42 Ind. App. 445 | Ind. Ct. App. | 1908
The transcript before us sets forth the record of a suit commenced in April, 1903, by the Union Central
On the same day Fickle filed his petition in which he stated that he was the owner of the Jeremiah and John-Casey mortgage, the foreclosure of which had been ordered in this cause; that, upon the order for foreclosure of the plaintiff insurance company’s mortgage made in this case, the mortgaged property was sold March 12, 1904, to William Luken; that he redeemed the real estate from that sale May 25, 1905, and had the same sold on a vendi, William Luken becoming the purchaser for $4,900; that of the purchase money, $3,721.70 was necessary to pay the redemption money and the judgment by virtue of which he redeemed from the sale; that there remained a surplus of $1,178.30 in the hands of the court for distribution; that he held and was the owner of the Jeremiah Casey mortgage executed April 14, 1899, for $915, and the John Casey mortgage executed January 8, 1901, for $1,000; that these liens were the oldest unsatisfied liens-on the real estate. Prayer that the court order the distribution of the surplus according to law and the payment of said surplus to him.
To this petition Mary E. Casey demurred, but we find no ruling in the record upon the demurrer. Continuing, the record shows that thereupon; it appearing to the court that the surplus arising from the redemption sale in the cause (stating its title) for the payment of the redemption money was $1,126.80, and that the amount of the lien of David D, Fickle, assignee of Jeremiah Casey, which was the
If we are correct in holding that a junior mortgage may be foreclosed after the foreclosure of a senior mortgage on the same land, no reason has been pointed out authorizing us to hold that the special findings of the court were not sustained by sufficient evidence or were contrary to law, and no other matter properly assignable in a motion for a new trial was included in the several motions therefor by Mary E. Casey, Anton J. Lintz or William Luken. Pickle redeemed as the owner of a junior judgment, and caused a vendi sale of the land. The sale produced a surplus. When the matter of the distribution of this surplus was determined by the court, he was a judgment creditor in the suit upon the junior mortgages.
Reliance is placed by counsel for Mary E. Casey upon §3052 Burns 1908, §2508 R. S. 1881, which provides that “in all cases of judicial sales of real property in which any married woman has an inchoate interest by virtue of her marriage, where the inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale, such
16. While the surplus was still in the control of the court, Mary E. Casey, by her petition, sought the protection of her interest in it, and contested with the individual judgment creditors for its possession. If she had such interest as she claimed, her application was- not wholly untimely. The value of the inchoate interest of the wife in the land of her husband, when it is sold under execution or decretal order and the title vests in the purchaser, is one-third of the value of the land, except as otherwise provided by statute. Marmon v. White, supra. The value of the real estate for the purposes of this case may at least be fixed at the amount paid for it by Luken at the resale. After the payments required by the statute out of the purchase money there remained as a surplus less than one-third the value of the property.
The spirit of the statute before mentioned, relating to "rights of a married woman upon a judicial sale of her husband’s real estate, as that statute has been applied by our courts, requires us to hold, under the pleaded facts, that the entire surplus should -go to Mary E. Casey.
Eoby, C. J.’ .absent.