Applegate v. Mason
| Decision Date | 28 November 1859 |
| Parties | Applegate and Others v. Mason |
| Court | Indiana Supreme Court |
From the Fayette Circuit Court.
The judgment is affirmed with 1 per cent. damages and costs.
J. S Reid, S. Heron, and B. F. Claypool, for appellants.
N. and G. Trusler, E. Vance, L. Barbour, and J. D. Howland, for appellee.
Suit by appellant against appellees, to foreclose a mortgage.
The material facts, as gathered from the complaint, answers, and evidence, are, tat on the first of April, 1854, the defendants, James Miller and William H. Huston, mortgaged to one John Arnold, a part, viz., twenty-four feet, of a lot in the town of Connersville, to secure two notes, each for 475 dollars, of that date, payable in one and two years.
On the 27th of October, 1855, Arnold recovered a judgment, in the Fayette Court of Common Pleas, against Miller and Huston, for 419 dollars, the balance on the first note.
In April, 1856, Arnold assigned the judgment so recovered together with the remaining note and mortgage, to the plaintiff, Mason.
On the 27th of October, 1855, Comstock & Co. recovered a judgment against Miller and Huston for 306 dollars, sued out an execution, which was levied upon the equity of redemption of Miller and Huston, in the twenty-four feet so mortgaged to Arnold, and on the 11th day of December, 1856, the equity of redemption was sold and conveyed by the sheriff to Applegate and others.
In December, 1855, Huston having conveyed his interest in the premises to Miller, Miller mortgaged the same, with other property, to Applegate and others to secure the payment of 4,130 dollars.
In November, 1855, Miller then owning seventeen feet in the same lot, mortgaged it, with other property, to James and William Huston, to secure the payment of 2,000 dollars.
On the 9th of May, 1856, Mason caused an execution to issue upon the judgment thus assigned to him against Miller and Huston, which was levied upon the seventeen feet above mentioned. This part of the lot was not covered by the mortgage from Miller and Huston to Arnold, but was the same part that was mortgaged by Miller to James and William Huston, as above stated. James and William Huston having a mortgage upon the seventeen feet, objected to any sale thereof, and threatened an injunction to prevent such sale, until the twenty-four feet covered by the mortgage to Arnold should be exhausted.
Mason, content that the matter should be settled by a proper adjudication, caused his execution, with the levy indorsed thereon, to be returned. He prays a foreclosure of the mortgage, and the judgment of the Court as to whether he shall proceed with his execution and sell the seventeen feet, or whether he shall make the whole due on the note and judgment out of the twenty-four feet thus mortgaged, which is alleged to be sufficient for that purpose. Miller is insolvent. All the parties in interest were before the Court, and set up their respective claims in the premises.
The Court, on the final hearing, ordered the levy on the seventeen feet to be set aside, and the twenty-four feet covered by the mortgage to be sold for the satisfaction of the note and judgment.
James and William Huston are, of course, satisfied with the decree; but Applegate, and the other defendants having a joint interest with him, bring the case here for revision. The real controversy is between James and William Huston, and Applegate, and others claiming with him; for it is entirely indifferent to Mason whether he shall make the whole of his money out of the twenty-four feet covered by his mortgage, or a part of it out of the seventeen feet covered by his levy.
It will be observed that James and William Huston acquired their lien by mortgage on the seventeen feet, in November, 1855; and this was prior to the time when Applegate and his associates took their mortgage on the twenty-four feet, which was in December following, and they did not purchase the equity of redemption until December, 1856. The levy of the execution upon the seventeen feet, was not made until Ma...
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