Caley v. Morgan

• Decision Date: 17 April 1888
• Docket Number: 14,025
• Citation: 16 N.E. 790,114 Ind. 350
• Parties: Caley v. Morgan
• Court: Indiana Supreme Court

16 N.E. 790

114 Ind. 350

Caley v. Morgan

No. 14,025

Supreme Court of Indiana

April 17, 1888

From the Huntington Circuit Court.

The judgment is affirmed, with costs.

B. F Ibach, J. G. Ibach and B. M. Cobb, for appellant.

J. B Kenner and J. I. Dille, for appellee.

OPINION

Niblack, J.

John W Caley, being in possession of a forty-acre tract of land in Huntington county of which he claimed to be the owner, brought this action against John Morgan, who asserted title to the same land, to have his title quieted. Morgan filed a cross-complaint stating the facts upon which he relied in support of his claim of title and demanding that his title be quieted.

The court heard the evidence and made a special finding of the facts, which may be briefly stated as follows:

That on the 25th day of September, 1872, one Canaan Ogle was the owner of a tract of land described in the complaint; that, on the 26th day of October, 1872, the said Ogle executed a mortgage on said tract of land to one Andrew Brandstrator to secure the payment of the sum of $ 600, payable six years and three months after said 25th day of September, 1872, which mortgage was duly recorded in the proper recorder's office; that, on the 7th day of September, 1876, Ogle, by warranty deed, conveyed the same tract of land to Thomas L. Lucas, which deed was also duly recorded; that, on the 30th day of October, 1876, Lucas conveyed the land to one Andrew J. Kimmel; that, on the ___ day of March, 1879, Kimmel reconveyed one undivided half of the land to Lucas, and the remaining one undivided half was by the same conveyance transferred to one Eli Jones; that, on the 27th day of May, 1879, Jones conveyed his interest in the land to Lucas; that, on the 15th day of April, 1876, Lucas, without a summons being issued against or served upon him, appeared in the Huntington Circuit Court and confessed judgment against himself for the sum of $ 917 in favor of one Milton Hendrix, for which amount that court rendered judgment accordingly; that such confession of judgment was made without filing with the court any affidavit that the amount named was due and owing, and that such confession was not made for the purpose of defrauding the creditors of the said Lucas; that, after said judgment was entered, Hendrix, the judgment plaintiff, by a power of attorney, constituted Lambden P. Milligan his attorney in fact to sell and assign such judgment to such person and upon such terms as he might see fit; that, on the 7th day of July, 1880, the said Milligan, as such attorney in fact, did sell, assign and transfer such judgment to John Morgan, the defendant; that the assignment to Morgan was written in the order-book below the record of said judgment, and was attested by the clerk of the court in which such record remained; that said power of attorney was never recorded in any record in the recorder's office of Huntington county; that, on the 30th day of December, 1878, one John J. Anson, acting as the administrator of the estate of Andrew Brandstrator, who had in the mean time died, commenced a suit in the Huntington Circuit Court against Ogle and Lucas to foreclose the mortgage executed by the former to Brandstrator; that, at the March term, 1879, of said court, a judgment for $ 836.30 and a decree of foreclosure of the mortgage were entered against Ogle and Lucas by default; that neither the plaintiff Caley nor the defendant Morgan was made a party to such foreclosure proceedings; that, on the 16th day of April, 1879, an order of sale was issued on the judgment and decree of foreclosure so entered against Ogle and Lucas, and placed in the hands of the sheriff of Huntington county, who duly advertised the land described in the mortgage, and sold the same, on the 16th day of May, 1879, to one David Z. Weaver for the sum of $ 200, which the latter paid to the sheriff, and for which he received a certificate of purchase in the usual form; that, on the 16th day of September, 1879, Lucas sold and conveyed the land thus bid off by Weaver to the plaintiff Caley, for the sum of $ 600; that Caley agreed to pay to Weaver the sum of $ 200, with interest, the amount represented by the sheriff's certificate of sale, and the taxes which had accrued on said land as a part of the purchase-money; that, on the 15th day of May, 1880, Caley paid to the clerk of the Huntington Circuit Court the sum of $ 223.30, the amount necessary to redeem, and for the purpose of redeeming, the land from the sheriff's sale to Weaver; that Caley went immediately into possession of the land under his deed from Lucas, and continued in such possession until the 15th day of April, 1885, during which time he received the rents and profits arising therefrom; that, on the 22d day of October, 1881, an execution, for the use of the defendant Morgan, was issued against Lucas on the judgment confessed by him in favor of Hendrix and assigned to Morgan as stated; that, by virtue of such execution, the sheriff of Huntington county levied on the land which had been conveyed by Lucas to Caley as above set forth, and advertised the same for sale on the 24th day of December, 1881, on which day he sold the land to the defendant Morgan, for the sum of $ 550, that being more than two-thirds of the appraised value thereof, and issued to him, the said Morgan, a certificate of such sale; that the plaintiff Caley had no actual knowledge of such levy and sale by the sheriff until five or six days after the sale was made, and that he commenced this action on the 5th day of October, 1882; that during the pendency of this suit, that is to say, on the 1st day of March, 1883, the sheriff of Huntington county conveyed the land in question to the defendant Morgan, in pursuance of the latter's purchase of the same at sheriff's sale; that Caley had no actual knowledge that Morgan claimed to have any lien on the land in controversy in virtue of the Hendrix judgment against Lucas until several days after Morgan had become its purchaser as has been shown; that, on the 18th day of February, 1880, the land was sold for taxes for the years 1878 and 1879, and A. S. Purviance & Bro. became the purchasers, to whom a certificate of sale was duly issued; that Purviance & Bro. afterwards assigned this certificate to Caley; that, on the 24th day of February, 1882, the auditor of Huntington county executed to Caley a tax deed to the land in pursuance of the terms of such certificate; that, at the time of such tax sale, Lucas had not sufficient personal property out of which the taxes for which the land was sold could have been made; that the said sum of $ 223.30 paid in redemption of the land from the sheriff's sale, and the sum of $ 31.36 paid to A. S. Purviance & Bro. for the tax certificate, constituted the...