158 Ind. 595 | Ind. | 1902
Joab Woodruff, being the owner of real estate, mortgaged the same to James Woodruff. After the execution of the mortgage Joab sold and conveyed the mort
Three questions are presented for decision: (1) Did the redemption by Oglebay from the Lutz sale expose the property to resale for an unpaid balance of the decree? (2) Did the statute, under the facts shown, after payment by Todd, keep alive the judgment and decree for his use? (3) Are the facts pleaded in the cross-complaint germane to the subject-matter of the action ?
I. Section 782 Bums 1901, provides that whenever any real estate or interest therein sold as aforesaid shall be redeemed by the owner or person claiming under him, the sale thereof by the sheriff shall be wholly vacated as to the real estate so redeemed, and such real estate subjected to sale on execution as if such sale had not been made. This section
Oglebay became the owner by successive conveyances by deed from Woodruff, the mortgagor, and as such owner exercised the right to redeem from the foreclosure sale, and his redemption therefor reestablished the lien and operation of the judgment and decree for any balance that remained unpaid.
II. Section 1228 Burns 1901, provides that when any person, being surety in any undertaking whatever, has been or shall be compelled to pay any judgment or part thereof, or make any payment which is applied upon such judgment by reason of such suretyship, the judgment shall not be discharged by such payment,-but shall remain in full force for the use of the person making- such payment, and, after the plaintiff is paid, so much of the judgment as remains unsatisfied may be prosecuted to execution for his use.
It is well established in this State that a grantee who agrees and assumes to pay off an encumbrance on the land, as a part of the purchase price, thereby becomes to the lien creditor primarily liable for the debt; and, while the grantor will remain equally bound by his obligation, yet, as between him and his grantee, he becomes surety, and his grantee principal debtor. As between the parties to the. deed, the encumbrance becomes the debt of the grantee. Stanton v. Kenrick, 135 Ind. 382; Ellis v. Johnson, 96 Ind. 377; Rodenbarger v. Bramblett, 78 Ind. 213; Campbell v. Patterson, 58 Ind. 66; Josselyn v. Edwards, 57 Ind. 212.
III. A person who has paid a judgment for which he was surety to another before the question of his suretyship has been determined may have that relation established by applying, in a proper action, to the court that rendered the original judgment, and become thus entitled to an order for execution for his use. Zimmerman v. Gaumer, supra, and cases cited.
A cross-complaint is not recognized by our practice act, but nevertheless it is the manifest spirit of the code to discourage and abridge lawsuits by granting such liberal procedure as will enable parties to an action to put in issue and litigate all matters of dispute relating to the subject-matter in controversy. This view of the code has uniformly been held by the decisions of this court and finds support in §577 Burns 1901, which provides that the court may “when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves.” It may, therefore, he said to he the settled practice in this State, when affirmative relief is due against parties to the suit as to matters germane to the subject-matter of the main action, to permit cross-actions against the plaintiff or among co-defendants. In this case the complaint of appellee, as the same went to final judgment, alleged the payment and discharge of the Lutz judgment and decree, and sought to have the discharge established, and the plaintiff’s title quieted
Judgment reversed, with instructions to overrule the demurrers to appellants’ first and second paragraphs of amended answer, and to overrule appellees’ motion to strike out appellants’ cross-complaint.