West v. Shryer

| Ind. | May 15, 1868

Ray, J.

Prior to June 1865, Margaret Allen had a mortgage on the land of John White for $246. On the 8th of June, 1865, White was charged with a felony and West became his l’ecognizor for the sum of $500, and took a mortgage to secure himself on the same land. On the 10th of June 1865, White forfeited his recognizance. On the 13th of June, 1865, Shryer and others commenced proceedings in attachment against White. In September of the same year, the Allen mortgage was foreclosed, and at the same term of the court Shryer and others obtained judgment on their attachment and an order to sell the same land which had been mortgaged to Allen and West. A judgment was rendered against West on the. recognizance in October 1865. On the 18th of December, 1865, Moss,as sheriff' sold said land to the defendant Shryer, under the decree of foreclosure on the Allen mortgage, for the sum of $1,600. West immediately paid off the judgment against him, and before the sheriff' had received the money, instituted proceedings to foreclose his mortgage against Shryer, and claimed a precedence in the surplus over the attaching creditors, which was decreed him by the court. Wests mortgage was duly recorded. The sheriff was-notified by West that ho would immediately proceed to foreclose his mortgage, and claim payment thereof out of the proceeds of the sale under the Allen decree, and promised West that he would retain the money for three days, and afterwards, with the intent to defraud plaintiff', paid out the same to the attaching junior creditors, except $350, which he retained.

Moss answered: 1. General denial. 2. That he had sold the land under the Allen decree and appropriated the surplus to the payment of said attaching creditors, giving names and amount.

A demurrer to the second paragraph of the answer was overruled. This was error. The paragraph does not deny any of the allegations of the complaint, nor does it set up any new matter constituting a defense thereto. Upon the complaint, the plaintiff' was entitled to relief. The recording of West’s mortgage was notice to Shryer. The sui’plus in the hands of the sheriff, after payment of the decree of Margaret Allen, on her prior mortgage, should have been applied in satisfaction of plaintiff’s mortgage. The sheriff had no right to pay the money to junior attaching creditors. “ The mortgage was a specific lien on the land, and that being sold under a prior incumbrance, the lien of the mortgage attached upon the surplus monies raised on that sale.” Bartlett v. Gale, 4 Paige 503.

The finding of the court upon the trial does not disclose whether the mortgage to West was recorded or not, and we cannot therefore make any order based upon the finding.

W. Mack, A. G. Cavins, S. C. Davis and M. M. Joab, for appellant.

For the error in overruling the demurrer to the second paragraph of the answer, the judgment' is reversed, with costs.