1 Ind. L. Rep. 538 | Ind. | 1881
— This was a suit by the appellee against the appellants to enjoin the sale by the appellant Smith, as the sheriff of Wayne county, of certain real estate, particularly described, in said county. After the cause had been put at issue, it was submitted to the court for trial, upon an agreed • statement of facts ; upon which a finding was made for the ■appellee, and judgment was rendered thereon, perpetually •enjoining the appellants, and each of them, in accordance with the prayer of the appellee’s complaint. The appellants’ ■motion for a new trial having been overruled, and their exception saved to this ruling, they appealed from the judgment rendered to this court, and, by proper assignments of errors here, have called in question the several decisions of the trial court adverse to them, upon which they ask for the reversal of the judgment.
It would seem, from the record of this cause, that, after the issues had been joined therein, the parties had submitted ‘■‘the matter of controversy between them’ ’ to the court below, upon an. agreed statement of facts, made out and signed by 'them ; and ' that, by an affidavit then filed, it was shown to the-court “that the controversy is real, and the proceedings
As necessary to the proper presentation of the question for our decision in this case, and to a clear understanding of the point decided, we will first give a summary of the “agreed statement of facts,” as follows :
It was agreed, that on the 20th day of January, 1874, Joseph Come}' was the owner in fee simple of the real estate described in the complaint, and that, on that day, the said Joseph and Nancy Comer, his wife, executed a mortgage conveying the said real estate to the appellant Benjamin Harris, to secure the payment of a promissory note for $563, dated January 19th, 1874, executed by said Joseph Comer and payable one year after date to said Benjamin Harris, which said mortgage was duly recorded in the recorder’s office of said Wayne county, on the 7th day of February, 1874 ; that on March 17th, 1875, in the Wayne Circuit Court, Lydia and Joseph B. Bennett recovered a judgment against the said Joseph Comer and another for the, sum of $667.35, which judgment became a lien on said real estate, from the date of its rendition ; that, by virtue of an execution issued on said judgment, the sheriff of Wayne county levied upon, advertised and sold, according to law, the said real estate to the said Lydia Bennett for the sum of one dollar, that being the highest and best bid made therefor, and the said sum of one dollar having been paid, the said sheriff executed to said.
It wa» further agreed that, on March 18th, 1877, the appellant Benjamin Harris commenced an action in the Wayne Superior Court, against the said Joseph and Nancy Comer, and the appellee, Moore, on his said note and mortgage, in which action the appellee, Moore, was made a defendant, for the reason that he then claimed to own said real estate in fee simple, by virtue of said sheriff’s deed thereof U) him, and it wa-; alleged in the complaint therein that said Moore held said sheriff’s deed for said real estate; that such proceedings wore had in said action as that, on the 19th day of June, 1877, in said Wayne Superior Court, the appellant Harris recovered a personal judgment against the said Joseph Comer, on his said note, for the sum of $814.35,. and a judgment against the said Joseph and Nancy Comer, and the appellee, Moore, for the foreclosure of said mortgage and the sale of the mortgaged real estate to satisfy said judgment of $814.35; that, on the 9th day of July, 1877, an order of sale, duty certified, was issued on said judgment, to the sheriff of Wayne county, and by virtue thereof, after having advertised the time and place of sale, according to law, the said sheriff, on the 4th day of August, 1877, offered and sold the said real estate to the appellant Harris for the sum of one dollar, that being the highest and best bid made therefor; that, the said sum of one dollar having
It was further agreed that the said real estate then was, and for two years past had been, worth the sum of $500, and no more ; and that the only right, title or interest which the ap7 pellee, Clarkson T. Moore, then or ever had in and to said real estate, was that derived by him under and by virtue of the said sheriff’s sale thereof to said Lydia Bennett, and of her assignment to him of her certificate of sale, and of the sheriff’s deed to him, as the assignee and holder of such certificate.
Upon the foregoing agreed facts, the appellee claimed, and the court, in effect, decided, that the appellant Benjamin liar-. ris, after the redemption of the real estate from the first sale thereof under his judgment, had no right to have such real •estate resold to satisfy the unpaid balance of his judgment ; and that the appellee was the owner in fee, and entitled to
We are of the opinion that the court clearly erred in its finding-, decision and judgment on the agreed statement of facts in this case. It will be seen from the agreed facts . that the mortgage to the appellant Harris, on the real estate described in the complaint was dated January 20th, 1874, and was duly recorded in the proper recorder’s office; while the judgment against Joseph Comer, under which the appellee, Moore, acquired “the only right, title or interest” Avhich he “ever had in and to said real estate,” was rendered and became a lien on said real estate on March 17th, 1875, or more than one year after the lien of ‘said mortgage attached thereon. When, thei’efore, an execution was issued on said judgment against the said Joseph Comer, and in favor of the said Lydia and Joseph B. Bennett, and the sheriff of Wayne county, by virtue of said •execution, levied upon and sold the said real estate, and, upon the non-redemption thereof, subsequently conveyed the same to the appellee, Moore, as the assignee of the purchaser at such sale, it is certain, we think, that the appellee took such real estate subject to the prior mortgage thereon in favor of the appellant Harris. In other words, under the said sheriff’s deed to him, the appellee, Moore, acquired only the title, interest and estate Avhich the said Joseph Comer had in said real estate at the time of the rendition of the Bennetts’ judgment, and subject, of course, to the prior lien thereon of the mortgage owned and held by the appellant Benjamin Harris.
In the subsequent suit for the foreclosure of said mortgage, the appellee, Moore, as the owner and holder of the mortgaged premises, under his said sheriff’s deed thereof,
It is certain, we think, that the appellee, Moore, did not and could not, under and by force of his redemption of said real estate, from the sheriff’s sale thereof to the appellant Harris, acquire any different or better title thereto than the one previously acquired and held by said appellee, under his deed from the sheriff of said county. Nor did, nor could, the appellee’s redemption of said real estate from the sale thereof to the appellant Harris operate under the law to free such real estate from, or to divest it of, the lien of the Harris mortgage thereon, as a security for the unpaid balance of the mortgage debt. In the recent case of Teal v. Hinchman, 69 Ind. 379, the precise question presented in this case was carefully considered and decided. In the case cited, it was insisted, as in the case now before us, that, by reason of the sale by the sheriff, the' mortgaged property
“If the mortgaged property had not been redeemed from the sheriff’s sale thereof, under said judgment of foreclosure, in the manner and within the time allowed by the statute, and if, accordingly, by reason of such non-redemption, such sheriffs sale had been fully confirmed and consummated according to law, by the execution and delivery to the purchaser of a proper sheriff’s deed of such mortgaged property, then it would seem to us that the mortgaged premises had thereby become divested and entirely freed from the lien of the mortgage and of the judgment of foreclosure. But it was alleged by the appellees, in their complaint, and conceded to be true by the appellants’ demurrers,” (in the case at bar it was an agreed fact,) “that the mortgaged premises were duly redeemed, according to law, from the said sheriff’s sale thereof, before the commencement of this suit. The effect of such redemption was to vacate and set aside the said sheriff’s sale of the mortgaged property, and thereafter both the mortgage and the judgment of foreclosure stood precisely as they would have done, so far as the-property was concerned, if no sale thereof by the sheriff had ever been made.”
We can see no good reason for changing or modifying the views thus expressed in the case cited, and they seem to us to be decisive of the question presented by the agreed statement of facts in this case. In such a case, the mortgaged propert}^ will remain a security for the unpaid balance of the mortgage debt and costs, and the judgment creditor may enforce the collection thereof by suing out an alias order of sale on his judgment of foreclosure, and by causing a resale
Upon the case made by the agreed statement of facts, we ■ are of the opinion that the finding, decision and judgment ■of the trial court, in favor of the .appellee and against the ■appellants, were unauthorized by law and erroneous. No ■ case is made by the record which entitles the appellee to an injunction, or to any other relief, against the appellants, or ■ either of them.
The judgment is reversed, at the appellee’s costs,-and the ■cause is remanded with instructions to find for the appellants, the defendants below, upon the agreed statement of facts, and to render judgment accordingly.