98 Ind. 255 | Ind. | 1884
The material questions arise on the special ■finding. That finding is, substantially, this: Achilles Eddy died the owner of the land in controversy, leaving a widow and four children; in 1869 the widow married Luman Lob-dell; in August, 1874, Myron G. Eddy, a, son of Achilles Eddy, conveyed a one-fourth interest in the land to Lobdell, and Lobdell executed a mortgage to his grantor for the purchase-money; both the deed and the mortgage contained full covenants; at the time the conveyance was made Myron G. Eddy had no interest in the land except that inherited from his father and the contingent interest as the possible heir of his mother; in March, 1873, Eugene Eddy, another son, conveyed his interest, describing it as one-fourth, to Lobdell; in April of that year Myron G. Eddy assigned two of the purchase-money notes to the appellee, who instituted a suit of foreclosure against Lobdell and wife in September, 1878, and in which suit Lobdell filed an answer; pending that suit Harriet Eddy, a daughter of Achilles Eddy, conveyed her interest to the appellant; in 1878 an action for partition was commenced by the appellant against Lobdell and wife and George Eddy, a son of the intestate; the appellee was not a party to that suit; the foreclosure suit came on for trial in October, 1879, and a judgment was rendered foreclosing the mortgage on one-fourth of the land, and directing its sale; a sale was made and a deed was executed by the sheriff conveying it to the appellee; the judgment in the partition suit was that the land was indivisible, and a sale was ordered, at which
■The general rule is that where the mortgage contains full •covenants, and the mortgagor has at the time no title, or has a defective title, but subsequently acquires a perfect title, it will enure to the benefit of the mortgagee. 1 Jones Mortg., section 68; Thomas Mortg. 17; Rawle Cov. (4th ed.) 440. Our own decisions have adopted and applied this general rule to cases of conveyances by deed, and there is no reason why the 'rule should not apply to grants by way of mortgage. King v. Rea, 56 Ind. 1; Shumaker v. Johnson, 35 Ind. 33, vide opinion p. 38; Burton v. Reeds, 20 Ind. 87, see opinion p. 93.
The principle which underlies the ruléis the same whether the instrument be a deed or a mortgage. 3 Washb. R. P. (4th ed.), pp. 107, 118. The question here is whether the general rule applies, and whether it so operates as to fasten the mortgage upon the interest in the land owned by the mortgagor at the time it was executed, and also upon the estate subsequently vested in him by the death of his mother.
The principle upon which the general rule rests is that of equitable estoppel, and such an estoppel can never exist unless good conscience and equity require it in order to promote justice. Justice is not promoted, nor good conscience obeyed, by permitting a grantor, who has assumed to convey land to which he has no title, to insist that his grantee, in mortgaging the land back to him for the purchase-money, fastened the lien, not only upon the estate conveyed by the grantor’s deed, but also upon an estate subsequently acquired and from another source. It is not difficult to perceive and mark the difference between such a case and one in which the mortgagee
Our conclusion, that equity will not allow a grantor who receives back, in the same transaction, a mortgage for the purchase-money, to extend the lien of the mortgage to after-acquired property, is supported by the adjudged cases, but the decisions are placed upon somewhat different grounds. In the case of Brown v. Phillips, 40 Mich. 264, the court, in speaking of the effect of a purchase-money mortgage, said: “ On each occasion the mortgage was given simultaneously with the grant, and Drake’s seisin was only momentary. He acquired nothing more than the interests his grantors possessed, and his mortgages attach to nothing which he did not then own.” The authorities cited by the court, among them
The only case we have been able to find that at all opposes the doctrine of the authorities we have cited is that of Hitchcock v. Fortier, 65 Ill. 239. The question is not much discussed in that case, nor are any authorities at all referred to, and we are unwilling to sanction the doctrine it declares. We prefer to follow the cases approved by an author who deservedly occupies a high place among law writers, and who says of one oí the cases we have cited: “And the law as thus stated is supported both by reason and authority.” Rawle Cov. 451. The court in Hitchcock v. Fortier, supra, assume the very point in issue; that this is so, appears in the following extract: “ The only question is, whether the alleged debt from McFadden to Fortier is a valid debt. If it is, Fortier is entitled to the same benefit from his mortgage as any other mortgagee, and can claim the application of the same rules of construction that would be applied to any other mortgage.” It is evident from what has been said and from the authorities cited, that this is, we respectfully submit, radically erroneous. By all the analogies of the law, upon all the principles of equity, a covenantor in a deed occupies toward one who mortgages back the laud granted to him a position very different from that occupied by a mortgagee who did not undertake to create title in his mortgagor. Rawle Cov. 445, auth. n. There is another assumption in Hitchcock v. Fortier, supra, that can not be made good. An after-acquired title does not in all cases where there are covenants pass to the grantee or mortgagee; it passes only when equity requires, or when the parties intended it should pass. Rawle Cov. 445., auth. n. Equity does not require that a grantee should mortgage back a greater estate than that his grantor professed to vest in him, nor can it be implied that a grantee
The next question which requires attention is as to the effect of the decree in the foreclosure suit. In order to understand the matter properly, it is necessary to group the facts relevant to this inquiry together. The mortgagee, at the time of the execution of the mortgage, had a direct interest in the land as the heir of his father, and he had also some interest — it is not material to inquire what — contingent upon the death of his mother; the suit to foreclose the mortgage was brought in September, 1878, and was pending at the time the partition suit, out of which the appellant’s rights grow, was begun; the decree in the foreclosure suit fixed the interest of the mortgagee as an undivided one-fourth, in accordance with the description in the mortgage and the prayer of the complaint, and in that suit, upon the issue made by Lobdell’s answer, was tried the right of Lobdell to damages for a breach of covenant.
It appears from these facts that the appellant was a purchaser pendente lite, and he was, therefore, bound by the decree in the pending suit. It is perfectly well settled that such a purchaser is bound by the decree or judgment in which the pending litigation results. Wade Notice, section 337; Stout v. Lye, 103 U. S. 66; Eyster v. Gaff, 91 U. S. 521; Daniels v. Henderson, 49 Cal. 242.
We are not unmindful of the rule that it is only one who is a purchaser from a party or a privy to the pending litigation that is bound by the decree. As to the interest of Lob-dell and of Myron G. Eddy, the appellant must claim to have purchased from parties to the suit then pending, for he could get the interest in no other way than through them.
We think that there can be no doubt that the decree bound Eddy as the assignor of the mortgage and Lobdell as the mortgagor. A controlling purpose in a suit to foreclose is to obtain a decree to sell the whole estate embraced in the mortgage. Williams v. Bankhead, 19 Wall. 563; Hagan v. Walker, 14 How. 29; Story Eq. Pl. 197; 4 Kent Com. 184; Bliss Code Pl. 96.
The object of the provisions of our code concerning parties and decrees is to settle in one comprehensive action all conflicting claims of title, and adjust all rights and equities in the property. Masters v. Templeton, 92 Ind. 447; Woodworth v. Zimmerman, 92 Ind. 349 ; Hose v. Allwein, 91 Ind. 497;
As the question of what property the mortgage covered and what should be decreed sold was involved in the issue, it was conclusively adjudicated, and, under the rule laid down as early as Fischli v. Fischli, 1 Blackf. 360 (12 Am. Dec. 251), the matter is forever at rest. The rule to which we have referred is repeated in most of the cases cited, and has been again and again reiterated. State, ex rel., v. Krug, 94 Ind. 366; Rose v. Rose, 93 Ind. 179, vide p. 185; Behrley v. Behrley, 93 Ind. 255; Bake v. Smiley, 84 Ind. 212, vide p. 223; Hays v. Carr, 83 Ind. 275; Sauer v. Twining, 81 Ind. 366; Green v. Glynn, 71 Ind. 336; Crosby v. Jeroloman, 37 Ind. 264. It would unsettle titles, and produce endless confusion to permit parties to assert in a collateral proceeding, that a decree directing the sale of an undivided one-fourth part of a parcel of land was erroneous, for the reason that the court had authority to direct the sale of only one-sixth or one-seventh. All such matters are concluded by the decree; if it were otherwise there would be little force in decrees and small value in judgments.
We are satisfied that the judgment below stands upon the general principle we have just discussed, and is right.
The court permitted the appellee to correct the description of the land mentioned in his complaint, and also permitted a corresponding correction in the interlocutory order and in the report of the commissioners. There was no error in this, as is expressly ruled in Randles v. Randles, 63 Ind. 93.
Judgment affirmed.