46 Ind. App. 719 | Ind. Ct. App. | 1910
This suit was brought by the appellee against appellants and certain other parties, to quiet title to certain real estate described in the complaint, and to enjoin appellants from asserting title thereto. Cross-complaints were filed by defendants Charles J. Pilliod, the National Mill, "Water and Light Company and the Ohio and Indiana Rail
It appears from the evidence that appellee claims to have derived title to the property described in the complaint, from two sources: (1) Through a deed from the receiver in the case of Port Wayne Trust Company v. National Mill, Water and Light Company et al., by which appellee claims to have acquired title to certain specific pieces of real estate, described in the complaint; and (2) by a deed from the receiver in the ease of Gus P. Smith v. Ohio and Indiana Railway Company, by which it claims to have acquired title to the railroad property described in the complaint.
It appears from the evidence that on January 14, 1898,. and for some time prior thereto, appellant, Charles J. Pilliod and William G. Croxton and John J. Kinney were the owners, as partners, of certain real estate described in the complaint, consisting of a gristmill property, an elevator, an electric light plant and a water plant; that they were engaged as partners in conducting various business enterprises, in which said property was used, among others, that of operating a gristmill, an elevator and a light and water plant which supplied the town of Angola and its citizens with light and water; that the legal title to the real estate owned by the firm was held in the names of William G. Cro'xton and John J. Kinney; that on said date the members of said firm, associating themselves with a son of William G. Croxton and a son of John J. Kinney, undertook to organize a corporation for the purpose of conducting the business theretofore carried on by the firm, to be known as the National Mill, Water and Light Company, and to this end filed articles of association in the office of the recorder of Steuben county, in which the property wan located and the business was to be conducted, and in the office of the Secretary of State of the State of Indiana.
Upon the filing of said articles of association with the Secretary of State and with the recorder of said county, a certificate of incorporation was issued in due form by the Secretary of State purporting to incorporate said National Mill, Water and Light Company, and thereupon said William G. Croxton and John J. Kinney executed a deed conveying said real estate owned by said firm to said corporation, and the members of said firm assumed to turn over to said corporation all the property of the firm, and thereafter the various business enterprises that had been conducted by said partnership were carried on in the name of said corporation,
On July 1, thereafter, said assumed corporation executed to the Port Wayne Trust Company, as trustee, a mortgage to secure an issue of bonds of said assumed corporation in the sum of $30,000. These bonds were sold by said trustee, and the proceeds received by the officers of said corporation, assuming to act for the corporation, and used in said business. Afterwards suit was brought by the Port Wayne Trust Company to foreclose said mortgage, and upon its petition, a receiver was appointed to take charge of and conserve the property described- in the mortgage.
Appellants National Mill, Water and Light Company and Charles J. Pilliod, and the aforesaid John J. Kinney and William G-. Croxton, were all made parties defendant to said foreclosure suit, and each was challenged by the complaint to set up any claim against plaintiff therein to the premises described in the mortgage.
To this complaint appellant Pilliod filed his answer and cross-complaint, in which he claimed to own a portion of the property described in the mortgage. The National Mill, Water and Light Company also filed an answer in said causé, and an answer was filed by plaintiff therein tG the cross-complaint of Pilliod. While the case was pending some of the general creditors of said corporation filed an intervening-petition in said suit, in which they alleged the indebtedness of the corporation to them, and averred its insolvency and the liability of its assets becoming wasted, and prayed that the powers and duties of the receiver be enlarged to those of a receiver of an insolvent corporation, for the benefit of all the creditors of the company. No formal notice of the pend-ency of this petition was served on defendant National Mill, Water and Light Company, but the record in the ease recites as follows: “Comes now the plaintiff, by -, its. attorney; comes also the National Mill, Water and Light Company, by--, its attorney; comes also Arthur
It also appears from the record that, after the order of the court was made enlarging the duties and powers of the receiver to that of a general receiver of an insolvent corporation, for the benefit of all its creditors, appellant Pilliod filed in said ease a claim against the trust so created, and asked to have it allowed by the court as a preferred claim.
It further appears that after the receiver had, upon orders made by the court in said proceeding, sold all of the other property belonging to said corporation, he filed his petition therein, setting forth the fact that all the other property and assets of the corporation had been administered by him, except the mortgaged property, and that the general debts still remained unpaid, and praying an order for the sale of the mortgaged premises, and the cause, as between the original plaintiff in said proceedings and all the defendants therein,, being at issue, the issues thus presented, together with the receiver’s said petition to sell said real estate, were all submitted by the parties to the court for trial, hearing and decree, and the whole matter, being thus before the court upon this submission, the court having heard all the evidence in the case, made a finding in favor of plaintiff in the case against all of the defendants, that it was entitled to a foreclosure of the mortgage sued upon, subject to certain rights in some of the parties. It also made a finding in favor of the receiver upon his petition, and that he was entitled to an order of sale of all the property in his possession, which was the property described in the mortgage. This finding was.
The issues raised by these objections were heard by the court and adjudged against said appellants.
It is said in the case of Ulrich v. Drischell, supra, that “while it is true that a proceeding to foreclose a mortgage is not an action to qniet title, it is also true that in very many essential respects it is closely analogous. The parties are brought into court in such suit for the purpose of adjusting-all equities, rights and interests in the land, and the question of their rights to the land is one of the principal and controlling questions of the case. * * * ' The subject of the controversy is a thing — the mortgaged real estate — and this the decree directly affects, for it settles the rights of the parties to it, measures their equities and adjusts their interests.” Whatever question the town of Angola or any one might raise regarding the assignability of its contract with Croxton, Kinney and Pilliod, with reference to the light and water or the sale by the receiver of the franchise granted by it to said firm, appellant Pilliod cannot now be heard to raise these questions against one holding title under the decree of the court referred to.
Afterwards said Ohio and Indiana Railway Company instituted a suit to set aside the receiver’s sale. The complaint attacked the sale on the ground that the court possessed no power or authority to make the sale of the company’s franchises, that its franchises and property were linked together, that the purchaser, a natural person, had no right to purchase the property, and that the sale was upon a foreclosure of a mechanic’s lien. This ease was put at issue and tried, and a finding and judgment rendered against said company. This adjudication conclusively bars appellant Ohio and Indiana Railway Company from raising any question affecting
"We find no reversible error in the record in this case. Judgment of the court below affirmed.