93 Ind. 447 | Ind. | 1884
— The appellee James S. Smith brought this
The appellant Augustus E. Pattison is the husband of said Pinkie W. Pattison, and for that reason was made a defendant to the action.
The third paragraph of the answer, to which the demurrer ‘ was overruled, was the same as the first paragraph, except that it only purported to be and was a sufficient answer as to the two-thirds of the real estate so mortgaged.
The question presented by the appellants for our consideration is whether'the appellee Elmira E. Watson, as the wife of sáid Daniel A. Watson, had an interest in said real estate at the time of the execution of said mortgage ? The case comes directly within the provisions of section 2508, R. S. 1881. At the time of the sheriff’s sale to Catherwood the said Elmira E. Watson had an inchoate interest in said real estate as such wife, which interest became vested and absolute as soon as said sale was made, and her title thereto when consummated, as it was, by the execution of the sheriff’s deed, related back to the time of the sale, when, in legal contemplation, she became the absolute and vested owner of one-third of said real estate. Elliott v. Cale, 80 Ind. 285; Summit v. Ellett, 88 Ind. 227; Riley v. Davis, 83 Ind. 1. By the provisions of the statute to which we have referred, her inchoate interest could not have been, and was not sold by the sheriff on said execution, as all that he could sell, and did sell, was the two-thirds of said real estate. Taylor v. Stockwell, 66 Ind. 505; Summit v. Ellett, supra. In this case the mortgage was executed before the execution of the deed by the sheriff, but the action for its foreclosure was not brought until after the sheriff’s deed was made. The fact that the
The only reason assigned for a new trial that is urged in this court by the appellants is that the court erroneously rendered a personal judgment against the appellee Daniel A. "Watson and Elmira E. Watson for the amount of the note secured by said mortgage, although they were only constructively notified of the pendency of the action. _ If such an error occurred, the Watsons are the only persons affected thereby, and they alone can complain of the error. See Cool v. Peters Box and Lumber Co., 87 Ind. 531.
Per Curiam. — The judgment of the court below is affirmed, at the costs of the appellants.