Adair v. Mergentheim
| Decision Date | 10 April 1888 |
| Docket Number | 13,142 |
| Citation | 16 N.E. 603,114 Ind. 303 |
| Parties | Adair et al. v. Mergentheim |
| Court | Indiana Supreme Court |
From the Howard Circuit Court.
Judgment is reversed, with costs.
J. C Blacklidge, W. E. Blacklidge and B. C. H. Moon, for appellants.
C. E Hendry and A. C. Bennett, for appellee.
This was a suit by Mergentheim to enforce a tax lien upon certain lots in the city of Kokomo. There was a decree in favor of the plaintiff below, a jury having returned the facts to the court in a special verdict.
From the facts found it appears that the title to the lots in question was in Josiah M. Leeds, and that in August, 1874, Josiah M. and Louisa W. Leeds, his wife, joined in a conveyance of the lots, by way of mortgage, to the defendants Adair and Butler. Subsequently the taxes became delinquent, and in 1877 the lots were sold at a tax sale for delinquent city taxes to Alfred B. Walker, who received two certificates of purchase from the proper officer.
In February, 1879, Walker assigned the certificates to Louisa W. Leeds, but it is found that the city clerk never kept a record of assignments of certificates of tax sales in his office, and that the assignments to Mrs. Leeds had, therefore, never been recorded in full. On the second day of March, 1880, Adair and Butler took a decree of foreclosure upon their mortgage against Leeds and wife in the Howard Circuit Court. Walker was made a party to answer as to his interest. The decree was taken upon a default, due service of process having been made upon all the defendants. The mortgagees acquired title under this decree in May, 1881. Afterwards, in February, 1885, Mrs. Leeds assigned the tax certificates hereinbefore mentioned to the plaintiff, Mergentheim, who received a tax deed from the city clerk on the same day.
There was no mention of the tax lien in the complaint in the foreclosure proceedings, and the only averment made therein affecting Mrs. Leeds was that she had joined with her husband in the execution of the mortgage sought to be foreclosed, and the only relief prayed against her was that the mortgage might be foreclosed.
The question presented by the facts found is whether the tax lien set up in the present case, and sought to be enforced, by Mergentheim, the assignee of Mrs. Leeds, who was the holder and owner thereof when the decree of foreclosure was taken against her, is barred by that decree.
The argument in support of the ruling below is to the effect that, because the only issue tendered to Mrs. Leeds in the complaint to foreclose the mortgage in which she joined her husband related to her inchoate interest as wife, the decree did not extend to or affect any interest beyond that brought in question by the complaint.
It is a generally accepted rule, that a judgment by default is conclusive only as to such matters or issuable facts as are properly averred in the complaint. Barton v. Anderson, 104 Ind. 578, 4 N.E. 420; McFadden v. Ross, 108 Ind. 512, 8 N.E. 161. And the general rule, likewise, is that judgments are only presumptively conclusive against parties in the character in which they sue or are sued. McBurnie v. Seaton, 111 Ind. 56, 12 N.E. 101, and cases cited.
In the application of these general rules regard must be had, however, to the nature and purpose of the proceeding in which the judgment, the effect of which is in question, was rendered.
As applicable to foreclosure and other suits of that nature, where one is made a defendant to answer concerning his supposed or possible interest in the property, the rule seems to be settled by the decisions of this court, that a default is construed as an admission that at the time he failed to appear he had no interest in the property in question, and hence as conclusive of any prior claim of interest or title adverse to the plaintiff. Barton v. Anderson, supra, and cases cited.
Whatever diversity of opinion there may be elsewhere, it has long been settled by the decisions in this State that conflicting claims and questions of priority may be determined in foreclosure suits whenever proper issues to that end are tendered. Masters v. Templeton, 92 Ind. 447, and cases cited; Woodworth v. Zimmerman, 92 Ind. 349.
As to what averments are essential in a complaint in order to tender proper issues, so that a decree of foreclosure taken thereon by default will operate as a bar to claims prior to that of the mortgagee, we need not inquire in the present case. While prior and conflicting claims may, under proper averments, be settled, the primary purpose of a foreclosure suit is to obtain a decree foreclosing out the estate of the mortgagor as he held it at the time he executed the mortgage in suit. Hefner v. Northwestern Life Ins. Co., 123 U.S. 747, 31 L.Ed. 309, 8 S.Ct. 337; McComb v. Spangler, 71 Cal. 418, 12 P. 347.
Those who have acquired liens upon the mortgaged premises subsequent in date to the mortgage, are bound to take notice, when they are made parties to a foreclosure...
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