Bell v. Corbin

• Decision Date: 04 January 1894
• Docket Number: 16,324
• Citation: 36 N.E. 23,136 Ind. 269
• Parties: Bell et al. v. Corbin et al
• Court: Indiana Supreme Court

36 N.E. 23

136 Ind. 269

Bell et al. v. Corbin et al

No. 16,324

Supreme Court of Indiana

January 4, 1894

From the Marshall Circuit Court.

The judgment is affirmed.

I Conner, for appellants.

J. D McLaren and H. Corbin, for appellees.

OPINION

Dailey, J.

On June 24th, 1871, one Michael W. Downey was the owner in fee-simple of the land described in the pleadings, and on that day he with his wife joining him, executed to the State of Indiana a mortgage for the use and benefit of the common school fund of said State, to secure a loan from said fund, of $ 1,000 bearing eight per cent. interest per annum, payable in advance; and on the 28th day of August, 1875, said Downey and wife conveyed said land to one Susan Ely, and put her in possession thereof, subject to said school fund mortgage, which was then unpaid; and on the 22d day of April, 1876, said Susan Ely and her husband conveyed said land to one Isaac E. Bell, except forty acres out of the southeast corner thereof, subject to said mortgage, which was still unpaid, and he was put in possession thereof; the excepted forty acres having been conveyed before that to one Daniel C. Shively, who was put in possession of the same, and who conveyed it to the appellee Corbin, after recovering possession of it from one William Sear.

The school fund mortgage still being unpaid, and interest having accumulated thereon to a large amount, Alexander C. Thompson, then county auditor of Marshall county, after advertising said land for sale at public auction, as required by law, did, on January 13th, 1879, offer said land in the manner required by law, for sale upon said mortgage, and no person bidding on the same, or any part thereof, he, as such county auditor, bid in said lands for the State of Indiana, for the use of the common school fund, for the amount of principal, interest, costs, and damages due at that time, to wit, $ 1,312.33, as provided in section 4393, R. S. 1881. At the time said land was bid in by said auditor, the appellant Bell was in possession, as owner, of all of said land, except the forty acres, of which the said Shively was then in possession as owner. Afterwards, on the 28th day of March, 1881, Keim K. Brook, then auditor of said county, and the immediate successor in office of said Thompson, acting upon the theory that the bidding in of said land, on account of the common school fund, by his predecessor in office, the said Thompson, was void, advertised and sold the said land as upon said school fund mortgage, to one William Sear at and for $ 1,461.50 cash in hand, that being the full amount of principal, interest, costs, and penalty then due upon said note and mortgage; and he, as such auditor, executed, recorded, and delivered a deed for said land to said Sear, as purchaser.

Bell and Shively were ejected from said lands, and Sear was put in possession thereof under his purchase and deed from said Brook as county auditor. Afterwards, on July 29th, 1894, appellant Bell, with his wife joining, executed a power of attorney, and duly acknowledged the execution thereof, to said Thompson, authorizing him inter alia to sue for the possession of and to sell and convey their interest in said land, in their names, to whomsoever he pleased at such price as he saw proper to take, which was duly recorded in the recorder's office of Marshall county, on September 12th, 1884. Concurrently with the execution of said power of attorney by said Bell and wife said Thompson executed to said Bell his written contract of purchase of the interest of said Bell and wife in said land for $ 500, to be paid as soon as the title to the same should be perfected in Bell, at which time Bell and wife were to execute a deed to Thompson for said land, in the event of a recovery in the suit brought by Thompson under the power of attorney. This contract was delivered to, and retained by, Bell, at the same time he executed and delivered the power of attorney to Thompson. About the same time said Daniel C. Shively executed to said Thompson a power of attorney, authorizing him to sue for the possession and to sell his southeast forty acres, from which he had been ejected by said Sear wrongfully, and suit was brought in Shively's name by Thompson, under the power of attorney, against Sear, and judgment for possession and for damages was rendered in said suit in favor of Shively and against Sear, in the same action. Before the rendition of said judgment, the cause was consolidated by the court for trial, with the case brought by Thompson in Bell's name against Sear, and after such recovery and possession obtained by Shively, he sold and conveyed his said forty acres to the appellee Corbin. Shively is making no further claim in this action, and we need make no mention of him hereafter or of said forty acre tract, in which Bell never had any interest.

On the 13th day of October, 1884, Thompson, in pursuance of said power of attorney from the appellant Bell, caused an action to be brought in the Marshall Circuit Court, in the name of appellant, Isaac E. Bell, as plaintiff, and against said William Sear, to set aside the sale of said land to said Sear by said Brook, as county auditor, and to recover judgment for the possession of said land and damages for being kept out of the possession, and such proceedings were had in said court in said cause, that on November 9th, 1885, a judgment was rendered setting aside said Auditor Brook's sale of said land to said Sear, and in favor of said Bell for possession of the real estate embraced in said mortgage, except forty acres adjudged to said Shively and for fifty dollars damages, and a writ of possession was awarded in said judgment.

Appellant Bell was put in possession of said land in pursuance of said judgment, and said Sear was subrogated to the rights of the State, as mortgagee, to the extent of $ 1,461.55, the amount of his bid made March 28th, 1881, with interest thereon at eight per cent. and decreed a lien on the land for the payment thereof. It was also ordered that the auditor should sell said lands, pay Sear his money out of the proceeds, and that the surplus should be paid 152/192 to Bell, and 40/192 to Shively.

No appeal was ever taken from this order.

On July 22, 1886, said Thompson--by virtue of the power of attorney and the authority given to and vested in him by the same, theretofore executed by said Isaac E. Bell and Harriet E. Bell, his wife, which the court found to be unrevoked--sold and conveyed said land to appellee Corbin for the consideration of $ 650, and said Corbin caused his said deed to be duly recorded in the recorder's office of said county, on September 25, 1886, when Morgan Johnson, then county auditor of said county, having before that date had said land, including said southeast forty acres, duly appraised as required by section 4393, R. S. 1881, supra, at $ 3,840, sold all of said land to appellant Isaac E. Bell, on five years' time. at seven per cent. interest, at and for said sum of $ 3,840, the full appraised value thereof, being $ 1,927.15 in excess of the school fund loan, interest, and costs, and issued, recorded, and delivered to him his certificate of sale, as such county auditor, and paid said auditor one years' interest, at seven per cent., on said sum, in advance, as required by law, and then took possession of all of said land including said southeast forty acres.

This was all he ever paid on said purchase. Of the one year's interest paid by Bell on the purchase-money, at the time the auditor delivered the certificate of sale to him, the auditor, under the order of the circuit court made in said consolidated suits of Bell and Shively against Sear, paid to Sear the interest due him on the school fund mortgage to which he had been subrogated by the decree of the court, and the remainder of it was claimed by Corbin, as assignee of Bell, under the deed executed to him by Thompson, as agent and attorney in fact of Bell and wife, and also by Bell, and the auditor refused to pay it to either of them. Thereupon Corbin commenced mandamus proceedings against the then county auditor, Charles H. Lehr, in the Marshall Circuit Court, in which action the remainder of the interest was adjudicated to Corbin, and paid to him by said auditor, by his warrant on the treasurer.

In January, 1887, appellee Corbin instituted a suit in the Marshall Circuit Court against William H. Molenhour, who was then in the possession of said land, to restrain him from cutting down and removing the timber trees from said premises, but before the cause came on for trial, a compromise was effected, by which Henry W. Hartman was agreed upon as trustee, who was to receive all money arising from the sale of the timber taken from the tract and pay the same to Sear on his lien, as secured to him in the order setting aside the sale to him of said real estate. Said Hartman, while so acting, received $ 400 from timber cut and removed, and, in the fall of 1887, bought $ 500 worth of timber from Molenhour. The $ 500 was to be paid to Sear and applied on his lien, together with seven per cent. interest, on October 16, 1891, and all of said moneys have been paid out, except $ 233.30.

Pending the time that Hartman was acting under his said trust, it became known that Bell had assigned his certificate to Margaret E. Molenhour soon after his purchase, but this fact did not appear of record in the auditor's office.

On January 31, 1888, Corbin brought this suit to require an accounting and marshaling of assets to be applied upon the school fund lien due Sear. Pending this suit, Bell, on March 2, 1888, brought an action asking that the deed of conveyance from said Thompson to the appellee Corbin for said realty be set aside and adjudged to be of...