Hutchinson v. Wood, 59 Ind. App. 537

Hutchinson v. Wood

59 Ind. App. 537 | Ind. Ct. App. | 1915

Shea, G. J.

The trial court in this case made a special finding of facts, the substance of which is as follows: That on February 12, 1906, one John W. Reynolds was the owner of certain described real estate in St. Joseph County, Indiana, and on that date the treasurer of said county sold the undivided one-eighth of said lands to one Isaac Farneman for nonpayment of taxes. Said taxes were not paid, nor was the land redeemed from the sale, and oh February 13, 1908, the county auditor executed a tax-title deed to Farneman for the undivided one-eighth of said lands, which was duly recorded February 19, 1908. On June 17, 1908, *538one Maud Reynolds (appellee herein, now Maud Wood), wife of John W. Reynolds, filed her complaint for divorce in the St. Joseph Superior Court, praying for the custody of their two children Gertrude E. and Edith M. aged thirteen and nine years, respectively, judgment for $1,000 alimony, an allowance of $400- per year for the support of the children and all other proper relief; that summons issued to John W. Reynolds and was personally served by the sheriff on him June 19, 1908. Thereafter the cause was transferred to. the St. Joseph Circuit Court, and on July 16, 1908, the court found in favor of plaintiff granting her the divorce and custody of the children until further order of the court; and the “court further finds for the plaintiff in the sum of $400 against the defendant as alimony, to be used for the support of the children, execution shall not issue on the judgment for two years from this date. Wherefore, it is considered, adjudged, and decreed by the court that the bonds of matrimony existing between the plaintiff, Maud Reynolds, and the defendant, John W. Reynolds, be dissolved, and the plaintiff be granted a divorce. It is further considered and adjudged by the court that the plaintiff have the sole care, custody and education of the minor children mentioned in the complaint, viz.: Gertrude Esther and Edith May Reynolds, until the further order of court, and the defendant is permitted to see said children at all reasonable times. It is further considered and adjudged by the court that the plaintiff recover of the defendant the sum of four hundred dollars, Avhich .sum is to be used for the support of said children, and execution shall not issue on said judgment for a period of two years, from this date, together with costs”, etc. Defendant Reynolds did not appear at the trial and was defaulted. On February 11, 1907, the treasurer of St. Joseph County, Indiana, sold said real estate as the property of John W. Reynolds for nonpayment of taxes to Isaac Farneman. The taxes were not paid, nor was said real estate redeemed from the sale, and on Febru*539ary 12, 1909, the county auditor executed a tax-title deed to the real estate described in the complaint to said Farneman. On May 31, 1909, Farneman filed in the St. Joseph Circuit Court his complaint to quie.t title, a copy of which is set out in the special finding of facts, making defendants thereto John W. Reynolds and Maud Reynolds (now Maud Wood) and the St. Joseph County Savings Bank. Summons was issued May 31, 1909,'and served on defendants June 1, 1909. Thereafter such proceedings were had that on June-11, 1909, judgment was rendered in favor of Isaac Farneman quieting his title to said land. The court found in favor of defendant bank on its mortgage lien of $350. De-' fendants John W. Reynolds and Maud Wood did not appear to the action and were defaulted. On June 19, 1909, Isaac Farneman and his wife Laura Grace Farneman executed a quitclaim deed to the real estate in controversy to appellant Sat'ah Hutchinson. It is found that the treasurer of St. Joseph County made the sale of the real estate and executed a tax-title deed without at any time making search for personal property of John W. Reynolds upon which to levy for nonpayment of taxes; that after the granting of the judgment of divorce, appellee Maud Reynolds intermarried with one Wood and is the same Maud Wood now a defendant in the case at bar; that on November 17, 1911, through her attorney, she executed a precipe for an.execution upon the judgment in th'e divorce proceedings, and the clerk of the St. Joseph Circuit Court on November 23, 1911, issued said execution; that defendant Millard F. Kerr, then the sheriff of St. Joseph County, levied said execution upon the real estate described in the complaint, and advertised same for sale, and on December 28, 1911, appellant Sarah Hutchinson brought these proceedings against appellee Wood and said Kerr to enjoin the sale of the real estate under said execution or by virtue of the judgment rendered in the cause of Maud Reynolds v. John W. Reynolds.

The court upon these facts stated its conclusions of law *540to be that the judgment, the collection of which is sought to be enjoined in this action is a lien upon the real estate .described in the complaint; that the beneficial interest in the judgment, the collection of which is sought to be enjoined in this action, is in the children of appellee Wood, who are named in the judgment and are not bound by the judgment in the action to quiet title instituted by Isaac Farneman; that appellant Hutchinson is not entitled to recover in this .action. Judgment was rendered accordingly.

1. 2. It is assigned that the court erred in overruling appellant’s demurrer to appellee Wood’s second and third amended paragraphs of answer, and in the conelusions of law stated on the special findings of fact. The statute under which this proceeding was commenced provides that all parties who have liens and “all parties who have or claim to have, or appear of record in any one of the public offices of the county where such land or lot is situated to have any interest in or lien upon such land or lots shall be made defendants in such suit.” §10393 Burns 1914, Acts 1901 p. 336. Persons who are not made parties to proceedings to enforce tax liens, are therefore not bound by any judgment that may be entered in such proceeding. Farrar v. Clark (1884), 97 Ind. 447; Abbott v. Union Mut. Life Ins. Co. (1890), 127 Ind. 70, 26 N. E. 153; Grigsby v. Akin (1891), 128 Ind. 591, 28 N. E. 180. It therefore follows that if the decree entered in the divorce proceeding of Maud Wood made her a trustee for her children, the judgment would not be binding as to. her in any other capacity than in which she is sued. Lord v. Wilcox (1885), 99 Ind. 491, 496; Elliott v. Frakes (1880), 71 Ind. 412, 416; Unfried v. Heberer (1878), 63 Ind. 67, 72; McBurnie v. Seaton (1887), 111 Ind. 56, 58, 11 N. E. 101; Sonnenberg v. Steinbach (1897), 9 S. Dak. 518, 62 Am. St. 885. It is held in the case of Stonehill v. Stonehill (1896), 146 Ind. 445, 447, 45 N. E. 600, that the person to whom money for the support of a *541child is ordered paid by the court, receives it as trustee, and can only expend it for the benefit of the child. Maud Wood was properly in court in the above proceeding in her individual capacity alone, therefore the judgment would be binding against her in her individual capacity only, and the interest of the children in the judgment lien was not disturbed by the action of the trial court in quieting title thereto in Isaac Farneman.

Other questions need not be considered as this finding disposes of all the questions properly presented.

Judgment affirmed.

Note. — Reported in 109 N. E. 794. Instances of eonclusiveness in tiie case of a judgment, see 14 Am. St. 250; 15 Am. St. 142. See, also, under (1) 23 Cyc. 1280; (2) 23 Cyc. 1243.