Bodkin v. Merit
| Decision Date | 16 June 1885 |
| Docket Number | 11,721 |
| Parties | Bodkin et al. v. Merit |
| Court | Indiana Supreme Court |
From the Switzerland Circuit Court.
Judgment affirmed.
J. B Coles, A. C. Downey and G. E. Downey, for appellants.
S Carter, C. S. Tandy and W. R. Johnston, for appellee.
The material allegations of the appellee's complaint are these: That on the 23d day of December, 1878, the defendant James F. Bodkin was indebted to the National Bank of Rising Sun in the sum of $ 7,600, for which he had theretofore executed his promissory note, with James H. Merit as surety that James F. Bodkin was also indebted to the First National Bank of Vevay in the sum of $ 600, for which he had executed his promissory note, with James H. Merit as surety; that Bodkin was still further indebted to Sarah Woods in the sum of $ 850, evidenced by his promissory note, on which James H. Merit was surety; that on the day Bodkin and his wife, Lodina H. Bodkin, executed to James H. Merit a mortgage on real estate to indemnify him against loss on account of his suretyship; that James F. Bodkin did not pay any of the notes except the one executed to Sarah Woods; that the National Bank of Rising Sun recovered judgment on the note executed to it against the principal and surety therein, on the 7th day of May, 1880; that the surety afterwards commenced suit to foreclose the indemnifying mortgage executed to him, alleging in his complaint, among other things, the execution of the note and mortgage, the failure to pay the note, the recovery of judgment thereon, the execution of the notes to the First National Bank of Vevay, that James F. Bodkin was insolvent, that the real estate described in the indemnifying mortgage was encumbered by a prior mortgage to the amount of $ 5,300, and that it was not of sufficient value to pay that encumbrance and the amount due upon the judgment of the National Bank of Rising Sun; that James F. Bodkin had sold his personal property, retaining only the amount exempted by law, and had filed a schedule claiming it under the exemption law; that he had attempted to lease the mortgaged real estate and secure the rent in advance, and was endeavoring to place the property in the hands of his wife to avoid payment of rent. It is further alleged in the complaint in the present suit that the court, in the suit brought by the surety, James H. Merit, appointed John W. Powell a receiver to collect the rents accruing from the real estate; that a decree foreclosing the mortgage was rendered, sale made thereon, and the property purchased by the appellee on the 5th day of March, 1881; that the sheriff made a memorandum on the back of the certified copy of the decree; that the sheriff retained the copy of the decree without making a return thereon, and gave the appellee time to raise the purchase-money, and waited for the money during the life of the decree; that the sheriff tendered the appellee a certificate of sale, and requested the payment of the purchase-money, and not receiving it returned the decree not satisfied; that afterwards James H. Merit, the surety, moved for an order against the appellee to compel the payment of the purchase-money, less $ 178.38, previously paid, and the court on said motion rendered judgment against the appellee for $ 7,321, the unpaid balance of the purchase-money, and the money was paid by appellee, together with interest and ten per centum damages, on the 20th day of February, 1882; that after making this payment he demanded a deed; this demand was refused, and the appellee petitioned for a writ of mandate to compel the sheriff to execute the deed, but on the hearing the court refused the writ, on the ground that no sufficient written memorandum of the sale was made by the sheriff. The prayer of the complaint is that the appellee be subrogated to the rights of the mortgagee and judgment creditor, James H. Merit, that an order of foreclosure issue, and that sale of the mortgaged premises may be made.
The complaint makes a case entitling the appellee to subrogation. His money satisfied the debts of the mortgagors and paid the claims of creditors, and he has a right to the securities held by the mortgagor and creditors. It can make no difference to the mortgagors and debtors, that the appellee was unable to secure a deed from the sheriff; that fact does not work them any injury, nor does it impair the force of the payment of the debts which were owing from them, and not from the appellee. It is a familiar principle of equity, and is one fully recognized by our statute and decisions, that payment of a debt by a purchaser at an invalid sheriff's sale subrogates the purchaser to the rights of the creditor. The invalidity of the sale does not destroy the right of subrogation. It would be against good conscience and natural justice to permit mortgagors to hold property pledged for a debt against one who had paid their debt, expecting to secure a title to the land pledged as security for its payment. Our decisions are firmly set against such a doctrine as that upon which appellants' theory is founded. Short v. Sears, 93 Ind. 505; Hines v. Dresher, 93 Ind. 551; Carver v. Howard, 92 Ind. 173; Jones v. French, 92 Ind. 138; Willson v. Brown, 82 Ind. 471; Ray v. Detchon, 79 Ind. 56; Reily v. Burton, 71 Ind. 118; Walton v. Cox, 67 Ind. 164; Muir v. Berkshire, 52 Ind. 149; Seller v. Lingerman, 24 Ind. 264; Bunts v. Cole, 7 Blackf. 265; S. C., 41 Am. Dec. 226.
The delay of the appellee in paying the purchase-money did not deprive him of his right to subrogation. Mere delay in the payment of the purchase-money can not destroy the right of the purchaser to the liens securing the debt he pays, for the main facts upon which the right of subrogation rests remain, and the delay works the debtor no injury. Such a delay is not a wrong within the meaning of the maxim that no man can take advantage of his own wrong. The purchaser in this instance seeks no benefit from a wrong; what he seeks is to hold the same liens that were held by the creditors whose claims were paid by him.
A purchaser at an invalid sheriff's sale is not a volunteer. It is the right of the citizen to bid at sheriff's sales, and it is not for the debtors, whose debt the bidder's money pays, to denominate him a volunteer, or to deny his right to make the debt out of the property pledged for its payment. It can make no difference to the debtor who gets the property provided it goes in discharge of his debt; this is where he pledged it to go, and there is where equity decrees that it shall go.
The denial of the writ of mandate did not adjudicate upon the appellee's right to subrogation. There is no conclusive adjudication where there is neither an issue...
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