147 Ind. 148 | Ind. | 1896
Lead Opinion
Appellant instituted this action to quiet his title to certain real estate situated in White county, Indiana. He alleged in his complaint that he was the owner in fee simple of the lands described, and that the defendant’s claim of title was, “unfounded” and a cloud upon his title, and he demanded that his title be quieted, and that appellee’s claim be adjudged null and void. Appellees answered the complaint by a general denial, and under the issues thus joined, a trial was had, and there was a special finding of facts, and as a conclusion of law the court found that appellant was not entitled to have the title of the real estate in dispute quieted against appellee, and rendered judgment accordingly. The error assigned
Upon the part of appellee’s counsel it is contended that the foreclosure proceedings were valid, and they further say that conceding that the sheriff’s deed did not vest the title to the land in the appellee, still, a lien was created by the drainage proceedings, which was discharged at least in part by the amount bid and paid at the sheriff’s sale by the purchaser, from whom appellee obtained the certificate of purchase, and this lien to the extent of the amount discharged by the sale inured to the benefit of appellee. That appellant is not entitled to cut off this lien by a decree quieting title without first paying or tendering the amount due to appellee. This we think is the controlling, question to be considered in this appeal, and a determination thereof does not require us to decide as to the validity of the decree of foreclosure. The facts show that the land at the time Byroad petitioned the circuit court for the construction of the public ditch, appeared upon the tax duplicate in the name of Alexander S Brown.
Section five provides that “the filing of the petition shall be deemed notice of the pendency of the proceedings to all persons whose lands are named in the petition, and the filing of the report of the commissioners locating the work and fixing the amount of the assessments, shall be deemed notice of the pendency of the proceedings to all persons whose lands are named therein, and not named in the original petition, and the amount of the assessments made or approved and confirmed by the court, shall be a lien upon the lands so assessed, from the time of filing the petition, except where lands are omitted in the petition and afterward assessed and reported by the commissioners, and, as to such lands, the assessment shall be a lien from the date of filing the report of commissioners.”
We do not mean to say, however, that this will bar th§ actual owner upon seasonably applying to the court from being admitted to. defend, as it is the policy of the law to permit' the real party in interest to defend. Bell v. Cox, 122 Ind. 153. Upon the face of the facts as they appear in the special finding it is disclosed that a lien was fixed and attached to the land in dispute for the benefits assessed, and it does not appear that appellant or any one in his behalf has discharged the same, or has offered so to do. If no title passed to the appellee by the sheriff’s deed for the reason as insisted by appellant that the forclosure and sale were invalid, nevertheless he would be, at least, entitled to be subrogated to the lien of the State to
By his complaint the appellant alleged that he was the owner in fee and appellee’s claim or interest which he asserted was unfounded. The latter was thereby challenged to bring forward and assert as a legal or equitable defense all claims, title, interest or liens of whatever character which he had and held, and in failing to do so, he would by a decree quieting appellant’s title have been forever precluded from asserting the same. This is the firmly settled rule and has been approved and enforced many times by this court. The appellee seems to have responded to appellant’s challenge and properly availed himself of a defense under his statutory denial in accordance with section 1055, R. S. 1881. Under his general denial he was authorized to introduce any facts upon the trial which according to the principles of equity, as applied by courts of- chancery, would defeat the appellant in obtaining a decree quieting his title to the land in question. East v. Peden, 108 Ind. 92. If it appeared that appellee had any interest in the land, or existing lien, it could not be cut off by an action to quiet title. Johnson v. Murray, Admr., 112 Ind. 154. Appellee was not compelled, as insisted by appellant, to become an actor by way of cross-complaint, asking affirmative relief, but he had the right, under his answer, to rely upon any equitable or legal defense to defeat the claim of his adversary. East v. Penden, supra.
As we have heretofore said, the inquiry need not be directed to the validity of the foreclosure proceedings, and the sale thereunder, for if we concede the invalid
This question we are of the opinion must be answered in the negative. It would be unjust to permit the appellant to have a recovery quieting his title, and in this manner escape the payment in whole or in part of a valid lien existing against the realty. As the facts found show at least a substantial claim in favor of appellee, it cannot be cut off by a decree quieting title, unless it is shown that the appellant paid or tendered the amount due thereon. It is clear, we think, that there is no principle of law or equity that will sustain the contrary. While we do not deny that the court may in a proper case enter a qualified decree declaring the fee to be in the plaintiff, subject <o the lien asserted by the defendant, .yet it is a rule of general application that where one seeks to quiet his title against one holding and asserting a valid lien he cannot do so unless he pays or tenders the payment of the lien. This principle is supported by many decisions of this court. See Shannon v. Hay, 106 Ind. 589; Ragsdale v. Mitchell, 97 Ind. 458; Montgomery v. Wasem, 116 Ind. 343; Prezinger v. Harness, 114 Ind. 491; Jackson v. Smith, 120 Ind. 520; Bisel v. Tucker, 121 Ind. 249; Montgomery v. Trumbo, 126 Ind. 331; Schissel v. Dickson, 129 Ind. 139; Browning v. Smith, 139 Ind. 280.
It follows that under the facts the appellant was not entitled to a decree quieting title against appellee.
Judgment affirmed.
Rehearing
Appellees have filed a motion to reject wliat purports to be a petition for a rehearing filed by the appellant in this cause, for the reason that it fails to conform to rule XXXVII, of this court, in not setting forth the cause for which the judgment of affirmance is supposed to be erroneous. The petition in question is nothing more than an argument, in support of the original contention of appellant and does not state any particular cause or errors by reason of which the decision of the court, as hertofore announced, is supposed to be erroneous.
It is the office of a petition for a rehearing to state or point out wherein the court erred in the result reached upon the original hearing.
The requirement of rule XXXVII conforms to good practice and should be strictly enforced. See Goodwin v. Goodwin, Exr., 48 Ind. 584; Western Union Tel. Co. v. Hamilton, 50 Ind. 181; Fortich v. Michener, 111 Ind. 472 and 486; Elliott’s App. Proced., sections 555 and 893. Parties and their counsel, in appeals to this court, are bound to keep in mind the rules which control the procedure therein, and are, required to yield obedience and conform thereto. Harness v. State, ex rel., 143 Ind. 420.
For the reasons stated, the petition is insufficient to present any question for review and is, therefore, overruled.