166 Ind. 250 | Ind. | 1905
—This is a second appeal. See Todd v. Oglebay' (1902), 158 Ind. 595. Although there were other parties below who are also parties to the record here, the real controversy is between William R. Oglebay and Lemuel S. Todd, and for the purposes of this opinion it is not necessary to explain the relations of said other parties to the litigation.
The essential facts in the case are as follows: Joab Woodruff executed a mortgage on a lot in the city of Lebanon, Indiana, and he afterwards conveyed it by deed to Todd. The latter, in turn, deeded the lot to Mary Eshelman. In each deed it was stated that the grantee assumed and agreed to pay said encumbrance. The deed to Eshelman was duly recorded. The holder of the mortgage after-wards instituted a suit, making Todd, Woodruff and Eshelman parties defendant. It was sought by said suit to hold Woodruff and Todd personally liable on their respective promises to pay said mortgage, and to procure a foreclosure as against Eshelman. Such proceedings were after-wards had in said action that a judgment and decree was rendered as prayed. An order of sale issued on the decree, under which the sheriff, on August 12, 1898, struck off the land to the execution plaintiff for a sum but slightly in excess of the amount of the costs. On January 1, 1899, Todd paid the balance of the judgment to the attorneys of the execution plaintiff, and they entered on the margin of the record what purported to be an assignment thereof to him. May 29, 1899, Oglebay, after examining the record of said foreclosure, and observing the attempted assignment of the judgment, took a quitclaim deed from Eshelman, and on July 1, 1899, he paid into the clerk’s office the amount of the sale, with interest, and obtained a certificate of redemption. Todd subsequently caused a certified” copy of said decree to be issued to the sheriff,
Judgment affirmed.