158 Ind. 314 | Ind. | 1902
The fifth paragraph of the complaint, docketed as a separate action, states in substance that William Turpie and James H. Turpie, were the owners of a tract of land situated in White county, Indiana, containing 440 acres, upon which one Braxton held a mortgage; that a
'Pending the action, one of the plaintiffs, James H. Turpie, died, and his heirs at law were substituted as parties plaintiff.
The defendant answered in denial, and also set up the defense of the statute of limitations of six and ten years. Demurrers to the special answers were overruled, and the plaintiffs filed their reply, the first paragraph of which was a general denial. The defendant below filed a cross-complaint, alleging his ownership of the land, and that the plaintiffs wrongfully asserted an interest in or title to the same. He asked that his title be quieted. Answer in denial of cross-complaint. A special finding of facts was made, with conclusions of law thereon, and, over a motion for a new trial, judgment was rendered for the defendant and cross-complainant, Lowe. The plaintiffs below appeal, and assign for error the overruling of the demurrers to the answers setting up the statute of limitations and the overruling of the motion for a new trial.
The decision of the court upon the demurrers to the answers alleging that the cause of action did not accrue within six years or ten years before the commencement of the suit was plainly erroneous. The action was one of equity jurisdiction, and its object was the redemption of the lands held by the defendant under a sheriff’s deed absolute upon its face, but alleged to be in fact a mortgage or security only for the repayment of a debt. None of the specifications of §293 Burns 1901 applies. Nor was this an action for the recovery of real property sold on execution, brought by the
But, while the ruling on these demurrers was erroneous, it does not follow that "the judgment must be reversed. The plaintiffs below did not stand upon this decision, but filed replies to the answers setting up the bar of the statute and went to trial. The special finding and the proof show that they failed to sustain the material allegations of their complaint, and that the judgment was properly rendered in favor of the defendant. It was averred in the complaint that Lowe took an assignment of the certificate with the agreement that he would hold the same as security only for the amount paid by him to Braxton, and for the delinquent taxes, together with the bonus of $100, with eight per cent, upon the whole amount, and that he would not procure a deed upon the certificate. The court found that the agreement between the Turpies and Lowe was that the former should redeem the lands within one year from December 7, 1885 ; that the Turpies never did redeem; and that no claim of such right was made by them for more than five years from the time of the assignment of the certificate of purchase. The assignment of certificates of purchase of real estate at sheriff’s sales is expressly authorized by statute. §778 Burns 1901; Splahn v. Gillespie, 48 Ind. 397; Maddux v. Watkins, 88 Ind. 74; Conger v. Babcock, 87 Ind. 497.
It is well settled that the statutory period within which lands sold on execution may be redeemed may be extended by contract without otherwise affecting or impairing the rights of the holder of the certificate of purchase. The leading case upon this subject is Southard v. Pope, 9 B. Mon. 261, in which it is said: “The extension of the time of re
The general rule is thus stated in Rorer on Judicial Sales (2nd ed.), §1159: “But a mere agreement to extend the
While no decision upon the precise question presented here has been made by this court, it has repeatedly been held that delay of the purchaser in procuring a deed does not affect his rights under his certificate. Jones v. Kokomo Building Assn., 77 Ind. 340; Maddux v. Watkins, 88 Ind. 74, 79. So, too, it has been declared that a valid assignment of the certificate may be made by the purchaser as well after as before the expiration of the year allowed for redemption. Conger v. Babcock, 87 Ind. 497; Maddux v. Watkins, 88 Ind. 74, 79. And the holder of the certificate may permit the execution defendant to redeem the land after the statutory period for redemption has expired. Taggart v. McKinsey, 85 Ind. 392. The cases in this State seem to be entirely in-harmony with the rule laid down in Southard v. Pope, 9 B. Mon. 261.
If the purchaser receives any part of the redemption money, under an agreement to extend the time of redemption, thereby permitting a partial redemption, he waives his right to* a deed, and the certificate becomes merely the evidence of a lien upon the land as security for the payment of the residue of the redemption money. Hughart v. Lenburg, 45 Ind. 498; Spath v. Hankins, 55 Ind. 155; Felton v. Smith, 84 Ind. 485; Southard v. Pope, 9 B. Mon. 261; Ott v. Rape, 24 Wis. 336, 1 Am. Rep. 186.
But where there is merely an agreement to extend the time of redemption beyond the year, and nothing is paid on account of such redemption, the extension does not convert the claim of the purchaser into a security which must be enforced by a new action. The relation of the purchaser to the land remains that of a successful bidder at the judicial sale, with all of the rights secured to such bidder by the
If such agreements are valid as against the purchaser, they must also be sustained as against the defendant in execution. The contract binds the purchaser to a waiver of his right to demand a deed during the time of the extension of the right to redeem. It requires the owner of the land to redeem within that time. If the purchaser is precluded from obtaining a deed during the period of extension, the defendant can assert no right to redeem after the expiration of the time agreed upon. The rights of the parties, respectively, arise out of the contract. The agreement is not to be treated as a legal trap for the purchaser, which holds him fast, while it not only releases the landowner from the particular obligation to redeem within a fixed time assumed by him, but actually excuses him from redeeming the land at all, and compels the purchaser to begin a new suit for the enforcement of his claim.
As the right to redeem land from a sale upon execution is
If the time for redemption is not fixed and certain, the right must be asserted within a reasonable time, or it will be considered waived. The declaration of the rule in such cases by Lord Chancellor Camden in Smith v. Clay, Ambler 645, 3 Brown’s Ch. (Perk, ed.), 640, note, has been generally accepted as a correct statement of the effect of laches: “A court of equity, * * * has always refused its aid to stale demands, where the party slept upon his right, and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to. suits-in this court.” See, also, Williams v. Rhodes, 81 Ill. 571; Fletcher v. McGill, 110 Ind. 395, 406.
An agreement for an extension of the time of redemption, although not in writing, nor supported by any consideration excepting the promise of the redemptioner to pay the amount to become due, with interest, when acted upon by the parties, is not within the statute of frauds. It is said in Butt v. Butt, 91 Ind. 305, 307, that: “A statute which is intended to prevent fraud should not be permitted to be used for its promotion. Arnold v. Cord, 16 Ind. 177; Teague v. Fowler, 56 Ind. 569; Butcher v. Stultz, 60 Ind. 170. Contracts within the statute of frauds are not void, but merely voidable. When fully consummated, they become valid. They become binding when so far executed
Again, in Schroeder v. Young, 161 U. S. 334, 344, 16 Sup. Ct. 512, 40 L. Ed. 721, the Supreme Court of the United States say, by Brown, J.: “Defendant relies mainly upon the fact that the statutory period of redemption was allowed to expire before this bill was filed, but the court below found in this connection that before the time had expired to redeem the property, the plaintiff was told by the defendant Stephens that he would not be pushed, that the statutory time to redeem would not be insisted upon, and that the plaintiff believed and relied upon such assurance. Under such'circumstances the courts have held with great unanimity that the purchaser is estopped to insist upon the statutory period, notwithstanding the assurances were not in writing and were made without consideration, upon the ground that the debtor was lulled into a false security. Guinn v. Locke, 1 Head 110; Combs v. Little, 4 N. J. Eq. 310, 40 Am. Dec. 207; Griffin v. Coffey, 9 B. Mon. 452; Martin v. Martin, 16 B. Mon. 8 ; Butt v. Butt, 91 Ind. 305; Turner v. King, 2 Ired. Eq. 132, 38 Am. Dec. 679; Lucas v. Nichols, 66 Ill. 41; McMackin v. Schenck, 98 Ind. 264. In Southard v. Pope, 9 B. Mon. 261, 264, it is said that 'a refusal by the purchaser to accept the money and permit the redemption to be made within the time agreed would be a fraud upon the defendant in execution, and authorize an application by him to a court of equity for relief.’ ” To the same effect are: Rector v. Shirk, 92 Ind. 31; Cox v. Ratcliffe, 105 Ind. 374.
In the case before us the evidence of the Turpies as to the terms of the agreement between them and Lowe is indefinite and unsatisfactory. James H. Turpie stated that he and his brother talked about Lowe “buying in this cer
It is objected by the appellants that the court erred in permitting Lowe to testify concerning the agreement between him and the Turpies, one of the Turpies being dead. The testimony of the deceased Turpie, given upon a former occasion, was introduced by the appellants, and the use of this testimony made Lowe a competent witness in regard to the, matters stated by the decedent in his testimony, as fully
We find no error in the record. The judgment is affirmed.
Baker, J., concurs in result only.