141 Ind. 47 | Ind. | 1895
This was an action for partition and accounting, brought by the appellant against the appellees.
The court, at the request of the parties, made a special finding of the facts and stated its conclusions of law thereon.
It appears from the special finding, that appellant’s ward is the widow of Isaac E. Johnson, having married him in 1847; that Johnson, in 1862, bought the real estate in controversy, with other real estate, of one La-Rue, subject to large incumbrances, which he assumed and agreed to pay, as a part of the purchase-money. To indemnify his vendor, LaRue, against said incumbrances, he executed to him a mortgage on the real estate, in which his wife did not join; that soon afterwards, and without paying such incumbrances, Johnson sold the property in question and the other property, to one Heidlinger, for the consideration of $16,500, and agreed to convey said real estate to him by warranty deed. Heidlinger had no knowledge at the time nor afterwards until the bringing of this suit, that Johnson was a married man, but believed him to be unmarried. He had no knowledge' that said real estate was incumbered in any way. At the time of making the purchase Heidlinger paid Johnson $200 on said contract, and then procured the records to be examined, and discovered the incumbrance on the property. Johnson thereupon procured satisfaction to be entered of record of all of the incumbrances upon said property, the payment of which was secured by said mortgage to LaRue, except the mortgage executed by Harris and the mortgage executed by one Hobbs, both held by one Wilson, and the judgment of Ellis McAlpen & Co. It was thereupon arranged, said Johnson assenting thereto, that said Heidlinger, in order to obtain a clear title to the property, should obtain sheriff’s deeds thereto, under the mortgages held by Wilson, in addition
Upon the facts so found, the court stated its conclusions of law, to which appellant excepted at the time. The court below, in its conclusions of law, held that said
The appellant makes no complaint of the order in regard to the payment of the proceeds of sale, if appellee is entitled to be subrogated, as held by the court; but he earnestly contends that such right of subrogation does not exist in this case; “that an incumbrance once paid off by a purchaser of land, which he assumed and agreed to pay as a part of the purchase-money, is, by such payment, forever discharged; and that having once been extinguished, it can not thereafter be revived by the purchaser, or kept alive for his benefit; in a word the purchaser can not be subrogated to a lien which is once extinguished.” Citing Birke v. Abbott, 103 Ind. 1.
Appellee, on the other hand, claims “that Johnson and his wife as well took the property subject to all liens upon it at the date of his purchase, and that when Johnson conveyed to Heidlinger, by warranty deed, he at
It is clear, from the facts found, that if Johnson had died the owner of said real estate, without said incumbrances having been paid, his widow’s interest therein would have been subject to the lien of said judgments and mortgages. Nutter v. Fouch, 86 Ind. 451; Keith v. Hudson, 74 Ind. 333; Walters v. Walters, 73 Ind. 425; McCaffrey v. Corrigan, 49 Ind. 175; Fisher v. Johnson, 5 Ind. 492; Talbott v. Armstrong, 14 Ind. 254.
In such case she would be entitled to have one-third of said real estate if the two-thirds would pay the incumbrances, but if the two-thirds were not sufficient to pay the same she would only be entitled to what remained after the incumbrances were paid. Bowen v. Lingle, 119 Ind. 560.
This is the legal effect of the conclusions of law stated by the court, and the decree entered in this case.
If Heidlinger did not agree with Johnson to assume and pay the incumbrances as a part of the consideration for the real estate, it is not claimed by appellant that the conclusions of law and decree of the court are incorrect. Hancock v. Fleming, 103 Ind. 533; Birke v. Abbott, 103 Ind. 1; Adams v. Wheeler, 122 Ind. 251.
As we understand the special finding, Heidlinger did not agree with Johnson to assume and pay the incumbrances on the real estate as a part of the consideration therefor, nor did he in any way become primarily liable for the same. The arrangement made with the assent of Johnson that Heidlinger should obtain sheriff’s deeds and pay the incumbrances mentioned, was to protect and
In Dillow v. Warfel, supra, a husband and wife owned land jointly which was subject to a lien for purchase-money. The husband sold said real estate, representing to the vendee that he was authorized by his wife to do so, when in fact he was not. The vendee, as a part of the purchase-money, assumed and agreed to pay said vendor’s lien on said real estate, and in pursuance of his agreement paid
In Betts v. Sims, supra, one Betts, a married man, was the owner of a homestead which could not be conveyed or encumbered except by deed of both husband and wife. Betts and his wife executed two mortgages thereon amounting to $1,100. Afterwards Betts conveyed the real estate to one Bentley by deed, in which his wife did not join. Afterwards Bentley conveyed the real estate to one Brown, who assumed and agreed to pay said mortgages as a part of the purchase-money therefor. After the conveyance to him Brown mortgaged the premises to one Bidleman for $1,150, with the proceeds-of which he paid off and satisfied the two mortgages executed by Betts and wife. Brown then conveyed the real estate to Sims, who, in consideration thereof, assumed and agreed to pay said mortgage of $1,150, which he afterwards did, and the same was entered satisfied of record. The court held that no title passed by the deed of Betts to Bentley, for the reason that his wife did not join therein; that neither Bentley, Brown, nor Sims had any title to said premises; that Sims, believing in good faith that he owned said real estate, having paid off said mortgage, was entitled to be subrogated to rights of the mortgagees in the mortgages paid by Brown and to have the same revived and enforced for his benefit against the premises.
In James v. Burbridge, supra, it was held that when a purchaser of land, pursuant to a contract, pays as a part of the purchase-money, a lien on land binding his vendor’s estate in it, and such contract of purchase is aban
In Goring v. Shreve, supra, it was held that when a purchaser of real property assumes and agrees to pay incumbrances on said property, as a part of the purchase-money therefor, and does pay the same, believing in good faith that he is the owner of the real estate, when in fact he has no title, he is entitled to be subrogated to such incumbrances as are valid liens, and can enforce the same against such property.
Upon the same principle it is held in this and other jurisdictions, that purchasers at sales by executors, administrators, guardians, or trustees, or at foreclosure, etc., execution or other sales of like nature, or the grantees of such purchasers, will be subrogated to the rights of the holders of claims, which are paid by the purchase-money, or that they subsequently pay in good faith, in the event that the sale is ineffectual to convey title to the' property sold.
Watkins v. Winings, 102 Ind. 330; Willson v. Brown, 82 Ind. 471; Bodkin v. Merit, 102 Ind. 293; Bunting v. Gilmore, 124 Ind. 113; Blodgett v. Hitt, 29 Wis. 169; Levy v. Martin, 48 Wis. 198; Valle’s Heirs v. Fleming’s Heirs, 29 Mo. 152, 77 Am. Dec. 557; Hudgin v. Hudgins Exr., 6 Gratt. 320, 52 Am. Dec. 124; Caldwell v. Palmer, 6 Lea (Tenn.) 652; Martin v. Turner, 2 Heisk. (Tenn.) 384; Webb v. Williams, 1 Walkers Ch. (Mich.) 444; Min ing Co. v. Mining Co., 116 Ill. 170; Dutcher v. Hobby, 86 Ga. 198, 22 Am. St. Rep. 444; Everson v. McMullen, 113 N. Y. 293, 10 Am. St. Rep. 448; Scott v. Dunn, 1 Dev. & Bat. Eq. (N. C.) 425, 30 Am. Dec. 174 (177-182); Perry v. Adams, 98 N. C. 167, 2 Am. St. Rep.
Such being the rule when no title is conveyed, or if conveyed is set aside, the same rule applies in this case, where one-third instead of the entire property is in question.
We think the facts found by the court fully sustain the decree entered, and that there is no error in the record.
Judgment affirmed.