125 Ind. 381 | Ind. | 1890
— It is alleged in the complaint of the appellee that in suits brought by Benjamin F. Horn and James R. Carson against Eber Teter and George Teter, the appellee recovered judgment for $5,080, and that a decree was entered foreclosing a mortgage executed by the Teters to the appellee on four acres of land, with its appurtenances; that on the land was a barrel-heading factory, comprising buildings, engines and machinery. It is also alleged that Horn recovered a judgment for $10,000, and obtained a decree of
Horn entered a special. appearance and moved to quash the notice given him by publication as a non-resident. The contention that the notice was not published for the time required must fail. The proof of publication shows that three full weeks of publication expired more than thirty days before the first day of the term at which he was notified to appear, and this was sufficient, as more than fifty-one days elapsed between the first publication and the first day of the term. Hill v. Pressley, 96 Ind. 447.
It was proper to make a nunc pro tune entry of the order for publication. Ho final judgment had been entered at the time the motion to quash was interposéd, so that the case was still pending when the order was entered. The proceedings were, therefore, in fieri at the time the nunc pro tune entry was made, and hence it was clearly within the power of the court to make its record speak the truth. The rule which applies in cases where the action has been fully ter
. The complaint is in the nature of a bill to redeem real property, and the general rule in such cases is, that the plaintiff must make an equitable tender of the amount due the senior lien-holder. Nesbit v. Hanway, 87 Ind. 400; Kemp v. Mitchell, 36 Ind. 249. But while the general rule is that an equitable tender must be made by offering to pay what may be found due upon an accounting, yet there are exception's to that rule. One of these exceptions exists where it appears that the lien-holder has money in his hands exceeding the amount of his lien which he is equitably bound to apply to the discharge of his claim. 2 Jones Mort., section 1096. The principle which underlies the rule requiring an equitable tender is, “ that he who asks equity must do equity.” This is the reason for the rule, and where the reasons fails so, also, does the rule itself. Beyond doubt the reason fails where the senior lien-holder has money in his hands which it is his duty to apply to the payment of his lien, and which exceeds the amount of his claim. As the complaint in this ■case shows that the senior lien-holder had money in his hands which it was his duty to apply to the payment of his lien the case falls not within the general rule, for that fails, but falls within the exception. We must, therefore, hold that, as the allegations of the complaint are confessed by the demurrer, the failure to make an equitable tender is excused by the facts pleaded. In asserting this conclusion we do not inquire whether Horn was chargeable with the rents received ■by him for leaving the amount of the rent out of consideration, it still appears that he had twelve thousand dollars in his hands; hence, we need not, and we do not, examine the ■question of the relevancy of the doctrine declared in the cases of Gavin v. Graydon, 41 Ind. 559; Elwood v. Beymer, 100 Ind. 504.
We do not, at this point, decide whether the appellee has
We are unable to discover any theory upon which it can be held that a cause of action is stated against Hawkins. He was, it is true, the sheriff who made the sale; but as the ■complaint seeks to redeem it affirms the sale, and, as it does this, there can be no cause of action against the officer who made the sale, even if it be conceded that he did not make a true return. It has been again and again decided that a complaint must proceed on a definite theory, and be good on that theory. Mescall v. Tully, 91 Ind. 96 ; First National Bank v. Root, 107 Ind. 224; Louisville, etc., R. W. Co. v. Thompson, 107 Ind. 442 ; Rahm v. Deig, 121 Ind. 283. The only theory upon which this complaint can be good, if, indeed, it can possibly be good on any, is that it shows a right to redeem from a sale made by a sheriff, and upon that theory it is legally impossible that it can be good against the officer by whom the sale was made. The demurrer filed by Hawkins must be sustained.
The second paragraph of the answer of the appellant Horn is a partial one, and is addressed to so much of the complaint ns charges him with the rent of the property of which he was in possession prior to the sheriff’s sale. This answer alleges that the appellant made permanent improvements, of the value of fifteen hundred dollars, for which he asks credit.
Upon the assumption which we provisionally make, that the complaint was good, the answer was clearly bad. A mortgagee in possession can not embarrass the right to redeem by making improvements. He may make repairs, but he can not make improvements at the expense of redemptioners. Miller v. Curry, 124 Ind. 48.
The special finding states the facts substantially as follows : On the 7th of May, 1886, Eber Teter and George Teter were the owners, as partners, of four acres of land. Situated on this land, and attached to it were a heading fac
It can not be successfully denied that the factory and its equipments were treated by all the interested parties as personal property long prior to the time the appellee’s mortgage was executed. It was so characterized in the chattel mortgage to Carson, in which the right to remove it from the town of Cicero to Sheridan was provided for, and so it was treated in the agreements made between the parties prior in equity and in time to the appellee. The agreement between the appellee and the senior lien-holders recognizes the validity of the former agreements and mortgages, so that the parties by their own acts had impressed upon the factory and its equipments the character of personal property. Ford v. Cobb, 20 N. Y. 344. It was entirely competent for them to do this, for a factory and its equipments, or a mill and its machinery, may be personal property although it is affixed to the soil. Malott v. Price, 109 Ind. 22; Rogers v. Cox, 96 Ind. 157, and cases cited (49 Am. Rep. 152). Whether property is real or personal is, as the modern decisions unite in declaring, in a great measure a question of intention. Hubbell v. East Cambridge, etc., Savings Bank Co., 132 Mass. 447 (42 Am. Rep. 446, and the authorities in the note to page 447). In this instance the intention to fix upon the heading factory and its equipments the character of personalty had been fully and unequivocally manifested, and notice lawfully given before the appellee acquired any rights in the property. We are not, therefore, dealing with a case where a purchase is made, or a mortgage accepted, where there is no notice of the character of the property, and appearances indicate that it is part of the realty. We make no inquiry as to what rights a mortgagee acquires where his lien is taken upon the faith that the property is land, and there is neither actual nor constructive notice that the parties have by their conduct impressed upon the property a different character.
As the factory and its equipments were originally personal
“ It is therefore considered, ordered, and adjudged by the court, that the plaintiff, Benjamin F. Horn, recover the sum of $10,889 ; and that the plaintiff, James R. Carson, recover the sum of $2,935.80 ; and also that there is due said Smith & Rodeman $1,320; and that said Indianapolis National Bank recover the sum of $5,088.13. It is further adjudged and decreed by the said court that said mortgage set out in the complaint in favor of said plaintiffs, and also the mortgage in the cross-complaint in favor of said bank should be foreclosed, and that the equity of redemption of said defendants, and each of them in and to said property, and all other persons claiming through and under them, or either*391 of them, in and to said property be, and the same is hereby barred and forever foreclosed.
“ And it is further ordered and adjudged by said court that said property, or so much thereof ¿s may be necessary for that purpose, shall be sold by the sheriff of said county of Hamilton, as other property is sold on execution issued upon judgment at law, after duly advertising the same.”
This decretal order does not direct that the property shall be sold as land, or real property, but it simply directs that it shall be sold as property, so that it can not be inferred from the description of the thing directed to be sold whether itr is that species of property within the class denominated chattels, or within the class denominated lands, for the generic term employed includes both species. The order does, it is true, bar the equities of the parties, but such an order would be appropriate if only personal property were involved ,• here, however, both classes of property were involved, for at the time the decree was entered the factory and machinery were undoubtedly personal property. For this reason it can not be justly said that the provision barring the equity of redemption is conclusive as to the character of the property ordered to be sold. We can not hold that there is such an adjudication as concludes the parties from showing the truth, for the general rule is that decrees relied upon as creating an estoppel are to be construed with strictness, and certainly this general rule should apply here, for the equities are strongly with the senior lien-holder, and prior to the decree the factory and its equipments were certainly treated as personal property. It ought, in good conscience, to apply, because a sworn officer gave a construction to the decree and insisted upon selling the factory and equipments as personal property, and the senior mortgagee could not do otherwise than buy at the sale without suffering delay, and, probably, serious loss. If the appellee was not satisfied with the construction of the decree given by the sheriff it ought to have applied to the court for relief, and not have
It is difficult to perceive how it can be possible for the appellee to affirm the sale by offering to redeem, and yet insist upon its invalidity; but this the appellee does by insisting that the property sold as personal property is, in fact, real estate. If it be true that the factory and equipments were real estate, then the sheriff did wrong in selling them as personal property, and the sale might have been avoided; but this is not what the appellee seeks to do, for it asserts that the sale is valid by offering to redeem. In affirming the validity of the sale it made an election, and made one that necessarily affirms the sale; and thus affirming the validity of the sale the appellee can not be heard to aver that Horn did not buy the mill and its equipments as personal property. He could not, indeed, have bought them as anything else, for they were advertised and sold as personal property. If they are personal property there can, of course, be no redemption. If the sale was invalid the appellee’s remedy was by an attack upon the sale itself, and not by a suit to redeem. Jones v. Kokomo, etc., Ass’n, 77 Ind. 340.
The appellee’s equity of redemption was barred by the decree, and the only claim it can with plausibility assert is, that it has a right to redeem under the statute. The only right it has to redeem, if it has any at all, is under the statute, for its general equity of redemption is cut off by the decree. Eiceman v. Finch, 79 Ind. 511; Duke v. Beeson, 79 Ind. 24. If the appellee has a right to redeem under the statute now in force, it must be for the reason that it belongs to the class of persons to whom the statute grants the privilege of redeeming, for the right is purely a statutory one and can only be exercised by the persons upon whom the statute confers it. The law as it now stands is clearly laid down in th(^/well-reasoned case of Hervey v. Krost, 116 Ind. 268. The rule there declared is, that a judgment creditor can not redeem from his own sale. It is there shown that
If the sale from which the appellee seeks to, redeem was made to satisfy its judgment, it has no statutory right to redeem, so that the pivotal question is whether the sale was made on its own judgment. It will aid us in our investigation to ascertain the reason for the rule prohibiting a judgment creditor from redeeming from a sale made to satisfy a judgment in his own favor. The policy of the law is to make the property bring its full value, and to discourage persons from bidding less than the fair value of the property. It is also the intention of the law to do justice to interested parties, by securing the fair value of the property at one sale, and thus prevent the annoyance and expense of numerous sales, and numerous sales may follow where there are many successive redemptions. The law was not intended to enable a creditor to offer only part of the fair value of the property and take the chance of a redemption; neither was it intended that the creditor should permit others to bid much less than the value of the property, and subsequently redeem from the sale. ÜSfor was it intended that bidders should be discouraged by the uncertainty of acquiring title, and the probability that the owner of the judgment which the property was sold to satisfy might come in and redeem. These are strong reasons supporting the conclusion that a judgment creditor should not be permitted to redeem from a sale made to satisfy his own judgment, and the conclusion is supported by authority. In Hervey v. Krost, supra, it was said : “.While the courts favor and give a liberal construction to redemption laws in the interest of the debtor and others who are concerned that the'debtor’s property shall go towards the payment of his debts, to the full extent of its value, and to whom the right of redemption may be their
The appellee is clearly within the reason of the rule, and it is within the letter, for the judgment was entered in its favor as well as in favor of the other lien-holders. There was one decree, and it was the decree of all the lien-holders. The decree authorized one sale, and it was the sale of all the judgment creditors. If the property had sold for enough to satisfy the judgment of the appellee, in whole or in part, it could not be doubted that the sale was on its own judgment ; and the fact that it did not sell for enough to satisfy its judgment does not change the principle which governs the case. The decree directed the property to be sold to pay all of the liens, and made provision for distribution to the appellee and all other lien-holders, so that there could only be one sale.
Analogous cases in our reports prove that there was but one judgment and one sale. In Harrison v. Stipp, 8 Blackf. 455, it was held that where the sheriff had several executions in his hands, and the property was not susceptible of division, there must be but one sale, and this case has often been followed and approved. The decision in the case of Steamboat Rover v. Stiles, 5 Blackf. 483, is that where liens are filed against a steamboat there can be only one judgment and one sale. It is true that the decision referred to is modified in some respects by the case of Rose v. Mc
In the case of Shirk v. Wilson, 13 Ind. 129, it was held that where several claims are filed in attachment proceedings there can be only one sale, although some of the judgments were collectible without relief from appraisement laws, and others were subject to these laws. Davis v. Langsdale, 41 Ind. 399, is not in conflict with the cases to which we have referred, for in that case the peculiar provisions of the decree prevented a sale on the junior mortgagee’s claim until after the claim of the senior mortgagee should be satisfied. Langsdale v. Mills, 32 Ind. 380. Decisions of other courts come nearer the precise case before us and are, indeed, decisive of the principle which rules the case. In the case of McCullough v. Rose, 4 Bradw. (Ill.) 149, it was held that where there was an interpleader filed in a suit to foreclose a mechanic’s lien, the decree was the decree of all, and that none of the parties to it, in the character of creditors, could redeem from the sale. The case of Todd v. Davey, 60 Iowa, 532, declares that a mortgagee can not redeem from a sale made upon a decree in his favor, and cites the cases of Clayton v. Ellis, supra, Blake v. Black, 55 Iowa, 252, Poweshiek County v. Dennison, 36 Iowa, 244, and Escher v. Simmons, 54 Iowa, 269.
The opinion in the case of Lauriat v. Stratton, 6 Sawyer, 339, is a strong one, and it is declared that a sale upon a decree foreclosing several mortgages is a sale as to all the lien-holders, and that there can be no redemption by any one of them. The court said : “ It can not be denied and is admitted, that if the sale was made in pursuance of a decree in favor of Crooke as moi’tgagee, and upon process to enforce such decree as to his lien as well as that of Swegle, his lien was thereby extinguished.” The court cites, in support of its conclusion, the eases of Shepard v. O’Neil, 4 Barb. 125 ; Wood v. Colvin, 5 Hill, 228; Ex parte Stevens, 4 Cow. 133. It is true that in Lauriat v. Stratton, supra, reference is made to
The j udgment is reversed, with instructions to restate conclusions of law, and render judgment upon the special findings in favor of the appellant Horn, and with the further instruction to sustain the demurrer of appellant Hawkins to the complaint.