Riley v. Davis, No. 9539

No. 9539 | Ind. | May 15, 1882

Worden, C. J.

Frederick A. W. Davis and others, partners under the firm name and style of The Indiana Banking Company, filed'their petition in the court below, alleging the recovery of a judgment bythem intheMarion Superior Court, .against Benjamin F. Riley, for nearly $4,000, on the 6th of ■September, 1876; that an execution was issued upon the judgment which was levied upon certain real estate of Riley, described, situate in Marion county, Indiana, -which real estate was sold on the execution, the said Davis being the purchaser,, and receiving the certificate of purchase, which he afterwards assigned to John L. Ketcham. The land not being redeemed at the expiration of the year, the sheriff made a deed to Ketcham; that the purchase was made, and the assignment of the certificate to Ketcham and the deed to him (as matter of convenience), for the benefit of the petitioners; that the sale was made April 14th, 1877; that on the 16th of May, 1877, said Biley, being insolvent, made an assignment of all his assets, including the right to redeem the real estate in question, to Horatio C. Newcomb, as trustee for the benefit of creditors; that Newcomb, as such assignee, immediately took possession of the real estate mentioned, and continued to hold the same until the expiration of the year for redemption, and received the rents of the property in the mean time, amounting to the sum of $1,800. The petitioners prayed that the rents thus received by Newcomb might be paid to them and not distributed among the general creditors of Biley. See Davis v. Newcomb, 72 Ind. 413" court="Ind." date_filed="1880-11-15" href="https://app.midpage.ai/document/davis-v-newcomb-7043854?utm_source=webapp" opinion_id="7043854">72 Ind. 413.

Before any determination of the petition thus filed was had, the appellant herein, Elizabeth J. Riley, wife of said Benjamin F. Biley, intervened and filed her petition, alleging most of the matters stated in the original petition; that she had been the wife of said Benjamin E. for more than ten years then last past; that the property was sold on the judgment against her husband, and that she had, at the time of the sale, an inchoate right to one-third of the property, as the wife of said Benjamin P.; and .she claimed one-third of the rents thus in the hands of the assignee, Mr. Newcomb, the property not having been redeemed, and the sheriff’s deed having been executed.

To this intervening petition of Mrs. Biley, the original petitioners, Davis and others, filed a demurrer for want of sufficient facts, which was sustained, and she excepted, and judgment was rendered against her in favor of Davis and others.

The question involved in the case is whether, when the sheriff’s deed was made for the property, whereby the title of Mrs. Riley became perfect under the provisions of the statute on the subject (R. S. 1881, section 2508), that title related back to the time of the sale, so as 'to entitle her to her share of the rents received by Mr. Newcomb, accruing between the time of the sale and that of the expiration of the year allowed for the redemption of the land.

The cases of Hollenback v. Blackmore, 70 Ind. 234" court="Ind." date_filed="1880-05-15" href="https://app.midpage.ai/document/hollenback-v-blackmore-7043552?utm_source=webapp" opinion_id="7043552">70 Ind. 234, and Elliott v. Cale, 80 Ind. 285" court="Ind." date_filed="1881-05-15" href="https://app.midpage.ai/document/elliott-v-cale-7044908?utm_source=webapp" opinion_id="7044908">80 Ind. 285, furnish a conclusive answer to this question. In the case first cited, it was held that the title of the purchaser at sheriff’s sale, he having received his deed at the end of year, the land not having been redeemed, relates back to the time of the sale; also that, where the wife conveyed her interest during the year allowed for redemption, the land not being redeemed .at the end of the. year, and the execution purchaser having received his deed, the title of the purchaser from the wife relates back to the time of the execu-: tion sale.

The second case cited holds that where the wife dies during the year allowed for redemption, the land not being redeemed at the end of the year, and the purchaser having received his deed, her title’will be deemed to have been vested in her from the time of the sale, and will descend to her heirs.

We are not disposed to depart from these decisions; and they establish the right of the appellant to her share of the rents in the hands of the assignee, because they establish her title to her share of the property from the time of the sale on execution.

The demurrer to the appellant’s petition should have been overruled.

The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.