Barnard v. Brown

• Decision Date: 12 October 1887
• Citation: 112 Ind. 53,13 N.E. 401
• Parties: Barnard and others v. Brown and others.
• Court: Indiana Supreme Court

112 Ind. 53

13 N.E. 401

Barnard and others

v.Brown and others.

Supreme Court of Indiana.

October 12, 1887.

Appeal from circuit court, Elkhart county.

Zook Bros., for appellants. W. D. Wilson, for appellees.

Niblack, J.

Complaint by Edward P. Brown and David Ullery against James Barnard, Bennett Lyman, James Sims, John S. Gould, Charles Fleetwood, George H. Wells, Meyer N. Jacobs, Lewis Heilbrenner, William D. Messenger, William Shearer, and Samuel J. Shearer to have certain apparent liens on real estate canceled and discharged. As causes of complaint it was alleged that, on the seventeenth day of November, 1883, the defendants James Barnard and Bennett Lyman recovered a judgment against the plaintiff Brown before a justice of the peace of Elkhart county for the sum of $9.10, and costs of suit taxed at $5.91; that on the fifteenth day of January, 1884, a duly certified transcript of said judgment was filed and properly recorded in the office of the clerk of the Elkhart circuit court; that on the twenty-sixth day of November, 1883, the defendant Sims also recovered judgment before the same justice of the peace for the sum of $73.73, and costs of suit taxed $5.76; that on the fifteenth day of January, 1884, a certified transcript of that judgment was also filed and recorded in the office of the said clerk of the Elkhart circuit court; that on the twenty-ninth day of January, 1884, the defendants Gould, Fleetwood, and Wells likewise recovered a judgment before the same justice against the plaintiff Brown for the sum of $68.95, a transcript of which said judgment was likewise filed and recorded in the same clerk's office on the sixth day of February, 1884; that on the thirty-first day of January, 1884, the defendant Messenger recovered a judgment against the plaintiff Brown before the same justice for a sum of money not specifically named, a transcript of which judgment was in like manner filed and recorded in the same clerk's office; that on said thirty-first day of January, 1884, the defendants Jacobs and Heilbrenner also recovered a judgment against the plaintiff Brown before the same justice for the sum of $32.45, a transcript of which judgment was also on the sixth day of February, 1884, filed and recorded in the same clerk's office; that on the aforesaid thirty-first day of January, 1884, the defendants Shearer and Shearer likewise recovered a judgment before the same justice against the plaintiff Brown for $41.82, a transcript of which was likewise filed and recorded in the same clerk's office on said sixth day of February, 1884; that at and prior to the times of filing the several transcripts of said judgments respectively the plaintiff Brown was the owner of a certain lot in the town of Nappanee, in said county of Elkhart, on which there existed two mortgages amounting to the aggregate sum of $470; that said Brown at the time owned personal property of the value of $223; that said lot, when valued, subject to said mortgages, and personal property, together, amounted to less than $600; that said Brown, being unable to take up and discharge said mortgages, and being desirous of saving the loss and expense of a foreclosure and sale under the same, sold said lot to his co-plaintiff, Ullery, on the thirteenth day of February, 1884, for the sum of $800, and that on that day, together with his wife, conveyed the same by warranty deed to him, the said Ullery; that out of and as a part of said purchase money the said Ullery was to and did pay off said mortgages; that for the remainder of said purchase money, that is to say, for the sum of $315, he executed his promissory note to the said Brown; that the said Brown was then and for the preceding four years...