34 Ind. App. 217 | Ind. Ct. App. | 1904
This action is founded on a complaint in ejectment, and was commenced by the appellant as plaintiff, and tried in room two of the Marion Superior Court, the lion. Vincent G-. Clifford presiding pro tem.
The appellant claims that he is the owner in fee simple of the real estate described in the complaint, and, as such owner, is entitled to possession. He claims title by reason of two delinquent tax deeds and a sheriff’s deed. The sheriff’s deed rests on a decree and sale in cause Ho. 59,969, tried in room one of the Marion Superior Court. Appellee Mary K. Russell claims that each of these deeds is invalid, and that she owns said real estate. Mrs. Rpssell,
In her paragraph of cross-complaint, Mrs. Russell alleges that she owns the real estate in question; that the appellant’s claim of title rests on a sheriff’s sale to him under a decree of the Marion county superior court in cause No. 59,969, room one, in favor of the Marion Bond Company; that at the time of such judgment plaintiff had no legal existence; that before said decree was rendered her husband inquired of appellant, who was the manager and attorney for said company, as to assessments against her said real estate and other lots owned by her; that the appellant gave him a statement of the assessments against his property, which he paid, informing him that said company held no other assessments against either of them; that, relying on this information, she paid no further attention to said cause No. 59,969; that by oversight and negligence the appellant failed to include her said real estate in said statement ; that said real estate was worth $4,000, and was sold under said decree for $5.13 and costs, of which sale she had no knowledge until the year for redemption had expired; that by reason of these facts .the judgment of foreclosure is illegal and void, and should be set aside, and that she be allowed to defend against said claim.
The second paragraph of cross-complaint was filed on the
The third paragraph of cross-complaint was filed the 28th day of April, 1903- In .said paragraph the facts stated in said first and second paragraphs are substantially repeated, and in addition it is alleged that the decree in said cause Bo. 59,969 was for $10.15 and costs, and on its face shows for a much larger sum than was due under the law, and as thus rendered is in fraud off her rights; that the appellant, either by oversight, or with the intention to defraud her out of her property, omitted to state to her husband that the alleged corporation held the alleged assessments against her; that the judgment and decree upon the face of the public record shows that the same was illegal and void, and under the same sale was made to the appellant; that within a year after the sale her husband redeemed the real estate from the sheriff’s sale, but if there is any balance required to effect a complete redemption it is because the appellant fraudulently omitted to state to her the full amount required for that purpose; that, in any event, on the 24th day of December, 1901, prior to the expiration of the year of redemption, she q>aid said Richcreelc a part of the money so to redeem it, and that, in good conscience and equity, she should be allowed to complete the redemption by paying the balance; and that the sheriff’s deed should be held void for these reasons, and set aside.
In her fourth paragraph of cross-complaint the only new matter contained is that the sheriff made an attempt to sell said real estate, which sale is illegal and void for the
The prayer to each paragraph may be generally stated as asking that the judgment'be declared null and void and set aside; -that appellee be permitted to pay appellant’s claim with interest, etc.; that her title to the property in question be quieted, and for other proper relief. The case was put at issue by general denial of the first, second, third and fourth paragraphs of said cross-complaint.
The court made in substance the following special finding of facts: In the year 1883 the defendant Mary K. Russell, wife of the defendant Isaac Russell, became owner in fee simple of the real estate described in the complaint, from which time to the present she and her codefendant have been in possession of and occupying the same as a residence; that said lot is located at the southwest corner of Seventeenth street and Ashland .avenue, in the city of Indianapolis; that the value of the whole of said lot and improvements is now, and has been for’ three years last past, $3,800; that the west portion of said lot is worth $15 per front foot, fronting on Seventeenth street; that said lot is susceptible of division, and could have been syold in parcels without material injury to the value of the whole; that the taxes against said real estate for the years 1895, 1896 and 1891 were not paid and became delinquent, and for said delinquent taxes said real estate was sold on the
.That the said Richcreek paid the following amounts, additional taxes, upon said lot, to wit: On January 23, 1902, tax for 1900, amount, $48.81; on April 26, 1902, the
That the plaintiff Seth M. Richcreek, acting as the attorney for the Marion Bond Company, trustee, and who was also president of said company, as such attorney, commenced an action iff the Superior Court of Marion county, Indiana, on February 2, 1900, wherein the Marion Bond Company, trustee, was plaintiff, and Minnie A. Boyd, Francis M. Stoop, Mary K. Russell and others were defendants, said cause being No. 59,969; that said cause was brought for the purpose of enforcing a sprinkling assessment against separate pieces of property owned by the defendants severally; that all of said defendants were notified of the pendency of said action by service of summons except the defendant Francis M. Stoop; that on October 18, 1900, the plaintiff in said cause dismissed the same as to all of said defendants except Mary K. Russell, Isaac Russell and Francis M. Stoop, and that no part of the court costs in said action was taxed against the plaintiff the Marion Bond Company, trustee, as the result of the dismissal aforesaid; that on said 18th day of October, 1900, a judgment was rendered in said cause against said lot number nine owned by Mary K. Russell, and enforcing a sprinkling assessment against the same, as shown by said decree, amounting to the sum of $5.13, and the further sum of $5.73 as attorney’s fees thereon; that the judgment in said cause No. 59,969 was rendered upon the default of all the defendants; that the complaint in said cause contained no allegations or averments that said lot number nine was not susceptible of division, of that it could not be sold in parcels, but that the decree rendered found that said lot number nine was not suspectible of division, and that it should be sold as a whole, without relief from valuation or appraisement laws; that said decree did not find the amount of the costs or apportion them among the several
That, a short time prior to the rendering of the judgment in said cause No. 59,969, the defendant Isaac Russell, acting for himself and his wife Mary K. Russell', visited the office of the plaintiff Richcreek, and made inquiries as to the amount of assessments which he, the said Richcreek, had, either for himself or the Marion Bond Company, against his property, meaning thereby to inquire for all assessments against himself and his wife, and supposing he was so understood; that said Richcreek, in response to such request, gave him the amount of the assessments against his property individually, which was paid; that the Russells, believing that they had paid the assessments due upon the property in said cause No'. 59,969, paid no further attention to the action; that neither of the Russells had any actual knowledge of the rendition of the judgment against said lot, and had no actual knowledge of the sheriff’s sale in such judgment, until after the year for redemption had expired; that the plaintiff purchased the real estate described in the complaint at the sheriff’s sale on the 12th day of January, 1900, for $37.19, and, having paid the amount of the bid, the sheriff executed and de
Upon the foregoing finding of facts the court stated conclusions of law as follows: (1) That said tax deeds are insufficient to convey a fee simple title to the grantee; (2) that the plaintiff Seth M. Richcreek holds a good and valid lien against the property described in the complaint for taxes paid, penalties, interest, expenses -necessarily incurred in the execution and recording of deeds, and street and sewer assessments paid by him, in the sum of $665.15 ; (3) that the sheriff’s sale made in cause No. 59,969 is illegal and void, and should be set aside, annulled and held for naught; (4) that the cross-complainant Mary K. Russell, upon the payment of the sum due to the plaintiff, under his tax liens and said judgment, within sixty days, is entitled to have the title to said lot described in the complaint quieted in her; (5) that upon such payment a commissioner shall be appointed in this cause to convey by deed to her whatever apparent interest said Richcreek may hold against said lot by virtue of said tax debts.
Upon the foregoing feonclusions of law, the court rendered judgment in substance as follows: That the tax deeds are invalid and convey no title to the respective grantees; that the appellant holds a lien against said real estate on
Appellant claims that the trial court erred: (1) In overruling his demurrer to the first paragraph of the cross-complaint; (2) in the first, third and fourth conclusions of law; (3) in sustaining appellees’ motion for a judgment; (4) in adjudging that said tax deeds are invalid; (5) in adjudging that said sheriff’s sale is illegal and should be set aside, and that Mary K. Eussell be permitted to satisfy the judgment under which said sale was made by paying the amount due, with interest and costs thereon, within sixty days; (6) in adjudging that Mary K. Eussell, on paying said sum of $665.15, and interest thereon, and the costs of this proceeding, and the sum required to satisfy said judgment, interest and costs, rendered in cause Eo. 59,969, within sixty days after the rendition of this judgment, shall be entitled to have the title to said real estate quieted in her.
Where the law is not complied with, the sale conveys no title. Where there is personal property primarily liable for the payment of taxes, it must be exhausted before proceeding against the real estate. Hannah v. Collins (1884), 94 Ind. 201; Morrison v. Bank of Commerce (1882), 81 Ind. 335; Schrodt v. Deputy (1882), 88 Ind. 90; State, ex rel., v. Casteel (1887), 110 Ind. 174; Millikan v. Patterson (1883), 91 Ind. 515.
Section 8571 Burns 1901, Acts 1891, p. 199, §153, enumerates the specific duties of the county treasurer and county auditor with reference to demand and distraint of personal property for collecting taxes, namely:. (1) Make a delinquent list; (2) list must be certified to be correct; (3) must call on every taxpayer, and demand payment and distrain personal property, etc.; (4) if unable to collect, must make return showing diligent search.
Section 8572 Burns 1901, Acts 1891, p. 199, §154, forbids the county auditor to credit" the county treasurer with any uncollected delinquencies unless the treasurer shall show by return, verified by his oath, that he diligently sought for personal property to pay the tax.
A tax deed vests title only when all of the requirements of the law have been complied with by the proper officers charged with the duty of assessing and collecting taxes. Earle v. Simons (1884), 94 Ind. 573. The law distinguishes between sales that are void and those that are ineffectual to convey title. “Our cases uniformly hold-that if a taxpayer has personal property, a sale of his real estate is ineffectual to convey title, but is effectual to transfer the lien. Stale, ex rel., v. Casteel, supra. See §§8640, 8641 Burns 1901, Acts 1891, p. 199, §§222, 223.
Appellant claims that the trial court was without authority to give appellee sixty days in which to. pay the judgment entered. This action was warranted by §8641 Burns 1901.
The special findings have been set out at perhaps greater length than absolutely necessary. This has been done for the purpose of more clearly showing the features of the case than would appear from a briefer summary, and renders extended comment upon the facts unnecessary.
Judgment affirmed.