Bennett v. Closson
| Decision Date | 19 September 1894 |
| Docket Number | 16,877 |
| Citation | 38 N.E. 46,138 Ind. 542 |
| Parties | Bennett et al. v. Closson |
| Court | Indiana Supreme Court |
From the Cass Circuit Court.
The judgment is affirmed.
J. C Nelson and Q. A. Myers, for appellants.
D. D Dykeman, W. F. Wilson and G. C. Taber, for appellee.
On the 8th day of September, 1890, Lydia A. Locke, administratrix one of the appellants, filed her complaint in the court below, against the appellee and wife, and also against the appellant Samuel R. Bennett and wife, alleging that on and prior to February 2, 1889, said Bennett was the owner of certain real estate described, situated in Cass county Indiana; that on said day, his wife joining, he executed to said Closson a conveyance for said land, in form a warranty deed, but in point of fact a mortgage, to secure an existing indebtedness from Bennett to Closson, in an amount to the plaintiff unknown; that after the making of such conveyance Bennett had no property subject to execution, and has not since had any; that on the 25th day of March, 1889, the plaintiff recovered against Bennett a judgment in said court in the sum of $ 377.80, which is due and unpaid; that at the time of the making and receiving of such conveyance Closson had notice of the pendency of the suit, which culminated in plaintiff's said judgment, and took said mortgage in the form of a warranty deed for the purpose of cheating, hindering and delaying the creditors of Bennett, and especially plaintiff; that on the 3d day of February, 1890, Bennett and wife executed to Closson a second conveyance in form of a quitclaim deed for the same land, which plaintiff alleged to be also a mortgage to secure the same debt; asking that Closson be required to account for the rents of said real estate; that he make known the amount due him from Bennett, and that she be permitted to redeem said land from said mortgage debt, filing also a lis pendens notice.
To this complaint all the defendants answered in general denial. At the same time, Closson filed his cross-complaint against the plaintiff and the other defendants, bringing in also other parties having or claiming prior liens on said real estate.
The cross-complaint is in two paragraphs.
In the first paragraph it is admitted that the deed made to Closson by Bennett, February 2, 1889, was, in effect, a mortgage to secure a debt of $ 2,100 due Closson; it is also admitted that plaintiff recovered judgment, as alleged, against Bennett. The cross-complainant then alleges that to protect his said mortgage lien he was obliged to pay certain prior liens on said land, also taxes; that the total amount so due him is three thousand, five hundred dollars; that said property is not sufficient in value to satisfy said debt and prior liens without applying the rents and profits pending the suit; praying that his mortgage be foreclosed, also mortgage securing prior liens which he was compelled to pay; that a receiver be appointed to collect the rents and profits; that the land be sold for payment of debt, and other proper relief.
In the second paragraph of the cross-complaint the same allegations and admissions are made. It is further alleged that the quitclaim deed of February 3, 1890, conveyed to Closson the equity of redemption in said land, but that such conveyance was, in all things, subject and pursuant to his rights under the deed or mortgage of February 2, 1889, "which is still in full force, unpaid and unsatisfied, and was in no sense intended to be an extinguishment of his rights under said original deed."
It is also alleged that the cross-complainant has offered to allow plaintiff to redeem said land from his said debt, but that she has failed to so make redemption, "and her said judgment and claim of right to redeem is a cloud on cross-complainant's title"; that Bennett is insolvent and irresponsible; that said property mortgaged and so held by cross-complainant is not of sufficient value, after paying the prior mortgage lien of the cross-defendant Haney, to pay the sum due cross-complainant upon a redemption by said Locke."
The prayer is that a receiver be appointed to take care of the crops; that cross-complainant's rights under the deed or mortgage of February 2, 1889, be declared by the court, and the amount due him be fixed; "and that foreclosure be decreed thereof against said Lydia A. Locke, administratrix of the estate of Abia Locke, deceased, and that said Locke be required to redeem at once from said mortgages, or that on failure to so redeem she be forever barred and enjoined from setting up any right to said property or to redeem the same, and that cross-complainant's title be quieted against all cross-defendants, except William E. Haney, executor of William W. Haney's will; that his lien for his rental be enforced against the crops in the hands of Samuel R. Bennett, and that the receiver of the court sell the same on the court's order or divide and deliver to this cross-complainant his share thereof; that he recover costs and all other proper relief."
To this cross-complaint the appellant Samuel R. Bennett answered in three paragraphs: (1) a general denial, (2) a plea of payment, (3) averring that both deeds mentioned were given to secure indebtedness from Bennett to Closson, that part of said indebtedness was paid, and asking for an accounting and that he be permitted to redeem. Answers were also made by Lydia A. Locke and other cross-defendants.
In reply to the third paragraph of Bennett's answer to the cross-complaint the cross-complainant said that the quitclaim deed of February 3d, 1890, "was in settlement of all accounts theretofore had between said Bennett and cross-complainant, and upon the consideration of the debt then due said cross-complainant;" that said deed was an absolute conveyance of the land and of the equity of redemption thereof, the prior mortgage, or deed, being kept alive only for the protection of cross-complainant against judgment creditors of Bennett.
The court found the facts substantially as alleged in the complaint and cross-complaint, finding the debt due the cross-complainant to be $ 2,356.04, and that said sum should be paid to him by the plaintiff within ninety days, upon which payment "the plaintiff should be subrogated, by virtue of such redemption, to all the rights held by said Edgar D. Closson under and by virtue of said mortgage of February 2d, 1889, and the said prior liens hereinbefore described," subject to prior lien of the defendant, Haney; that the property "should be sold by the sheriff for the payment of the amount so paid in redemption;" that on failure of the plaintiff to so redeem, her right and equity of redemption "should be barred, and that the title of said Edgar D. Closson in and to said real estate should be quieted as against said Lydia A. Locke."
"And the court further finds for the cross-complainant, Edgar D. Closson, on the second paragraph of his cross-complaint, that he is the owner of the real estate in said cross-complaint described under the deed executed by Samuel R. Bennett and May R. Bennett to said Closson, February 3d, 1890, which the court finds to be an absolute conveyance of the title to said real estate, and that as such owner said Edgar D. Closson is entitled to have his title to said real estate quieted against the plaintiff, Lydia A. Locke, administratrix of the estate of Abia Locke, deceased, subject only to her right of redemption within ninety days from this date, as found by the court." It was also found that the appellants, Bennett and wife, were tenants and lessees of the appellee as to the lands in question, under lease dated February 3d, 1890, and should account to him for rents and profits thereof.
Bills of exception were filed by the plaintiff. The plaintiff also moved the court to modify the finding, and in arrest of judgment, likewise for a new trial, all of which motions were overruled.
In the decree of the court it was ordered that the plaintiff, Lydia A. Locke, administratrix, be permitted to...
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