband on his land before the taking effect of the act of March 11th, 1875, the wife’s inchoate interest, even if she had not joined in executing the mortgage, is not affected by that act. McGlothlin v. Pollard, 81 Ind. 228; Helphenstine v. Meredith, 84 Ind. 1; Parkham v. Vandeventer, 82 Ind. 544; Lease v. Owen Lodge, etc., 83 Ind. 498.
It may be, as counsel for the appellee have argued, that, having bid off the land for the full amount of the decree, obtaining thereby the title of John H. Reed, and having taken no steps to set aside the sale, and the consequent satisfaction of the decree (if such steps were possible), the appellants can not now have a decree of foreclosure against the appellee; but, conceding, without deciding, this to be so, we think .it clear that, on the facts stated, the appellants were entitled to a determination of the relative rights of themselves and the appellee in the land ; that is to say, that they owned the entire land, subject only to her inchoate right to one-third in case she survived John H. Reed.
In an action for partition the respective claims or titles of the parties may be put in issue and determined. It follows that a counter-claim filed for that purpose is proper. Godfrey v. Godfrey, 17 Ind. 6; Martindale v. Alexander, 26 Ind. 104; Milligan v. Poole, 35 Ind. 64; Stafford v. Nutt, 35 Ind. 93; Schee v. McQuilken, 59 Ind. 269; Schafer v. Schafer, 68
Judgment reversed, with instructions to overrule the demurrer to the counter-claim.
