121 Ind. 471 | Ind. | 1890
— The complaint of Anthony W. Griggs seeks to have a decree of foreclosure reviewed and modified, and it sets forth at length the proceedings in the case in which the decree was rendered. The suit for foreclosure was brought by Sallie Herff, and Gustave Conradt filed a cross-complaint based on a junior mortgage. The notes and mortgage on which the foreclosure proceedings of Sallie Herff were founded were executed by John H. and Jane T. Griggs, the father and mother of Anthony W. Griggs, and the note on which Conradt’s cross-complaint is founded was executed by Frances and Charles F. Griggs, but the mortgage securing it was executed by John H. and Jane T. Griggs. The appellee, ■ Anthony W. Griggs, was named as one of the heirs of Jane T. Griggs, who had died before the commencement of the foreclosure suit, and was made a defendant to the suit. On the decree sale was made, and the mortgaged property was
The complaint shows all the diligence that it was possible for a person in the plaintiff’s situation to exercise. He knew nothing of the execution or existence of the deed by Young in 1842, and he can not be charged with negligence in not searching for an unknown instrument.
The judgment upon a bill of review in a case where the plaintiff succeeds does not finally adjudicate the controversy; all that it does is to set aside the judgment assailed and open the original case for trial. Leech v. Perry, 77 Ind. 422. The question, therefore, is, does the complaint for review make a prima facie case, entitling the plaintiff to have the cause again tried ? The effect of a judgment granting a review is not very different from a judgment on appeal awarding a new trial.
The complaint shows the delivery of the deed to third persons for the benefit of the grantees in January, 1842, and on the day of its delivery it became effective as against the parties to whom it was delivered. The registry of a deed adds nothing to its effect as between the immediate parties, it serves only to impart notice. Wines v. Woods, 109 Ind. 291; Bever v. North, 107 Ind. 544. If the case at our bar were one between the persons who executed the mortgages upon which the decree of foreclosure was founded and the plaintiff, there would be little difficulty, for, as between those parties, the deed is valid and effective, but the intervening rights of the mortgagees are such as to add an influential element to the case.
It is not alleged that the mortgages were not founded on a valuable consideration, nor is it charged that they were not in good faith accepted upon the belief that the mortgagors owned the land of which they were in possession, and, therefore, the presumption must be in favor of the mortgagees upon these points. Mortgagees who acquire an interest in the land in good faith and for a valuable consideration, oc
The mortgagors entered into possession in 1842, and had continuously held possession for more than forty years at the time the mortgages were executed. If their possession can be deemed adverse it had ripened into a fee simple long before the mortgages were executed, for a title by limitation is a title in fee. Sims v. City of Frankfort, 79 Ind. 446 (449); Wilson v. Campbell, 119 Ind. 286. The question, therefore, narrows to the effect of this long continued possession upon the rights of persons who occupy the position of bona fide purchasers as against the real owner under a deed executed forty years before the bona fide purchasers acquired their rights, and not recorded until after the acquisition of those rights.
The complaint avers that the mortgagors caused it to be reported that they were the owners under an unrecorded deed, and this was an assertion of ownership hostile to the title of the plaintiff, as was the conveyance of the west half of the lot. It may be true that the mortgagors did go into possession under the deed executed to the appellee, and yet be true that they disavowed his title and claimed adversely. It is not necessary in order to constitute an adverse possession that there should be color of title; it is enough if there be an assertion of ownership and unbroken possession for the requisite length of time. Collett v. Board, etc., 119 Ind. 27; Roots v. Beck, 109 Ind. 472. This doctrine prevails even as between tenants in common, for if the one in possession disavows the joint ownership, and claims exclusive title, the pos
It is settled law that the statute of limitations will run against an infant, and that if it once begins to run it continues unchecked, except in so far as the statute giving a limited time after the removal of the disability in which to sue may be considered as a check. The effect of this established rule is to give a person under the disability of infancy when the statute begins to run, two years after the removal of the disability in which to bring his action. Wright v. Kleyla, 104 Ind. 223; Barnett v. Harshbarger, 105 Ind. 410; Sims v. Gay, 109 Ind. 501; Walker v. Hill, 111 Ind. 223; Davidson v. Bates, 111 Ind. 391; City of Indianapolis v. Patterson, 112 Ind. 344; Peelle v. State, ex rel., 118 Ind. 512. The plaintiff became of full age many more than two years before the mortgages were executed, and this case is not strengthened by the fact that he was an infant when his father and mother went into possession of the land.
The possession of the mortgagors was prima faoie that of owners, since there was nothing to indicate that they were not the owners of the land of which they were in possession. Possession is evidence of title, and when continued for the length of time which creates ownership, is evidence of the highest title known to the law. Robinoe v. Doe, 6 Blackf. 85. Twenty years’ possession will defeat the holder of the paper title. Riggs v. Riley, 113 Ind. 208. It results from these familiar rules, that, prima faoie at least, the mortgagors were the owners in fee of the mortgaged premises, and this prima faoie case is strengthened by the other facts disclosed by the complaint, for it appears that the parties in possession conveyed the land, as owners, and as owners mortgaged it. They did not convey as owners of an undivided interest, but as owners of the whole interest. If there is nothing countervailing a prima faoie case, it will prevail.
We find nothing that overcomes the prima faoie case as against mortgagees occupying the position, as do these mort
If a party is a bona fide purchaser he will be protected, no matter how defective his grantor’s title. Strong as this statement is, it is yet not so strong as the authorities warrant. One of the most able and philosophical of our law writers fully discusses this question, and in the course of his discussion
The decree of foreclosure is unimpeachable, and the complaint for review can not stand.
Judgment reversed.