27 Ind. 308 | Ind. | 1866
The complaint was by Friedersdorff, a judgment creditor of Marsh, against Marsh and Goodrich, and divers judgment creditors of Marsh. The object of it was to subject certain real estate, the legal title to which was in Goodrich, to execution to satisfy the plaintiff’s judgment. The judgment creditors who were made defendants, by their pleadings, made themselves co-plaintiffs with Friedersdorff, seeking the same relief.
Having alleged the obtaining of the plaintiff's judgment on the 16th of October, 1861, the return of an execution nulla bona, and the insolvency of Marsh, the material facts . of the complaint are, that on the 16th of December, 1857,
It is conceded upon both sides that Marsh had the right to redeem the lands from Pogue's 'purchase, at any time within one year from the date of that purchase. Upon the basis of that right, Goodrich procured his title by solemn judgment of the Jefferson Circuit Court, though it does not escape notice that the mode adopted by that court to give him the relief which he claimed to be entitled to, in consequence of having acquired the right to redeem, was rather novel. To redeem as assignee of Marsh would be to avoid the consequence of the sheriff’s sale, the conveyance by the sheriff of a title under that sale; but the court directed that very conveyance to be made. To the parties then before the court, no wrong could result by the proceeding, and as the parties here seeking relief were not parties to that record, they cannot be affected by it. As to them, Goodrich must be held to be merely in the position which he had a right to occupy in view of the facts. He must, as against the appellees, be deemed to stand exactly as he would if Weyer had voluntarily received the redemption money and canceled the sheriff’s certificate of purchase. It was not in the power of the Circuit Court, by its decree in the case of Weyer v. Goodrich, to cut off' the rights of judgment creditors of Marsh, who had no opportunity to be heard. They can yet assert the actual truth and obtain such relief as they are entitled to under it. It is not true, assuming the verity of the complaint, that there was no redemption from the sheriff’s sale. There was such redemption, in fact, before the expiration of • the time limited therefor, and these creditors may now claim whatever benefit shall accrue to them in consequence of it, notwithstand
The answer of Goodrich was in two paragraphs. The first is of great and unnecessary prolixity. Tt repeats many of the averments of the complaint, and attempts to give a narrative of the whole transaction. The material new matter which it introduces into the record is, that Pogue’s decree was entered for too much, by mistake of his attorney, but that the judgment creditors weré, before sale, notified of the amount actually due, viz., $2,500; that Pogue bid off the property upon an agreement to allow Marsh and his assignees to redeem within one year, for $2,750; that the act of June 4,1861, did not influence the parties or the sheriff; that the indebtedness to Pogue had accrued before the passage of that act; that in consideration of Marsh’s assignment to Goodrich of his equity and right of redemption, the latter paid $2,500 to the wife of Marsh, &to extinguish her contingent right of dower,” and received from her a deed of quit-claim; also that he paid $211 to redeem the lands from a sale for taxes; also that he paid Weyer to l’edeem $2,750; that he also paid $500 to one Harrington, for the benefit of Marsh; that Goodrich has made lasting
The second paragraph differs from the first only in asking that his advances for redemption, taxes and improvements, and to Marsh and wife, be declared a lien on the lands, and to have priority over the judgments sought to be enforced against it.
The reply was: 1. The general denial. 2. That Goodrich redeemed the premises from the sheriff’s sale to Pogue, and is thereby estopped from claiming title through that sale. 3. As to Goodrich’s claim for advances to Mrs. Marsh for her contingent right, that she is dead; and as to taxes and improvements, that he has taken the profits since 1863, worth $800, and has cut down, removed and sold, timber trees growing thereon, of the value of $2,000, which exceeds all moneys advanced, improvements, &c.
There was a jury trial, which resulted in a general verdict for the plaintiff’, with answers to special interrogatories, to-wit: that Goodrich redeemed from the sale to Pogue under a special contract between Pogue and Marsh, and that no part of the amount due Pogue at the date of his judgment of foreclosure had accrued upon a contract made subsequent to June 4, 1861. A motion for a new trial was overruled, and a decree entered directing the sale of the property to satisfy the judgments of the appellees, in their order, subject to a lien in favor of the appellant for $2,750, the money paid by him to redeem from the sheriff’s sale to Pogue, with interest upon that sum from the date of its payment.
A number of questions arise out of the refusal to grant a new trial.
The appellants offci’ed evidence on the trial to prove that Marsh had, during the year succeeding the sheriff’s sale to Pogue, informed each of the appellees of his agreement for redemption with Pogue, and requested each of them, as judgment creditors, to redeem; which they declined to do. This evidence was excluded, and, we think, correctly. According to the view of the case already expressed, the proposed evidence would have been entirely immaterial.
The appellant also offered, to prove the value of improvements made by him, and that he made them believing in good faith that he had a good title. This evidence was, we think, properly excluded. We know of no authority for entering into the investigation of the value of improvements in a case like this; none is cited, and we think that none can be found.
The court refused to permit the appellant to prove the amount of taxes paid by him upon the lands after he had l’edeemed. We are of opinion that this was error. The appellees do not question that Goodrich was entitled to sue
There were twenty-four causes assigned for a now trial, one of which was the refusal to give each of thirty instructions to the jury, and therefore involves as many propositions. We cannot be expected to notice each of these matters in detail, and we forbear any further remark, inasmuch as the points involved, so far as they are important, are fully determined by what has already been said.
A motion by Goodrich for judgment in his favor upon the verdict was, we think, correctly overruled. We have seen that the facts found in his favor were wholly immaterial.
It is possible that a general verdict, in the ordinary form, if for the plaintiffs, may not enable the court to render the proper decree .upon another hearing. . This is one of the consequences resulting from the anomaly of trying such a case by jury. This difficulty can only be avoided by requiring some matters to be specially found.
The pleadings on both sides require amendment to avoid confusion and unnecessary costs. The record is inexcusably incumbered with unnecessary and redundant matter, and the pleadings are extended greatly by needless details of evidence, and by repetitions. This is so marked that we
Judgment accordingly.
Ray, C. J., concurred in the judgment, but doubted the reasoning.