Alden v. White

• Citation: 32 Ind.App. 671,66 N.E. 509
• Parties: ALDEN v. WHITE et al.
• Decision Date: 26 February 1903
• Court: Indiana Appellate Court

32 Ind.App. 671

66 N.E. 509

ALDEN

v.WHITE et al.¹

Appellate Court of Indiana, Division No. 1.

Feb. 26, 1903.

Appeal from circuit court, Allen county; Wm. J. Vesey, Special Judge.

Action by John W. White, as administrator of John B. White, deceased, to revive a judgment and decree of foreclosure recovered by John B. White against James R. Godfrey and wife. Carrie S. Alden appeared and filed a cross-complaint as assignee of 8/15 of the judgment, and claimed priority. From an order denying her motion to modify the judgment rendered, so as to give her priority over the plaintiff, she appeals. Reversed.W. H. Shambaugh and S. R. Alden, for appellant. Barrett & Morris, C. A. Hays, Robt. Lowry, Henry Colerick, J. E. K. France, W. G. Colerick, Guy Colerick, and K. C. Larwill, for appellee.

BLACK, P. J.

The appellant sought unsuccessfully the modification of the judgment in a suit commenced in 1890 by James B. White to revive a certain judgment rendered in 1876. White, whose personal representative is one of the appellees, filed a complaint and a supplemental complaint, and the appellant filed a cross-complaint and a supplemental cross-complaint. The averments of all these pleadings were by the court found to be true, and the facts illustrating the contention of the parties, shown by those pleadings, were substantially as follows: In 1876 James B. White instituted in the court below a suit against James R. Godfrey and Archange Godfrey, his wife, on four promissory notes executed by James R. Godfrey to said White, and to foreclose four mortgages on certain land in Allen county, executed at various times by said Godfrey and wife to White, to secure the payment of the notes. October 25, 1876, judgment was rendered in that suit in favor of White against James R. Godfrey on the notes for $7,242.23, with costs, without relief from valuation and appraisement laws, and against both of the defendants therein for the foreclosure of the mortgages and the sale of the real estate, or so much thereof as might be necessary to pay the judgment and costs and accruing costs, which judgment, duly rendered, is in full force and effect, and remains due and wholly unpaid. February 3, 1882, White, the judgment plaintiff, sold and assigned to each one of 12 persons, not including any parties to said action, 1/15 part of said judgment-being, in all, 12/15 of the judgment, all of which assignments were duly made and entered in the order book of said court, at the place therein where the judgment was entered. The remaining 3/15 part of the judgment was retained by the judgment plaintiff, and was still held by him at the rendition of judgment in the case at bar. At and before the execution of the mortgages, and at the time of the rendition of the judgment, in 1876, Archange Godfrey was the owner of the mortgaged real estate, and she continued to be such until her death. She died intestate in 1885, leaving, surviving her, as her only heirs at law, to whom said real estate descended, said James R. Godfrey, her husband, and a number of children and grandchildren of said James R. and Archange Godfrey. Letters of administration never were issued on the estate of Archange Godfrey. July 21, 1894, James R. Godfrey died intestate, leaving surviving, as his only heirs at law, the other persons who were heirs at law of Archange Godfrey, deceased. The estate of James R. Godfrey, deceased, is insolvent. Eight of the 12 persons to each of whom said White had assigned 1/15 part of the judgment and mortgage lien, severally sold, transferred, and assigned to the appellant, Carrie S. Alden, their several interests in the judgment so assigned to them by White-being, in all, 8/15 thereof; and thereafter the other 4 of said 12 persons assigned their interests in the judgment-being 4/15 thereof, to James B. White, the judgment plaintiff. The appellant continued to be the owner of the 8/15 of the judgment, and the judgment plaintiff continued to be the owner of the 7/15 thereof, at the time of judgment in the case at bar. The 12 persons to whom the judgment plaintiff so assigned 12/15 of the judgment were descendants of John B. Richardville, who in his lifetime was principal chief of the Miami tribe of Indians; and they, as members of that tribe, by virtue of treaties with the United States, were each entitled to the sum of $695.75, payable in January, 1882, when they were all minors. White, the judgment plaintiff, procured the father of 2 of these minors, and the mother of the other 10 of them, to be appointed guardians of the minors, to receive the money so due them; and he took from said guardians the money so received for the minors, amounting to $695.75 for each of them, and, in consideration thereof, assigned of record 1/15 of said judgment and decree to each of said minors. Execution on the judgment and decree was stayed by agreement of record between said White and James R. and Archange Godfrey till 1882. The assignments of the interests of 8 of these 12 persons to the appellant were made after the commencement of this suit to revive the judgment, and the assignments of the interests of the other 4 of those persons were made to White afterward, also pending this suit. In the repurchase of the 1/15 interest of each of said 4 persons by the judgment plaintiff, he paid $500 for each of such interests to their guardian. The assignees of White, for the protection of the judgment and mortgage liens which had been assigned to them, procured the avoidance of certain alleged tax liens on the land, at great expense, to which White did not contribute. The court adjudged that the decree of foreclosure and order of sale in favor of White against James R. and Archange Godfrey, with the lien of the mortgage on which the decree was based, be revived, and that execution issue thereon for the amount of said former judgment and decree, with interest thereon from the rendition thereof, for the use of White, the judgment plaintiff, and the appellant; also that the clerk issue to the sheriff a certified copy of said decree and of this decree, and that the lands in question, or so much thereof as may be necessary to pay the decree and costs, and the right, title, and interest of the defendants herein, of whom there were a great number, be sold thereon by the sheriff, etc.; also that the proceeds of the sale be applied, first, in payment of the costs, etc.; second, in the payment to the appellant and the plaintiff of the amount of the former judgment and decree, with interest, as follows: 8/15 thereof to the appellant, and 7/15 thereof to the plaintiff, and the remainder, if any, into court, to abide the order thereof, “and that should such proceeds be insufficient to pay the full amount of said former decree and interest, after the payment of costs as directed, the same to be prorated to plaintiff and Carrie S. Alden in proportion to their said interests therein.” The appellant moved to modify this judgment and order of distribution in each of the following respects: First, to strike out the provision for prorating the proceeds between the plaintiff and the appellant, if insufficient, after payment of costs, to pay the entire mortgage lien and decree revived, which provision was recited in the motion; second, to adjudge priority of right to the surplus proceeds of sale, after payment of costs, in favor of the appellant, at least as against the 3/15 of the mortgage lien and decree never sold and assigned by the plaintiff, and to order and direct the prorating of such surplus, in case of insufficiency thereof to pay the entire decree, to the appellant and the plaintiff in the proportion of 8 to the appellant and 4 to the plaintiff, until 12/15 of the entire decree and interest be paid, and providing for payment of the remaining 3/15 of the decree from the remainder of such surplus; also that the court adjudge priority of right in the appellant to the surplus proceeds of the sale herein, after payment of costs, to the extent of 8/15 of the mortgage lien and decree revived, and direct the payment of her said interest before payment of the 7/15 to the plaintiff. This motion was overruled, and the action of the court in overruling it has been reserved for review.

It is a long-settled doctrine in this state that a mortgage of real estate is only a lien on the land as a security for the debt; the legal title remaining in the mortgagor, subject to the lien of the mortgage. A mortgage purporting to be given to secure the payment of a note secures the debt of which the note is evidence, and no change in the form of the evidence of the indebtedness, or in the mode or time of payment thereof, will discharge the mortgage. Bodkin v. Merit, 86 Ind. 560;Simmons Hardware Co. v. Thomas, 147 Ind. 313, 46 N. E. 645;Bray v. First Ave., etc., Co., 148 Ind. 599, 47 N. E. 1073. Where judgment is recovered on a note, the note is merged in the judgment; and the judgment, and not the original evidence of the debt, is the foundation on which to rest any additional proceeding for the collection of the debt. Cissna v. Haines, 18 Ind. 496. A decree of foreclosure of a mortgage merges the mortgage as a cause of action, but not the special lien of the mortgage. Evansville Gaslight Co. v. State ex rel., etc., 73 Ind. 219, 38 Am. Rep. 129. The general rule is that a foreclosure and sale of mortgaged premises invests the purchaser with the fee simple, and the mortgage becomes extinct. Murdock v. Ford, 17 Ind. 52. The title passes when the deed is made. The judgment of foreclosure, with or without a sale thereunder, except a sale consummated by a deed, does not discharge the lien. Davis v. Langsdale, 41 Ind. 399. The assignment of a judgment carries the debt, and with it all rights and remedies for its recovery or collection. Bolen v. Crosby, 49 N. Y. 183. The assignment of a debt secured by a lien carries the lien. Forwood v. Dehoney, 68 Ky. 174. The assignment of a judgment on a note secured by...