76 Ind. App. 282 | Ind. Ct. App. | 1921
This was an action by appellant ■against the appellee to quiet the title to certain real estate in Johnson county. The appellee Crawford filed answers and also his cross-complaint against the appellant and his wife alleging that he was the owner of the land in controversy and asking that his title be quieted.
The cause was tried by the court and a decree entered, denying any relief to appellant, and quieting the title of appellee Crawford, in and to said lands as prayed for in his complaint.
The facts of the case, as shown by the record, are as follows: In 1913 the appellant was the owner of the lands in question, and on November 5, of that year executed to the Farmers Trust Company, his wife joining therein, a mortgage on said lands to secure a note for $3,000. On November 24, 1914, appellant and his wife executed to one Martin V. Strickler, a second mortgage on said real estate, to secure a note for $284. In October, 1916, said Strickler began suit to foreclose his said mortgage, making the said Jolliffe, said trust company, and other persons who were then judgment creditors of Jolliffe, parties defendants thereto. The
Afterwards on May 16, 1917, the Farmers Trust Company, by its attorneys, filed a praecipe with the clerk for the issuance of an execution and order of sale upon said decree, and such proceedings were thereafter had that the said lands so mortgaged were, by the sheriff of said county after due notice given, sold on July 28, 1917, to one Otto J. Swain, and a certificate of purchase duly executed to said purchaser.
It further appears that said Strickler, on June 27, 1917, sold and transferred to appellee Crawford his judgment obtained as aforesaid, and that on July 27, 1918, said Crawford deposited with the clerk of said court an amount of money sufficient to redeem said lands from said sale, and that on July 30, 1918, said Swain received and accepted said money so deposited with said clerk, “in full redemption of the annexed sale of real estate.”
It further appears that said Crawford, at the time he so deposited said money with said clerk to redeem said lands from said sale, filed with said clerk his affidavit as required by §815 Burns 1914, §772 R. S. 1881; that thereafter a writ for the resale of said lands was duly issued by the clerk and delivered to the sheriff of said county, who, after having duly advertised, resold said
The issues in this case having been tried by the court there was a finding against the appellant upon the issues tendered by his complaint, and a finding in favor of appellee Crawford upon the issues tendered by his cross-complaint. The decree quieted title of appellee Crawford in and to said lands as against appellant. There- was a motion for a new trial based upon the grounds (a) That said decision was not sustained by sufficient evidence; (b) that said decision was contrary to law. This motion having been overruled this appeal followed, and the action of the court in. overruling said motion is the only error assigned.
It will be noted that the original sale took place July 28, 1917, and that the appellant never redeemed or attempted to redeem said lands from said sale.
The questions presented by this appeal are two, viz.; (a) The legal effect, if any, of said second sale; and (b) the right of the appellant Jolliffe, under the facts of this case, to have his title to said lands quieted.
In considering the legal effect of said second sale, the first question which presents itself is, Did Crawford have any right to redeem from said sale under said de-. cree of foreclosure? In Horn v. Bank (1890), 125 Ind. 381, 25 N. E. 558, 9 L. R. A. 676, 21 Am. St. 231, it was said: “As the law contemplates a final decree adjusting all rights and equities, and as such a decree was rendered in the foreclosure suit involved in this case, it necessarily results that a sale upon that decree, was a sale upon all the judgments embodied in it. This being true, it must also be true, that none of the claimants in whose favor a judgment was incorporated in the decree
In 16 R. C. L. 12, §8, it is said: “If the jurisdiction to order or conduct a judicial sale is conferred or limited by statute, particularly if it be a special jurisdiction or power to sell, the provisions of the statute must be strictly followed and the sale is void if ordered, conducted or confirmed in a manner or upon terms other than those prescribed thereby.”
Was the appellant, Jolliffe, under the facts of this case, entitled to have a decree in his favor quieting his title in and to said lands, as against appellee Crawford? On July 27, 1918, at the'time said money was paid to the clerk of the court, the appellant was the owner of the lands in question. The legal title thereto was in
The contention of the appellant in this case is, that the act of Crawford in paying said money to the clerk and the acceptance of the same by Swain was, as far as he is concerned, legally sufficient to, and did work a redemption from said foreclosure sale and thereby free the said lands from the right and claim of said Swain, and discharge a burden then and theretofore resting upon the appellant, yet, as Crawford had no right to redeem said lands and no right to have said lands re
In Freeman, Void Judicial Sales (4th ed.) §49a it is said: “We understand the decisions in several of the States to affirm that a defendant in an action of ejectment may show in his defense that he purchased the "property at an execution or judicial sale, or that the amount of his bid was applied to the extinction of some valid claim or lien, and such showing being made, the court will not render judgment for possession, though the sale was void, until the purchaser has been reimbursed the amount so paid,” citing among other authorities, Wilmore v. Stetler (1894), 137 Ind. 127, 34 N. E. 357, 36 N. E. 856; and Davis v. Gaines (1881), 104 U. S. 386. See also, Kleeber, Void Judicial and Execution Sales §471.
Pomeroy, Equity Jurisp. (3rd ed.) §385, speaking of the maxim that, “he who asks equity must do equity,” says: “This maxim expresses the governing principle that every action in a court of equity, ki determining rights and awarding remedies, must be in accordance with conscience and good faith. In its broadest sense it may be regarded as the foundation of all equity, as the source of every doctrine and rule of equity jurisprudence ; since it is undeniable that courts of equity do not recognize and protect the equitable rights of litigant parties, unless such rights are, in pursuance of the set-