69 Ind. 379 | Ind. | 1879
This was a suit by the appellees, against the appellants, in a complaint of a single paragraph, wherein the appellees alleged, in substance, that on the 1st day of September, 1871, the appellant "William A. Teal executed to one William C. Burdett a certain ■mortgage, a copy of which was filed with and made part of said complaint, thereby conveying to said Burdett the real estate in Hancock county, Indiana, de
The appellees further said, that on the 25th day of January, 1876, a copy of said judgment and decree in said suit was issued to the sheriff of Hancock county, who, on said decree, advertised said real estate for sale on the 25th day of February, 1876, and on said day the said real estate was offered for sale and sold to the appellee, Theresa J. Hinchman, for the sum of twenty-five dollars, which the appellees had paid, as appeared from the
The appellees further alleged that, long after the execution and record of said mortgage, one James Simpson, claiming to be the owner of that part of the real estate described in the appellees’ mortgage, -since known as “ Teal’s Reserve,” mortgaged the same to the State of Indiana, for the use of its common school fund, to secure the payment of four hundred dollars, which mortgage was unpaid and unsatisfied, and was a junior lien on said real estate to the appellees’ lien under their mortgage, “ and the State'is also made defendant, to limit the equity of redemption.” Wherefore the appellees asked that the court decree the said judgment, theretofore rendered on said mortgage against the appellant William A. Teal, to be a prior lien on said real estate to any and all the liens and interests of the other appellants, and that the appellants should be required to litigate their rights and interests in this action; that they be limited by -these proceedings, in the equity of redemption of said real estate, to the statutory period, and bound by the decree herein; and that said real estate be declared subject to said balance of the appellees’ judgment, and be sold to satisfy said judgment, and that the original judgment and decree be merged in these proceedings, and for all proper relief.
To this complaint the appellants William A. Teal, Alfred E. Teal and the State of Indiana, each demurred separately for divers grounds of objection, and all the other appellants jointly demurred for the want of sufficient facts; which demurrers were each and all overruled by the court, and to these rulings the appellants severally excepted. All the appellants jointly answered the complaint by a general denial thereof.
Afterward, when the cause was called for trial, each and all of the appellants failed to appear, and, though “ three times loudly called,” wholly made default. The cause was
The following alleged errors have been assigned by the appellants jointly in this court:
1. That the circuit court erred in overruling each ot the separate demurrers to the appellees’ complaint: and,
2. That the court erred in its judgment and order of sale, made and rendered in this cause, the same not being authorized nor warranted by the allegations of the complaint.
It is claimed by the appellants’ counsel, as we understand their argument, that the appellees’ complaint was insufficient, because it was not alleged therein that the appellants, other than said William A. Teal, had purchased their respective parts or portions of the mortgaged premises subsequent to the foreclosure of the mortgage against said Teal only, and the judgment over against him, mentioned in said complaint. We fail to see the force of this objection to the complaint. Indeed, it seems to us that if the appellants, other than said Teal, had in fact purchased their respective parts of said mortgaged property after the rendition of such judgment of foreclosure and of such judgment over, there would have been no necessity whatever for the present suit, and it would hardly have been brought. It was alleged by the appellees, in their complaint in this case, that all the appellants, except said William A. Teal, had acquired their respective interests m the mortgaged premises after the execution and record of said mortgage, and owned and held such interests at the time of the foreclosure of the mortgage against said Teal as sole defendant. From some cause, not clearly apparent in the record of the action, the appellants, other than said Teal, were not made parties to the original foreclosure suit; and therefore neither they nor their respective interests in
It is insisted, however, that, by reason of the sale by the sheriff of the mortgaged property, under the said judgment of foreclosure, “ the mortgage and the decree thereon became fundus officio, and the appellees, if the mortgaged premises did not sell for enough to satisfy said judgment in full, would be compelled to look to the lien of the judgment over for the residue thereof.” 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 sheriff’s 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 liadi thereby become divested and entirely freed from the liem of the mortgage and of the judgment of foreclosure. But it was alleged by the appellees, in their complaint, andJ conceded to be true by the appellants’ demurrers, 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-,
The appellants’ counsel claim in argument that the complaint was bad on the demurrers thereto, because it did not not show that the appellee Joseph V. Iiinchman had any interest in the subject-matter of the action. We think, however, that this argument was founded upon a misapprehension of the facts stated in the complaint; for the appellees alleged therein, “ that they derived their title to said note by assignment from Zerelda Swope, who received it by assignment from Burdett, which assignments were each by endorsement, by writing their names on the back of said note.”
The brief of the appellants’ attorneys, in this court, closes with this statement: “ That the State of Indiana, on the relation of the common school fund, is a necessary and proper party defendant to a determination of said cause.” Whether this position is well taken or not, it is certain that the complaint in this case is not open to any objection on this ground, for the appellees made the State of Indiana, on the relation of its common school fund, a party defendant to their action, and such defendant appeared therein by counsel and responded to appellees’ complaint.
No notice whatever has been taken in argument by the appellants’ attorneys of the second alleged error. Under the settled'j)ractice of this court, this error must therefore be regarded as virtually waived.
We find no error in the record.
The judgment is affirmed, at the appellants’ costs.