42 Ind. App. 312 | Ind. Ct. App. | 1908
Lead Opinion
Appellees filed a complaint in the usual form against appellants to quiet title to certain real estate in Wells
It appears from the evidence that on March 11, 1869, Rachel Higgs became the owner of the real estate in controversy, and continued the owner thereof until June 18, 1869, on which date she, with her husband, conveyed said land to George W. Keeler, and on August 12, 1869, said Keeler conveyed said land to Michael Hanley, the ancestor of appellants, which deed was duly recorded. On April 19, 1869, said Rachel Higgs and husband mortgaged said land to Sophia Bartley. In 1871 said Sophia Bartley and husband brought suit against said Rachel Higgs and husband for foreclosure of said mortgage, but making no other persons parties thereto. Judgment of foreclosure was entered, the land sold under the decree, and purchased by John S. Bartley, husband of said Sophia. A sheriff’s deed was executed and delivered to said Bartley, conveying said lands to him under said decree. Bartley thereupon entered into possession of said land. Bartley afterwards conveyed the land to John C. 'Crandall and wife. Crandall reconveyed the lands to Bartley, and the Bartleys afterwards conveyed the lands to Josephus Mason, ancestor of appellees.
In September, 1882, appellants brought suit against said John S. Bartley and Sophia Bartley, Mary E. Lovall, John Hanley, Rebecca Branstrater and others, averring that appellants and Mary E. Lovall, John Hanley and Rebecca Branstrater were the heirs of Michael Hanley, deceased.
The complaint was in two paragraphs; the first being in the usual form of a suit to quiet title, and the second averring the purchase of said real estate by said Keeler and the sale of the same, on August 12, 1869, by him to said Michael Hanley, subject to the Higgs mortgage to Bartley, and also subject to another mortgage to one Neeley; that said deed to
The complaint then averred that plaintiffs and defendants Mary E. Lovall, John Hanley and Rebecca Branstrater were the owners of said real estate, setting out the interests of each; that the Bartleys had possession for said period of ten years, received the rents and profits for said time, and. also received money from the sale of timber. It also averred the execution of the Neeley mortgage, setting out the amount of the same and its recording. It averred the present possession of the land to be in one Springer, holding under said Bartleys; that said land was not susceptible of division. Prayer that an accounting be had with said defendants, and offering to pay said defendants any amount found by the court to be due them; that said mortgage be declared paid and satisfied and so entered of record; that their title to said property be forever quieted, and for all further proper relief; that said premises be partitioned or declared indivisible and a commissioner appointed to sell the same and pay said liens, and distribute the proceeds in accordance therewith.
To this complaint defendant John S. Bartley appeared and filed an answer to the second paragraph in five paragraphs, the first of which averred his purchase of the lands at said sheriff’s sale on the Higgs mortgage for the sum of $500, his receipt of the sheriff’s deed, his possession of said lands from August 15, 1872, until the commencement of said suit; that, while he had received small amounts of
Sophia Bartley also filed answer to said second paragraph of complaint, in which she set up the foreclosure and sale of said lands under the Higgs mortgage, and set out the notes
Defendant Mary E. Lovall filed a cross-complaint setting up her interest in said land, as widow of said Michael Hanley, alleging that she owned one-third interest in said land, reciting the Higgs mortgage to Bartleys, the foreclosure of the same, and the purchase and possession by the Bartleys thereunder, their receipt of the rents and profits, and asking that an accounting be had, with a view to finding what was due said Bartleys, if anything, and enabling her to pay whatever sum so found and redeem said land from said sale, which she thereby offered to do. Prayer for an accounting and permission to redeem from said sale.
To this cross-complaint all the plaintiffs answered by general denial. Afterwards the cause was tried, and on December 1, 1882, a general finding was made and decree entered, by which it was determined that the plaintiffs and defendants Mary E. Lovall, John Hanley and Eebeeca Branstrater were the owners of said real estate; that there was due to the defendants, John S. Bartley and Sophia Bartley, on their mortgage, the sum of $485.60; that there was due on the Neeley mortgage the sum of $410.32; that said sum of $485.60, due Bartleys on their mortgage, was a prior lien and should be paid first; that each of the plaintiffs, as well as said defendant Mary E. Lovall, was entitled to redeem said real estate and hold it free from encumbrance as to the defendants John S. Bartley and Sophia Bartley on payment to them of their said claim of $485.60, with interest thereon at the rate of six per cent per annum from date, within one year from said date, and that, on failure so to pay, they take nothing in the premises by their complaint in this behalf. The court also determined that the
Afterwards, in December, 1886, plaintiffs and-said defendants in said cause having failed to redeem in accordance with said decree, said Dailey presented his petition to the court in said cause, wherein he set out the order before described, and reported that he had advertised and made effort to sell the land within the year after the date of the entering of said decree, but was unable to make a sale thereof, and he asked for instructions from the court as to whether the expiration of the year for redemption as fixed in said order, without such redemption, had not divested the interest of the plaintiffs and defendants in said real estate and the right of the commissioner to sell said tract; and if, in the opinion of the court, the power of such commissioner to sell no longer existed, that he be discharged from any further duties pertaining to said trust. Upon this petition, the court made an order approving the - report, and discharging him from further services and liability, and ordering the cause stricken from the docket. During the pendency of said suit and continuously thereafter said Bartleys and their privies continued in the uninterrupted, exclusive, and actual possession of said land until the first week in August, 1903, after this suit was instituted, when appellants entered upon said land and asserted possession.
It is urged by the appellants that the foregoing facts are not sufficient to support a decree in favor of appellees; that while the appellees and their grantors were in the actual, continuous and exclusive possession for nearly thirty years,
In 2 Jones, Mortgages (6th ed.), §1106, the learned author says: “The form of the judgment ordinarily is, that the plaintiff may redeem upon paying the amount found due on the mortgage within a specified time, together with the costs; and that upon his doing so the defendant shall discharge the mortgage and deliver up the mortgaged premises; and that upon default of such payment the complaint be dismissed with costs.” This statement is fully supported by the authorities. In the decree under consideration the court’s language is: “ That each of the plaintiffs, as well as the defendant Mary E. Lovall, is entitled to redeem said real estate and hold the same free from encumbrance as to the defendants John S. Bartley and Sophia Bartley on payment' to them of their said claim of $485.60, with interest thereon at the rate of six per cent per annum from date within one year from this date; that, on failure so to pay, they take nothing in the premises by their complaint in this behalf. ’ ’ •The analogy is obvious.
In the ease last cited the court say: “It is not unusual to authorize redemption within a given time, where the statutory right is not asserted, and ordinarily, in such cases, if the redemption be not made within the time fixed, the right to redeem is lost.”
In Perine v. Dunn, supra, Kent, chancellor, says: “I take it for granted, that the time to be allowed by the decree to pay the mortgage debt, whether on a bill to redeem, or upon a bill to foreclose, is. not absolutely certain, but rests in discretion, and will be regulated by the circumstances of the particular case. In the precedents in the Equity Draftsman, the time is left blank. But I am inclined to think that six months is the usual time under the English practice on bills to redeem; and there is the more reason for the allowance of such a liberal time, considering that the time will not afterwards be enlarged, and that a failure of payment by the time would, probably, be equivalent to a forfeiture of the equity of redemption. * * * The usual decree, in these cases of bills to redeem, where the party fails to redeem, or is not entitled to redeem, is,, that the bill be dismissed.
The judgment is affirmed.
Eoby, J., absent.
Rehearing
On -Petition for Rehearing.
Appellants have filed a petition for rehearing in this cause, setting out thirty-two specifications of error in the opinion, each of which simply states that the court erred in its. decision in regard to the' specified matter. There is no brief or statement of any -kind filed with said petition showing in what respect the court erred in any of the particulars averred.
Since no reason, argument or authority is given by appellant in support of any of its specifications in the petition for rehearing, such petition presents absolutely no question for the consideration of this court. A petition that presents no question is in reality no petition, and the motion to dismiss should be sustained.
The petition for a rehearing is dismissed.