Ristine v. Clements
| Decision Date | 02 April 1903 |
| Docket Number | 4,602 |
| Citation | 66 N.E. 924,31 Ind.App. 338 |
| Parties | RISTINE v. CLEMENTS ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 24, 1903.
From Montgomery Circuit Court; Jere West, Judge.
Action by Dora Clements against Hosea Ristine and others. From a judgment for plaintiff, defendant Ristine appeals, and appellee Clements assigns cross-errors.
Reversed on cross-errors.
Benjamin Crane and A. B. Anderson, for appellant.
M. M Bachelder, C. H. Jones and J. B. Murphy, for appellees.
This cause was transferred from the Supreme Court under the act of March 12, 1901.
Suit by appellee to recover one-third of the proceeds of the sale of certain land owned by her husband, and to enjoin the sheriff from paying such money to certain judgment creditors of the husband.
The court found the facts as follows: Dora and Robert Clements are husband and wife, Robert Clements being a householder having property of all descriptions worth less than $ 600. In 1888 he became the owner of certain real estate particularly described, and borrowed from the Ladoga Building Association $ 1,400, and to secure the same he and his wife executed mortgages on the land. In 1895 the building association filed its complaint against the mortgagors and George Green William Hostetter, John Maloney, William J. Davis, and Thomas Rankin, and obtained judgment against Clements for $ 541.11 and a foreclosure of the mortgage against all the defendants. It was averred in that complaint: That the liens of all the defendants other than Clements were inferior to the building association mortgage, and it was so adjudged in the decree; that the land was ordered sold by the sheriff, and he was directed to apply the proceeds from the sale (1) to the payment of costs, (2) to the payment of the amount due the building association, and (3) to the payment of the amount due Davis and Rankin on their judgments, the overplus, if any, to be paid to the clerk of the court for the use of the parties lawfully authorized to receive the same; that the sheriff, on July 25, 1896, sold the real estate to Hosea H. Ristine for the sum of $ 1,200, which was its reasonable value, and which he received from Ristine, and after paying the building association the amount due on its mortgage and all costs there yet remained in his hands $ 562.16, which amount the sheriff has never accounted for, but retained the same up to the time of his death in 1901; that John L. Davis is now the executor of his estate, and on October 16, 1901, paid the money to the clerk of the court, to be paid out as the court might order; that no one redeemed from this sale, and on the 29th day of July, 1897, Ristine received a deed for the same, and has ever since been the owner; that in the foreclosure proceedings no averment is made in the complaint against Dora Clements, except that she executed the mortgage with her husband; that no averment is made against Hostetter or Green, except that they have mortgages upon the real estate which are inferior to the plaintiff's, and that no averment is made against Maloney, Davis, or Rankin, except that they have judgments against Robert Clements, and that they are liens inferior to plaintiff's; that the prayer of the plaintiff was for judgment against Robert Clements in a named sum, and a foreclosure of its mortgage against all the defendants, and for the sale of the land free from the claims of the defendants; that all of the defendants were regularly served with summons; that Robert and Dora Clements, Green, and Hostetter each made default; that Rankin, Davis, and Maloney filed answers, setting up their several judgments, and asked that their interests be protected, and if the mortgaged premises should sell for more than enough to pay the mortgages, that the excess be paid to them; that on the day of, and just prior to the time of, the sale of the land Robert Clements presented to the sheriff his schedule, claiming his exemption as provided by law, and demanding that the sheriff set over to him as exempt all the money that might remain arising from the sale after the payment of the building association mortgage, but that the sheriff refused to pay the same or any part thereof, and refused to accept his schedule; that Dora Clements at the same time demanded of the sheriff that he turn over to her the one-third part arising from such sale, if that much remained after the payment of the building association mortgage, and that if that amount did not remain, that the part that did remain be turned over to her as the wife of Robert Clements, on account of her interest as such wife in the lands, which the sheriff refused to do, and on the day of the sale she brought this suit to obtain one-third of the proceeds of such sale, and at the time of filing her suit she obtained a restraining order enjoining the payment of the money as in the decree ordered, and the executor of the sheriff still holds the same to abide the result of this suit; that in May, 1891, Hartman and Snyder obtained a judgment against Clements; that they were not made parties to the foreclosure suit, and that Ristine paid to them the amount of their judgment, and such judgment was thereupon satisfied; that in April, 1895, Davis and Rankin obtained a judgment against Robert Clements upon a contract for $ 921, which has never been paid, but which is still in force and effect. In 1893 Robert Clements was engaged in the sale of intoxicating liquor, and was indicted and convicted for violations of the law and fined, amounting in fines and costs to $ 240.20, and was committed to jail until such judgments were paid or replevied; that these judgments were replevied by one Isaac Clements, and that Robert Clements has never paid any part of the same, except as hereinafter set forth. In June, 1895, Clements executed his note to Hostetter for $ 160, and to secure the same Clements and wife executed a mortgage on the land, and no part of the note and mortgage has ever been paid or satisfied; that this note and mortgage were executed under the following conditions: In June, 1895, Robert Clements was engaged in the sale of intoxicating liquors in the town of Ladoga, and had, from the 1st day of March, 1895, been selling and carrying on such business without a license from the town, and the town board had previous thereto often demanded of him that he take out a license and pay the fee therefor, which they claimed to be $ 150; that previous to June, 1895, the matter had been considered by the town board, and they were instructed by their attorney that it was doubtful whether they could collect any license fee, and doubtful if they could convict Clements for the violation of any ordinance; that the attorney was thereupon instructed to collect such fee or in some way secure the same; that the attorney informed Clements and his wife that he would prosecute Clements for a violation of the ordinance if the fee was not paid, and, that if they could not raise the money, that Hostetter, the town clerk, would furnish the money and pay for the license, and the same would be issued to Clements and dated back to the 1st day of March, 1895, if Clements would execute his note to Hostetter for $ 160, which would be $ 150 furnished by Hostetter for the license and $ 10 for the attorney's services.
the court further found: That the town of Ladoga did not intend to, and did not believe that it could, collect the license fee by law, or prosecute Clements for a violation of the ordinance, and that Hostetter had never at any time agreed to furnish the $ 150, or any part thereof; that the representations made by the town attorney were not believed by him to be true, at the time they were made, and were made for the purpose of inducing Robert Clements to execute his note, and to induce Robert and Dora Clements to execute the mortgage; that the Clements believed these statements to be true, and on account of the same executed the note and mortgage to Hostetter; that the town attorney, after he procured the note and mortgage, reported to the town board what he had done, and they ratified his actions, and authorized the town clerk, the payee named in the note and mortgage, to issue to Clements a license for one year, dating the same back to the 1st day of March, 1895, and Hostetter, as such clerk, was instructed to accept the note and mortgage in payment of the license fee, which he did as the property of the town of Ladoga; that Hostetter did not furnish any money upon the note and mortgage, and never paid any consideration for the same, and that the only consideration which was given for the note and mortgage was the license issued by the town to Clements and the services performed by the town attorney; that it was agreed that Hostetter should take the note and mortgage, and hold them for the use and benefit of the town, but the town was instructed by its attorney that if Clements should learn that Hostetter had not advanced the $ 150 in payment of the license fee, that he could, and would probably, defeat the note and mortgage, and that it was best that no record be made of their proceedings in the matter, and no record ever was made; that when this note and mortgage were executed there was in force a town ordinance concerning liquor licenses from the town board, and requiring the payment of $ 100 as a license fee; that Clements, on the 1st day of March, 1895, obtained a county license, and he continued to sell within the town up to the 1st day of March, 1896, and for sometime thereafter; that in October, 1895, having failed to pay the judgments against...
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