70 Ind. App. 379 | Ind. Ct. App. | 1919
By this action appellants sought to require appellee Stein, Jr., who was clerk of Marion Circuit Court, to permit appellants to redeem certain real estate from a sheriff’s sale, and to contest the rights of appellees Clara A. Monroe and others to redeem the same.
The cause was submitted to the court for trial without the intervention of a jury. There was a request for special findings of fact, which were made, with conclusions of law in favor of the appellees. TJpon the conclusions of law judgment was rendered in favor of the appellees against appellants James G. Kenney and Lucy W. Kramer upon their complaint, and in favor of appellee against appellant Samuel S. Rhodes, upon his cross-complaint. From this judgment this appeal is prosecuted.
The errors relied upon for reversal, and here considered, are: Errors of the court, respectively, in its first, second, third, fourth, fifth, sixth, seventh and eighth conclusions of law. Proper exceptions were saved to the court’s conclusions of law.
The substance of so much of the special findings of fact as is necessary for this decision is as follows: On May 26,1913, Jacob C. Lipps and wife were the owners of certain real estate in Marion county, Indiana, upon which they executed a mortgage to James Gr. Kenney to secure the payment of a note of -$2,000. Said mortgage and note were assigned to one Lena Dunham on August 5, 1913, as collateral security for the payment of a note of $300 executed by said Kenney on said date. Said $300 note, and mortgage assigned as its collateral security, were on February 4,1914, indorsed to one Jean Barnard. On February 18, 1915, said Jacob C. Lipps and wife conveyed said real estate to one Samuel E. Hamlin without any consideration therefor, and on May 4,1915, said Hamlin executed to appellee Clara A. Monroe a mortgage on said real estate to secure the payment of a note of $1,500. On June 1,1914, said Jean Barnard filed her complaint in the Marion Circuit Court making as defendants therein James Gr. Kenney, Jacob C. Lipps, and his wife, Alma K. Lipps, William S. Taylor and Lena Dunham, said action being to f oreclose the said mortgage assigned as collateral security for the payment of said $300 note, and for the further purpose of collecting by attachment a claim held by one William S. Taylor against said Kenney. In this foreclosure proceeding there was a judgment in favor of said Barnard, and against the defendant Jacob C. Lipps, in the sum 'of $2,258 and costs, and the foreclosure of the equity of redemption of Kenney, Lipps and his wife, William S. Taylor and Lena Dunham,
On these findings of fact the court states its conclusions of law as follows: (1) That the law is with the defendants. (2) That the plaintiffs are not entitled to have any of the entries of the clerk of this court-relating to the redemption of said real estate from said sheriff’s sale by the defendant Monroe vacated. (3) The plaintiffs did not have and hold the first right to redeem said lots from said sheriff’s sale under and by virtue of their judgment rendered September 18, 1914. (4) The plaintiffs were not entitled to any
order compelling the defendant Theodore Stein, Jr., clerk of this court, to accept and file said affidavit of November 12, 1915,. and to allow plaintiffs to redeem from said sheriff’s sale. (5) The defendant Theodore Stein, Jr., as clerk of this court is not compelled to accept said sum of $846.72 tendered by the plaintiffs. (6) That the plaintiffs are entitled to take nothing by the complaint or the defendant Rhodes anything by his cross-complaint. Nos. 7 and 8 are conclusions as to costs.
By the judgment of the court the plaintiff in said fdreclosure suit was given a lien on the proceeds of the sale of $345, and the cross-complainant, William S. Taylor, was given a lien against such proceeds in the sum of $268.75, which" respective sums were to be paid out of the proceeds of such sale, and the over-plus, if any, to be paid to appellant Kenney. The effect of this judgment was the same as if said appellant Kenney had been a judgment creditor with a separate lien, subject and second to the liens of said Barnard and said Taylor.
Under these facts we have no hesitation in saying that equity and good conscience require that appellant Kenney should have been permitted, under §§814, 815 Burns 1914, §§771, 772 R. S. 1881, and upon complying with the terms of such sections, to redeem said real estate from the sheriff’s sale thereof, and upon tender of the sum of $846.72 to appellee Stein, Jr., clerk, the same should have been accepted in redemption, and a proper certificate thereof should have been issued by the clerk to said appellant Kenney.
Other questions are presented for our consideration, but we do not deem it necessary to discuss them.
The judgment is reversed, with instruction to the trial court to restate its conclusions of law in harmony with this opinion, and the costs of this appeal are taxed to the appellees.