Mitchell v. Johnson

60 Ind. 25 | Ind. | 1877

Biddle, C, J.

Jesse A. Mitchell brought this suit against Isaac Johnson, on a nóte and mortgage, and recovered judgment on the note, and a decree of foreclosure of the mortgage.

There is no controversy in the case between Mitchell and Isaac Johnson; but Jesse Johnson was admitted a party defendant to the action, claiming eighty acres of the land included in the mortgage, and recovered a decree, vesting the title to the eighty acres in himself, as against both Mitchell and Isaac Johnson.

Of this part of the judgment the appellant complains. There is no doubt of the correctness of the decree as between the two Johnsons; but Mitchell insists, that Isaac had beeu in the continuous, uninterrupted, adverse possession of the eighty acres of land during more than twenty years before he made the mortgage, including with it other lands, and, therefore, that the eighty acres should also be subject to the mortgage. Admitting this to be true, it does not appear by the record that Mitchell has been injured thereby.

The evidence is all before us, and it nowhere shows the value of the remaining portion of the land, exclusive of the eighty acres. It may be, for any thing we can know from the record, that the remaining part of the land, exclusive of the eighty acres, is sufficient to pay the judgment. If so, then the decree is right, even though the eighty acres were subject to the mortgage; because the equities between the Johnsons were to be respected, provided they could be protected without injury to Mitchell. Nor does it appear in the evidence but that Isaac Johnson is solvent, and able to pay the judgment, according to its terms, even though the remaining portion of the land, exclusive of the eighty acres, should be insufficient.

We cannot reverse a judgment for intermediate errors, where, upon the whole record, it appears that the complaining party has not been injured.

The judgment is affirmed, at the costs of the appellee.