Browning v. Smith

• Decision Date: 16 May 1894
• Docket Number: 15,844
• Citation: 37 N.E. 540,139 Ind. 280
• Parties: Browning et al. v. Smith et al
• Court: Indiana Supreme Court

37 N.E. 540

139 Ind. 280

Browning et al. v. Smith et al

No. 15,844

Supreme Court of Indiana

May 16, 1894

Petition for a Rehearing Overruled Nov. 13, 1894.

From the Marion Circuit Court.

Judgment affirmed.

E. P Ferris, F. J. VanVorhis, W. W. Spencer, A. C. Harris, S Claypool, E. E. Stroup and W. E. Niblack, for appellants.

O. B. Jameson, for appellees.

Dailey, J. Hackney; J., took no part in this opinion.

OPINION

Dailey, J.

The appellants, who were the plaintiffs below, filed in the Marion Circuit Court a complaint of one paragraph in the usual form to quiet title to seven lots, numbered 114, 133, 134, 360, 361, 362 and 363, respectively, in H. R. Allen's second north addition to the city of Indianapolis. A general denial completed the issues and a trial was had, resulting in a finding and judgment for the appellees.

On May 13, 1889, the appellants took a new trial as a matter of right, and thereupon a new trial was had, likewise resulting in a finding and judgment for the appellees. Special findings and conclusions of law were rendered October 9, 1889, on which judgment was entered in favor of the appellees October 15, 1890.

No question arises on the pleadings. The only question is that presented by the assignment of error, that the court erred in its conclusion of law upon the facts found. Appellants assume that the court did so err. Appellees insist that there is no error in the record.

The special findings are numbered from one to twenty-two inclusive, and occupy too much space to be incorporated bodily into this opinion.

The following is a brief summary of what we consider the pertinent facts: As stated, the real estate involved in this litigation is seven lots in H. R. Allen's second north addition to Indianapolis. The Indianapolis Wagon and Agricultural Works became the owner of the lots, September 20, 1873. On October 18, 1876, while said company was the admitted owner in fee-simple of the lots in suit, Browning & Sloan recovered a judgment against it for $ 479.61, which became a lien thereon. On December 28, 1885, execution was levied on the real estate, and it was sold by the sheriff and bought in by the judgment creditors for $ 300 on January 23, 1886, and a sheriff's deed was afterward executed to the appellants, Browning and Ferris, the latter having taken the place of Sloan, in the certificate, by assignment on the first day of February, 1887. This constitutes the basis of the appellants' claim of title. On the 16th day of November, 1876, the "Indianapolis Wagon and Agricultural Works" became embarrassed, and, for the benefit of their creditors, made a general assignment and conveyance under the statutes of this State, to Eli F. Ritter, trustee of all their property and the lots described in the complaint, with others. The deed was properly executed, acknowledged, and recorded, November 23, 1876. Said Ritter, as trustee, qualified and gave bond December 1, 1876, and filed an inventory and appraisement January 16, 1877. On the 19th day of April, 1877, the said trustee reported to the circuit court of Marion county, Indiana, that he had $ 393.05 balance of money in his hands, which was allowed him for services. In said report it was shown that said "Wagon Works Company" had filed a petition in bankruptcy, and the court ordered said trustee Ritter to transfer to the assignee in bankruptcy of said bankrupt all of the property, and discharged said Ritter as such trustee on payment of costs, but no transfer or disposition of the lots in controversy was made by said trustee; the lots in litigation are and have remained an open commons uninclosed, with a small building on one of the small lots. The said "wagon works" had been adjudged a voluntary bankrupt on March 30, 1877. On the 20th day of April Henry C. Adams was appointed assignee, and John W. Ray, then register in bankruptcy, as such register, conveyed and assigned to said Adams, as such assignee, all the property of said corporation of which it was seized or possessed, or in which it had any interest, on the 30th day of March, 1877. On May 21st, 1879, said Adams, the assignee, by order of the court sold and conveyed to Davies M. Green, subject to incumbrances, for $ 11, all the interest the bankrupt had in lots 114, 133, 134, 360, 361 and 363, named in the complaint, and the assignee was discharged on May 19, 1880.

On the 4th day of February, 1880, one Frank McWhinney filed a complaint in the superior court of Marion county, Indiana, in one paragraph, to quiet title to the lots in controversy against about thirty defendants, including Browning & Sloan, who held the judgment under which the appellants claim title.

On April 9, 1880, the court found that McWhinney claimed under a tax title amounting to $ 338.55, and decreed a lien for the same and costs, and ordered the sum paid into court within a time given, and that in default of payment, the lots be sold and the equity of redemption of the defendants be foreclosed. Sale was had accordingly, and a sheriff's deed made thereon to the purchasers, viz., of lots numbered 114, 134 and 363, to Davies M. Green, and of lots 133, 360, 361 and 362, to Nathaniel N. Morris.

The appellees have, by mesne conveyances, succeeded to this title, as well as the title under the McWhinney suit, wherein the tax lien was foreclosed.

In the McWhinney suit the complaint erroneously described the lots as being in "Allen & Root's" second north addition to Indianapolis, and at one place, in a preliminary recital in the decree, they were also thus erroneously described. There never was any such addition as "Allen & Root's" second north addition. In the tax deed, as the finding shows, they were correctly described as being in "Allen's second north addition," etc., and they were thus correctly described in the judgment and decree where they were ordered sold, and they were sold and deeds made under proper description.

Appellants contend that there was a fatal variance between the description of the real estate in the complaint and as contained in the decree and order of sale.

Appellants' contention is:

1. That the proceedings in the McWhinney suit were void and ineffective to bar the Browning & Sloan judgment, because the owner of the equity of redemption was not a party thereto.

2. That the proceedings in the McWhinney suit were ineffective to conclude Browning & Sloan, because of the variance between the description of the lots in the complaint and in the decree and order of sale as above stated.

3. That the proceedings in said suit were ineffective as to said Browning & Sloan and did not conclude them, because the Marion Superior Court had no jurisdiction over the subject-matter of the action.

For convenience, we will consider appellants' points of contention in their inverse order.

As to the third and last objection to the foreclosure proceeding of April 9, 1880, that the court did not have jurisdiction of the subject-matter, it is urged that the act of December 21, 1872 (Acts of 1872, p. 129), was the first enactment in this State providing for the foreclosure of a tax lien, and that none was ever enforced prior thereto; that section 257, p. 120, provided that any person holding any deeds of lands executed by the county auditor for the nonpayment of taxes, may commence a suit in the circuit court of the county where such lands lie, to quiet his title, etc., and section 300, p. 139, stipulated that "All laws and parts of laws in conflict with the provisions of this act are hereby repealed."

Counsel say this was the law when McWhinney began his tax foreclosure, and when he obtained his judgment, and where the statute creates a new right and prescribes a mode of enforcing it, that mode must be pursued to the exclusion of all others. It is upon this theory that they challenge the jurisdiction of the Marion Superior Court.

In defining the jurisdiction of the superior court, it is provided, among other things, in section 1404, Burns R. S. 1894, that "Said court, within and for the county or counties in which it may be organized, shall have original concurrent jurisdiction with the circuit court in all civil causes except slander, and except such causes of which the court of common pleas now (February 15, 1871) has original exclusive jurisdiction," etc.

If we were to concede the appellants' contention, it would necessarily follow that the decree rendered in McWhinney's favor by the Marion Superior Court was void, and that Green and Morris, by their purchase thereunder, acquired no title to the property in controversy. It would also follow that such decree and sale did not divest the liens of the judgment creditors, and that such liens still exist.

In the case of Meikel v. Meikel, 119 Ind. 421, 20 N.E. 720, very similar in its character to the case at bar, the court said: "The superior court * * has jurisdiction of actions brought by persons holding invalid tax deeds to recover from the owners of the land the amount due, and to foreclose his lien," and we are inclined to adhere to the ruling in that case.

The act of February 15, 1871, supra, confers original concurrent jurisdiction upon the superior court with the circuit court in this class of cases. The act of December 21 1872, supra, providing that the holder of a tax deed may commence a suit in the circuit court of the county where such lands lie to quiet his title, we think, does not abrogate or destroy the former act. Laws pari materia must be construed with reference to each other, and if, by fair interpretation, force can be given to each so that both may stand, they should be upheld by the courts. In our opinion the clause in the statute last enacted, naming or expressing that suit may be brought in the circuit court, does not...