160 Ind. 63 | Ind. | 1903
Appellant sued appellees for partition of certain lots in the city of Huntington, alleging that she was the owner in fee simple of an undivided one-third of the property, and appellees the owners of the other two-thirds. Appellees jointly answered by general denial, and David A. Purviance filed a cross-complaint to quiet his title, to which appellant filed an affirmative answer. A demurrer was overruled to the cross-complaint, and sustained to the affirmative answer. Trial by the court. Special finding and conclusions of law favorable to appellees, and judgment that appellant had no interest in the property, and that she take nothing by her suit. Motions for a venire de novo and a new trial were overruled. Error assigned upon all adverse rulings.
In substance the special finding discloses that on May 10, 1892, David A. Purviance, being the owner in fee simple of the lots in controversy, sold them to Rudolph Schaefer, the then husband of appellant, for the agreed price of $750, payable $50 in cash, and the balance in two equal instalments, due May 10, 1893 and 1894, respectively. Schaefer paid the $50 cash, and executed to Purviance his two notes, payable at a bank in this State, for the deferred payments, whereupon, in pursuance of the contract, Purviance executed to Schaefer his title bond, condi
The controlling question in the case is whether appellant has any such right in the lots in controversy as entitles her
As shown by the special finding, appellant’s husband never had anything more than an equitable right in the lots, —the right to demand a deed of conveyance when he had paid for them. And having been sued for his default under the contract, and appeared and filed answer, and hided the jtidgment of the court, it must he conclusively presumed that he availed himself of all the defenses he had, and that the judgment ordering a sale of his equity for payment of appellees’ judgment was right. And the sale having been made and possession surrendered^ to the purchaser by appellant’s husband in his lifetime, it is not perceived how
But it is argued that in the foreclosure proceeding appellant’s husband had a good defense: (1) Because the purchase-money notes being governed by the law merchant, under the contract, at maturity, should have been counted as payment, entitling Schaefer to a conveyance; and (2) the judgment directing the sale of the lots in the first in*, stance, without first exhausting Schaefer’s personal property, or a finding of insolvency, was erroneous as to him, and void as to appellant, and that since appellant takes her rights by virtue of the marital relation, and not as heir, and not having been a party to the foreclosure, she is not bound by the judgment, and is now entitled to assert any right she or her husband might have asserted in the foreclosure suit. Whatever might be said of the second mentioned defense, it seems clear that appellant has no right to either. She had no vested interest in her husband’s equity in the lots. The only basis for a claim had by her was a mere legal status that would confer upon her an equity in the event that her husband died the owner of his equity. Her husband, however, had full and complete power to sell and transfer his claims without her cooperation or consent, and thus forever put an end to it so far as he or his wife or widow was concerned. Appellant was not, therefore, a necessary party to an action brought against her husband affecting his equitable right, and, if admitted as a party, could have made no defense other than in the right of her husband. Sarver v. Clarkson, 156 Ind. 316.
The Sarver case, in its essential elements, is like this: Sarver defaulted in the payment of purchase money, and his vendor brought suit to recover the money and to foreclose his vendor’s lien. Sarver’s wife was not made a party.
In assailing the action of the court in overruling her motion for a venire de novo, appellant insists that the finding is ambiguous and uncertain: (1) Because there is no finding as to the ultimate fact of delivery or non-delivery of the deed by Purviance to Schaefer; (2) because there is no finding of the definite character of the action brought by Purviance against Schaefer; and (3) because there is no finding as to whether Schaefer was and continued solvent or insolvent, at the commencement of the foreclosure. With respect to the delivery of the deed the finding is that Purviance, with his complaint to foreclose, filed in the clerk’s office the deed he had previously prepared and tendered to Schaefer, for the use of the latter upon his payment of the purchase-money notes, and soon after the filing, Schaefer, without the consent of Purviance, and without paying anything on the notes, took the deed from the clerk’s office and lodged it for record in the recorder’s office; and there was no other or further delivery of said deed to Schaefer than as above stated. These facts, whether they are probative or ultimate, lead to a single, definite, and certain conclusion, namely, that there was no delivery of the
We are unable to say that the verdict is not sustained by sufficient evidence.
We find no error in the record. Judgment affirmed.