Broeker v. Morris

Decision Date27 October 1908
Docket Number6,372
Citation85 N.E. 982,42 Ind.App. 417
PartiesBROEKER v. MORRIS, SHERIFF, ET AL
CourtIndiana Appellate Court

From Clark Circuit Court; Harry C. Montgomery, Judge.

Suit by Henry B. Broeker against Raymond J. Morris, as Sheriff of Floyd County, and another. From a judgment for defendants plaintiff appeals.

Affirmed.

Laurent A. Douglass and Edward F. W. Keiser, for appellant.

Edward Doherty, McIntyre, Bulleit & James and Bernard Korbly for appellees.

COMSTOCK J. RABB, C. J., concurs. ROBY, J., concurs.

OPINION

COMSTOCK, J.

Suit commenced in the Floyd Circuit Court. Upon change of venue a demurrer for want of facts was sustained to the complaint by the Clark Circuit Court, and, appellant refusing to plead further, judgment was rendered against him for costs.

The ruling upon the demurrer is assigned as error.

It is not entirely clear, from the averments in the complaint, what was the exact character of the decree entered in the court below, a copy of the same not being set out in the complaint, but the following facts are fairly inferable from the averments of the complaint: Roberts and McGregor had some kind of a lien, the nature of which is not disclosed, for $ 503.82, which was paramount to all other liens, on four separate tracts of land. The Aetna Life Insurance Company held a mortgage securing a debt for $ 4,592.63, which was a second lien on said land. Appellee Maggie O'Donnell held a mortgage securing a debt of $ 1,505.30, which was a third lien on the first three tracts covered by the other two liens. Henry L. Graf held a mortgage securing a debt of $ 441, which was a third lien on the fourth tract, the tract not being included in O'Donnell's mortgage. The Aetna Life Insurance Company brought suit against the appellant and all the lien holders to foreclose its mortgage and settle the priority of liens. Such proceedings were had in this suit as resulted in a decree establishing the liens and their priority, and ordering the premises sold for the payment of said liens. The property was duly sold by the sheriff, the first three tracts for $ 5,050 and the fourth tract for $ 2,300. Out of this fund the sheriff paid and discharged the costs of the proceedings, the Roberts and McGregor lien, the insurance company's mortgage and the Graf mortgage, and had left in his hands $ 1,500.

After the sale appellant presented his schedule, under the provisions of the law governing the right of resident householders to exemption, and demanded that $ 600 of the fund left in appellee Morris's hands be set off to him as such resident householder and judgment defendant. Appellee O'Donnell at the same time claimed that all of said fund should be applied to the satisfaction of her mortgage debt.

The complaint fails to aver what relation the appellant sustained to the mortgages foreclosed or the land sold. Appellant seems to have assumed that the court judicially knew, from the fact that he was a party defendant to the decree of foreclosure, that therefore he must have been the mortgagor and the owner of the equity of redemption in the land sold.

The assumption is not warranted. Before the appellant could have any possible right to any part of the proceeds of the sale of these lands as due him on his exemption, or on any other ground, his complaint should affirmatively show, by direct averment, that he was the owner of the equity of redemption in the lands sold, or that he had some legal or equitable interest therein that gave him the right demanded.

But, conceding that the allegations of the complaint sufficiently show that the appellant was the mortgagor in question, the judgment defendant in the proceedings upon which the lands were sold, and the owner of the equity of redemption therein at the time of the sale, he still had no valid claim to any part of the proceeds arising from the sale as exempt from execution as against appellee O'Donnell, if his claim for such exemption was seasonably presented to the sheriff, because the lien of Roberts and McGregor, and of the Aetna Life Insurance Company, covered all the land sold, and appellee O'Donnell had the equitable right as against the appellant to insist that these liens should be paid and discharged out of the proceeds of the property sold, not covered by her mortgage, and her rights to that extent protected. Applegate v. Mason (1859), 13 Ind. 75; Hahn v. Behrman (1880), 73 Ind. 120; Trentman v. Eldridge (1884), 98 Ind. 525; Aurora Nat. Bank v. Black (1891), 129 Ind. 595, 29 N.E. 396; Bank of Commerce, etc., v. First Nat. Bank, etc. (1898), 150 Ind. 588, 50 N.E. 566; Jenkins v. Craig (1899), 22 Ind.App. 192, 52 N.E. 423; Diamond Flint Glass Co. v. Boyd (1903), 30 Ind.App. 485, 66 N.E. 479. The demurrer was properly sustained.

But the controlling question presented and most discussed by counsel is whether a mortgagor, after the sale of property under foreclosure proceedings, is entitled to claim his exemption as a resident householder, out of the remainder of the proceeds derived from the sale, before the entire decree has been satisfied. This question must, under the decisions in this State, be answered in the negative. Slaughter v. Detiney (1860), 15 Ind. 49; Storm v. Ermantrout (1883), 89 Ind. 214; Russell v. Bruce (1902), 159 Ind. 553, 64 N.E. 602; Lahr v. Ulmer (1901), 27 Ind.App. 107, 60 N.E. 1009; Gibbons v. Cutler (1884), 2 Delaware Co. Reports 214.

Moss v. Jenkins (1897), 146 Ind. 589, 45 N.E. 789, holds that in an execution on a judgment in personam the claim for exemption must be made before sale, otherwise, the right will be waived. Citing, Pate v. Swann (1845), 7 Blackf. 500; State, ex rel., v. Melogue (1857), 9 Ind. 196; Eltzroth v. Webster (1860), 15 Ind. 21; Godman v. Smith (1861), 17 Ind. 152; Sullivan v. Winslow (1864), 22 Ind. 153; Finley v. Sly (1873), 44 Ind. 266; Gregory v. Latchem (1876), 53 Ind. 449; Terrell v. State, ex rel. (1879), 66 Ind. 570; Williams v. Osbon (1881), 75 Ind. 280; Over v. Shannon (1881), 75 Ind. 352; Boesker v. Pickett (1882), 81 Ind. 554; Haas v. Shaw (1883), 91 Ind. 384, 46 Am. Rep. 607; State, ex rel., v. Read (1884), 94 Ind. 103; Berry v. Nichols (1884), 96 Ind. 287; Guerin v. Kraner (1884), 97 Ind. 533; Robinson v. Hughes (1889), 117 Ind. 293, 10 Am. St. 45, 3 L. R. A. 383, 20 N.E. 220; Graves v. Hinkle (1889), 120 Ind. 157, 21 N.E. 328; Coppage v. Gregg (1891), 1 Ind.App. 112, 27 N.E. 570; Wagner v. Barden (1895), 13 Ind.App. 571, 41 N.E. 1067.

Decrees for the foreclosure of mortgages and judgments in attachment proceedings are in rem or quasi in rem. 2 Black, Judgments (2d ed.), §§ 793, 810. In proceedings in attachment, exemptions must be claimed before judgment. Perkins v. Bragg (1868), 29 Ind. 507; Bates v. Spooner (1874), 45 Ind. 489; Haas v. Shaw (1883), 91 Ind. 384, 46 Am. Rep. 607. So that, if the fund in controversy was derived either from a proceeding in rem or in personam, under the decisions the claim is made too late. Where sale is made under decree, the debtor should give notice that he will claim his exemption from the proceeds after the payment of the judgment. Gibbons v. Cutler, supra.

The complaint avers that appellant did not know until after the sale under such decree that there would be surplus money in the hands of the sheriff out of which he could claim his exemption, and that he made the claim promptly upon learning the facts. He claims that there was nothing until after the sale of the land under the foreclosure decree out of which to claim exemption, and that under the circumstances a sufficient excuse is shown for not having made the claim earlier. Citing, Lahr v. Ulmer (1901), 27 Ind.App. 107, 60 N.E. 1009; Weaver v. Gray (1906), 37 Ind.App. 35, 76 N.E. 795; 12 Am. and Eng. Ency. Law (2d ed.), 227.

This court in Lahr v. Ulmer, supra recognizes the proposition that there may be...

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