Hancock v. Fleming

• Decision Date: 19 November 1885
• Citation: 3 N.E. 254,103 Ind. 533
• Parties: Hancock v. Fleming and others.
• Court: Indiana Supreme Court

103 Ind. 533

3 N.E. 254

Hancock

v.Fleming and others.

Supreme Court of Indiana.

Filed November 19, 1885.

Appeal from Grant circuit court.

George W. Harvey and Thompson & Orr, for appellant.

MITCHELL, C. J.

This suit was brought to foreclose a mortgage executed by Fleming and wife to Hancock. All the questions presented for decision arise as well upon the special findings of the court as upon the pleadings. We will therefore only consider the special findings of fact, and determine the correctness of the conclusions of law stated thereon. The facts found are, briefly, that Jane Fleming, being the owner of a tract of land in Grant county, and having executed the mortgage in suit, joined in a warranty deed with her husband on July 16, 1877, by which they conveyed the land to Kelsey & Wood. The deed, otherwise in statutory form, had in it a recital that the conveyance was subject to plaintiff's mortgage, specifying its amount at $225. There was no assumption of payment by the purchasers. At the time the conveyance was made Fleming and wife represented that the incumbrance recited was the only one existing against the land, and the grantees had no actual notice of any other. Prior to the date of plaintiff's mortgage the land was owned by Smith, who, while such owner, suffered a judgment to be taken against him for $341.03 in favor of Forkner, Scott & Elmer. This was a lien prior to the plaintiff's mortgage. After the deed to Kelsey & Wood the land was sold at sheriff's sale to satisfy an execution issued on the judgment above mentioned. Kelsey & Wood, for the purpose of protecting their title, purchased the land at the execution sale; and at the end of one year, no redemption having been made, Kelsey received a sheriff's deed. Wood disclaimed any interest in the land. The conclusions of law stated by the court were in substance that, as there was no agreement by Kelsey & Wood to pay the plaintiff's debt, and the mortgage securing it being subsequent to the Forkner, Scott & Elmer judgment, the title which Kelsey acquired under the sheriff's deed was paramount to the plaintiff's mortgage, and that the plaintiff was therefore not entitled to foreclose it against Kelsey, whose title it was found ought to be quieted.

Whether the conclusions thus stated can he sustained depends upon the force attributable to the recital in the deed to Kelsey & Wood, and the relation into which they, and the land purchased by them, were brought to the plaintiff's mortgage.

It is argued that Kelsey & Wood became the principal debtors, and personally bound for the plaintiff's debt. This view of the case is not maintained. They were not personally liable. The difference between the purchaser's assuming the payment of the mortgage, and simply buying subject to the mortgage, is simply that in the one case he makes himself personally liable for the payment of the debt, and in the other case he does not assume such liability. In both cases he takes the land charged with the payment of the debt, and is not allowed to set up any defense to its validity. Jones, Mortg. § 736; Atherton v. Toney, 43 Ind. 211; Pom. Eq. Jur. par. 1205. The land, nevertheless, remained the primary fund, as between the purchaser and the mortgagee, out of which payment of the debt must be made. The grantees having presumably retained the amount recited out of the purchase price, they were estopped from disputing the validity of the mortgage, or that the amount of the debt was not the sum recited. Moreover, they could do nothing thereafter which would render the mortgage ineffectual as a valid lien upon the land as respects the right in which they held it. That they might have purchased a title paramount, without such title inuring to the benefit of the plaintiff's mortgage, may be conceded. Jones, Mortg. par. 737; Knox v. Easton, 38 Ala. 345. But the title which Kelsey acquired...