38 Ind. 393 | Ind. | 1871
The action of the court in sustaining a demurrer to the complaint is assigned for error, and this presents the only question in the case. The material facts stated in the complaint are these:
“Jeremiah S. B. Routh was indebted to Thomas B. Stan
The prayer of the complaint was to enforce the said lien, and to decree an application of so much of the said notes due from the said Canady to the payment thereof as will discharge the same, and for general relief.
We have been unable, from any allegation in the complaint, to discover what interest Jacob B. Julian has in this controversy, or why he was made a defendant. There was an affidavit filed, showing that Jeremiah S. B. Routh was a resident of Kansas, but it does not appear that any publication was made, or that he was personally served. The-record shows that there was a general appearance for the defendants. Julian and Canady filed an answer, admitting the truth of the allegations of the complaint. Spencer and Crocker demurred to the complaint. The demurrer was sustained, and the plaintiff refusing to amend, final judgment was rendered against the plaintiff. Jeremiah S. B. Routh did not demur, or answer, nor was he defaulted. The plaintiff appeals.
The only question presented for our decision is, did the facts stated in the complaint constitute a cause of action and entitle the plaintiff to the relief prayed for ?
The relief demanded by the appellant is based upon the theory that the instrument heretofore set out was a mortgage of the interest of Jeremiah S. B. Routh in the real and personal property of which his father had died seized and possessed, and that the mortgaged property having been sold, he had the right to pursue the proceeds.
On the other hand, it is maintained that it did not possess the requisites, or have the force and effect of a mortgage, but that if it was a mortgage, it was fraudulent and void as to Canady, and that the proceeds of the sale of the mortgaged property could not be reached, for the reason that Spencer and Crocker had by their superior diligence acquired a prior lien on such proceeds; and it is further insisted that the appellant is estopped to assert any claim to the proceeds of such sale.
The instrument does not purport on its face to be a mortgage, nor is it sealed, acknowledged, or recorded. An ink
The mortgage was executed on the 20th day of February, 1865. The interest of Jeremiah was sold to Canady on the 26th day of September, 1867. The mortgage was never recorded. Canady was a purchaser in good faith, and for a valuable consideration, and without notice, actual or constructive, of the existence of the mortgage.
Sections 11 and 16 of the act concerning real property and the alienation thereof (approved May 6th, 1852) read as follows:
“Sec. 11. No conveyance of any real estate in fee simple, or for life, or of any future estate, and no lease for more than three years from the making thereof, shall be valid and effectual against any person other than the grantor, his heirs and devisees, and persons having notice thereof, unless it is made by a deed recorded within the time and in the manner provided in this act.”
“ Sec. 16. Every conveyance or mortgage of lands, or of any interest therein, and every lease for more than three years, shall be recorded in the recorder’s office of the county where such lands shall be situated; and every such conveyance or lease not so recorded within ninety days from the execution thereof, shall be fraudulent and void as against any subsequent purchaser or mortgagee in good faith and for a valuable consideration.” See 1 G. & H. 259.
We are clearly of the opinion that, the said mortgage not having been recorded, and Canady having been a purchaser in good faith and for a valuable consideration, it is as to him
We are next to inquire whether the appellant has the right to pursue the proceeds of the mortgaged property. When Canady became the purchaser of the' property in good faith and for a valuable consideration, it ceased to be a mortgage which the appellant had the legal right to enforce against the property. It thus became a mere equity. Spencer and Crocker, on the 14th day of January, 1867, obtained their judgment against Jeremiah S. B. Routh. On the 26th day of May, 1867, Spencer and Crocker commenced proceedings supplementary to execution. Canady was made a party. On the 27th day of May, 1868, a judgment was rendered, by which Canady was required to pay to Spencer and Crock-er, or into the clerk’s office, for their use, the amount which he owed to Jeremiah S. B. Routh. In a proceeding supplementary to execution, the lien in favor of the creditor attaches against the debtor of the execution defendant from the timé the process is served on him. Cooke v. Ross, 22 Ind. 157. Spencer and Crocker, by the commencement of such proceedings and the service of process on Canady, acquired an equitable lien on the proceeds of such sale in the hands of Canady, and this equity ripened into a legal right when they obtained a judgment requiring Canady to pay such proceeds to them or for their use.
We are also of the opinion that the appellant is estopped from asserting any claim as against Canady. The appellant was a party to the partition suit, and permitted a judgment to be rendered that Jeremiah was the owner of one-eighth of the real estate of which Joseph Routh had died seized and possessed, without asserting his lien on such interest; and afterward, when a report was made that such real estate was not susceptible of partition, he “stood by” and permitted an order to be made for the sale of such lands, well knowing that the commissioner appointed to make such sale would be required, by the statute, to pay the proceeds of such sale directly to the persons who had been the owners
We do not deem it necessary to cite authorities in support of so plain a proposition, as that, under the facts stated, the appellant is estopped by every principle of justice, equity, and law from asserting a claim against Canady.
It is also claimed by the appellees that the appellant is es-topped by the judgment in the case of Routh v. Spencer, 30 Ind. 348. It is not averred in the complaint that the appellant was a party to that action, and we cannot know, judicially, that the John B. Routh, who was a party to that action, is the same person who was the plaintiff below and the appellant here in this action. If the appellant was such party, there can be no doubt that he would be bound thereby, and that he could not attack such judgment in a collateral proceeding like this.
There are other questions discussed, but we do not consider it necessary to decide them.
We are of the opinion that the court committed no error in sustaining the demurrer to the complaint.
The judgment is affirmed, with costs.
I have not been able to agree with my brethren in the view which they have taken of this case. I think- the instrument executed by Joseph S. B. Routh, set out in the opinion, possesses all the qualities of a valid mortgage. It was not necessary that it should have been executed with a seal, or that it should have been acknowledged before, and certified by, an officer. It was valid against all persons, except “any subsequent purchaser or
I do not think that the proceeding of Spencer and Crocker, supplemental to execution, gave them any right to the money due from Canady, as against the said John B. Routh as administrator. He had a prior and superior lien upon the land and its proceeds, or the purchase-money due from Canady, to the claim of Spencer and Crocker. When a deed or mortgage has not been duly recorded, it is only subsequent purchasers and mortgagees in good faith, and for a valuable consideration, who can get any advantage from that fact. A judgment recovered gives no superior right over an unrecorded deed or mortgage. Doe v. Hurd, 7 Blackf. 510; Sparks v. The State Bank, 7 Blackf. 469. How, then, can the claim of Spencer and Crocker overreach the claim of the administrator by virtue of his mortgage, executed long before their proceeding was commenced ?
I do not see by what rule of law or justice the administrator can be estopped from setting up his claim, because, as one of the heirs, he was a party to the partition suit. It is not pretended that he was a party in his representative character, or that there was a word in the complaint or petition for partition about his claim by virtue of the mortgage. Had he asserted his claim in that suit, it would have been no answer to an application for a partition of the land. But who was injured by his failure to assert his claim there? It is supposed that Canady was injured. Not so. He yet owed more than enough of the purchase-money to pay off the mortgage when he received notice of it. He could not, therefore, have been injured. Where is the ground for any estoppel as to the amount due from Canady when he received notice of the mortgage, supposing that the estoppel exists as to the amount paid by him before he had received such notice?
My opinion is that John B. Routh, the administrator, has a valid claim, by virtue of the mortgage, upon the land or upon its proceeds due from Canady, to the amount due on.
As to the last point mentioned in the opinion of the majority of the court, nothing, I presume, need be said, as I suppose an expression of opinion as to what would be decided upon a different state of facts cannot be regarded as a determination of any point in this case, or as a precedent for any other.