148 Ind. 319 | Ind. | 1897
This action was instituted by Mary Swihart, one of the appellees, to foreclose a mortgage against certain real estate therein described, situated in Fulton county, Indiana. The note and mortgage in suit were executed by appellees, John A. and Granville M. Tatman. Appellants, Hill and Lewis, with others, were made parties defendant to the action as alleged judgment lien holders upon the real estate in controversy. Upon the issues joined between the several parties the court made a special finding of the facts, and stated its conclusion of law thereon. By the facts found it appears that the mortgaged premises were originally held and owned by one William Strand by a patent from the United States. In 1877 the land was conveyed by Jacob C. Spohn, who was then the owner thereof, to Peter Smith, the latter executing a mortgage thereon to Spohn to secure certain notes executed by him to Spohn. *In April, 1881, one Robbins, who held this mortgage, commenced an action in the Fulton Circuit Court to foreclose the same, making John A., Granville, M., and Rebecca Tatman, and Mary Gringrich parties defendant, and they filed, answers and cross-complaints in said action; and such proceedings were had therein that the court found that certain amounts of money were due to these parties respectively, and • that the same were vendors’ liens, and superior to the lien of the mortgage held by
Their contention is that the lower court erred in its conclusion of law, in holding that the certificate of purchase of appellees, Holman and Stephenson, upon the sheriff’s sale of the land under the judgment of the Tatmans recovered in 1881, was a superior or prior lien to the judgment rendered in 1894, against John A. and Granville M. Tatman, and held by these appellants by assignment from the judgment plaintiffs. They insist that the judgment upon which the certificate of purchase to the appellees, Holman and Stephenson, is based, by virtue of the sheriff’s sale, was not.a lien on the land in dispute at the time their judgments were rendered against John A., and Granville M. Tat-man, for the reason that such lien, if .any, under section 617, Burns’ R. S. 1894 (608, R. S. 1881), had terminated after the expiration of ten years. Appellees, Holman and Stephenson, contend that under the special finding it does not appear that John A. and Gran-ville. M. Tatman at the time of the rendition of the judgments, under which the appellants claim to hold their liens, or at any time subsequent to that time, had any title or interest in the land in question, and hence
Section 617, supra, among other things, provides that all final judgments of the supreme and circuit courts for the recovery of money or costs shall be a lien upon real estate and chattels real, liable to execution in the county where judgment is rendered, etc.”
The special finding, as we heretofore said, does not disclose in what county or court the judgments held by the-appellants were rendered, and we are left to infer that they were rendered in the circuit court of Fulton county, where the premises are situated, and in order to hold under the facts that the lien of these judgments at any time attached to the land in question, we would be compelled to indulge in presumptions or inferences in favor of appellants, upon whom the burden rests of showing facts in support of their insistence that their judgments were liens upon the real estate in dispute. This, under a well settled rule heretofore mentioned, we are not permitted to do. Again, no facts appear in the finding which disclose any title or interest in the lands held by the judgment , debtors, at or subsequent to the rendition of appellants’ judgments, to which the liens thereof could attach. The alleged right of the judgment debtors, John A. and Granville M. Tatman, in or to the real estate,
Judgment affirmed.