Chase v. Van Meter

• Decision Date: 18 December 1894
• Docket Number: 16,876
• Citation: 39 N.E. 455,140 Ind. 321
• Parties: Chase et al. v. Van Meter
• Court: Indiana Supreme Court

39 N.E. 455

140 Ind. 321

Chase et al. v. Van Meter

No. 16,876

Supreme Court of Indiana

December 18, 1894

Petition for a Rehearing Overruled Feb. 19, 1895.

From the Fountain Circuit Court.

The judgment is reversed with directions to restate its conclusions of law, and render judgment for the defendant Ella V. Chase, in accordance with this opinion.

C. M McCabe, for appellants.

J. A Lindley, V. E. Livengood and A. Marshall, for appellee.

Dailey, J. McCabe, J., took no part in this opinion.

OPINION

Dailey, J.

This was a suit by the appellee as holder of a specific lien upon certain real estate in virtue of a certificate of purchase obtained at an execution sale made under a judgment owned by the appellee against the appellant, as holder of a certificate of purchase obtained under a senior decree of foreclosure against the same real estate, to have said decree declared formally paid and satisfied, and to enjoin the sheriff, the defendant Simmerman, from executing a sheriff's deed thereon.

There are four assignments of error, but the meritorious and only question to be determined by this court is that presented by the third assignment, which is: "The court erred in the conclusion of law stated upon the finding of facts."

The first and second specifications challenge the sufficiency of the complaint, but the questions made thereby are waived by the appellant. The cause is presented to this court solely upon the special findings of fact returned by the court and its conclusions of law stated thereon. The facts found by the trial court and presented here, undisputed, show that on the 29th day of August, 1884, Henry C. Wilkins and Catharine E. Wilkins, his wife, executed a mortgage to one Robert J. Jones on the real estate described in the complaint, for $ 500, and that it was duly assigned and transferred to the appellant on the 24th day of November, 1885; that said Wilkins and wife also executed a mortgage on said tract to Levi Woody on the 31st of May, 1882, to indemnify him against loss by reason of his being surety on two promissory notes executed by said Wilkins for $ 1,200 to James Bodine; that the payee, on May 6, 1885, transferred and assigned said notes to Charles M. McCabe, who thereafter recovered judgment thereon against said Woody for $ 1,417.19 in an action in the Fountain Circuit Court, at the September term, 1885; that said Woody, after the judgment was rendered, and during said term of court, assigned and transferred said indemnity mortgage to said McCabe, who thereafter assigned the same, together with said judgment, to appellant, Chase; that Henry C. Wilkins was the owner in fee of the real estate described in the complaint on the 15th day of April, 1882, and continued to be such owner until the 2d day of March, 1885, subject to the mortgages heretofore mentioned, and that said Catharine was his wife during all of said period, and was such at the time of the assignee's sale and the recovery of the judgment and decree of foreclosure hereinafter mentioned; that on March 2d, 1885, before appellant became the owner of said mortgages, Henry C. Wilkins, pursuant to chapter 18 of the Revised Statutes of 1881, duly executed a deed of assignment of all his property, real and personal, including the real estate described in the complaint, to John F. Redenbaugh, for the benefit of all the creditors of said Wilkins, and that his wife did not join therein; that on the 2d day of April, 1885, after said Redenbaugh had accepted and qualified to discharge the duties of said trust, he, as such assignee, petitioned the Fountain Circuit Court, alleging the existence of said mortgage liens, and obtained an order to sell said real estate at private sale for not less than the full appraised value, and apply the proceeds in payment and satisfaction of said liens; that the appraised value of said real estate was $ 3,000; that after ten months of unsuccessful effort to sell the same under said order, the assignee proceeded, without further order of the court, under the general authority conferred upon assignees under the assignment laws of the State, to advertise and offer said tract for sale at public auction to the highest bidder for one-third of purchase-money cash, and the balance in two equal payments in three and six months respectively, deferred payments to be secured by notes with approved surety, 8 per cent. interest from date, without relief from valuation laws.

No mention was made in the advertisement of sale that the real estate would be sold free from incumbrances, or that the purchase-money would be applied to the payment and discharge of the mortgage liens thereon. At the sale so advertised, said Ella V. Chase bid the sum of $ 100, and being the only bidder, and having complied with her said bid according to the terms of the sale, as advertised, said assignee issued to her a certificate of purchase of said real estate, which she thereafter assigned to Charles M. McCabe, who received the assignee's deed thereon; that said mortgage debt, at the time of such sale, was wholly unpaid and unsatisfied; that no part of the money derived from said sale was ever applied to the payment of any part of said debt or decree, nor to the payment of any other incumbrance upon said real estate, but was exhausted in the payment of legitimate expenses connected with the management of said trust; that said mortgage debt and decree of foreclosure remained wholly unpaid and unsatisfied at the time of the sheriff's sale under the decree of foreclosure, unless the purchase of the real estate at the assignee's sale aforesaid, by the assignee of the mortgages, operated as a merger and satisfaction of the mortgages so far as they affected the real estate in question; that said real estate was sold by said assignee to said Chase, on the 15th day of May, 1886, three days before the rendition of the judgment and decree of foreclosure aforesaid; that said certificate of purchase was assigned to said McCabe on the 18th day of May, 1886, the day on which said judgment and decree were rendered; that on said day the assignee reported said sale to the court, and showed that the purchaser was desirous of paying the purchase-money in cash and taking a deed for said real estate, and further showing that the certificate of purchase had been assigned to said McCabe, and asking that said sale be approved and confirmed; that he be authorized to receive said purchase-money and execute a deed of conveyance for said real estate to said McCabe, which deed was executed and approved by the court; that on the 17th day of November, 1887, said McCabe, by quitclaim deed, for the consideration of $ 2,500, conveyed said real estate to Ella A. Myers, and took from her a mortgage thereon to secure the unpaid part of the purchase-money; that afterwards, on the 23d day of May, 1889, said Myers deeded said real estate back to said McCabe; that on the 31st day of January, 1890, the said McCabe, for the consideration as expressed, of $ 1,600, conveyed a part of said real estate to John C. Myers, Sr., husband of Ella A. Myers; that on the 13th day of May, 1889, the plaintiff, in an action by him in the Fountain Circuit Court, against Ella A. Myers, recovered a judgment against defendant for $ 1,650; that afterwards plaintiff commenced an action in said court against said Ella and John Myers to set aside said conveyance on the ground that it was made to cheat, hinder and delay the creditors of said Ella, and to subject said real estate to the payment of plaintiff's said judgment; that in said action the plaintiff, on the 12th day of February, 1891, recovered a judgment and decree setting aside said conveyance and declaring it void, and ordering and decreeing said realty subject to execution for the payment of said judgment and costs; that on the 24th day of February, 1891, said Chase caused a certified copy of said judgment and decree of foreclosure to be issued to the sheriff of said county, who thereupon and by virtue of said writ advertised said real estate to be sold on the 21st day of March, 1891, and in pursuance thereof did, on said day, sell the same to said Chase, and executed to her a certificate of purchase therefor; that on the 12th day of February, 1891, the plaintiff caused an execution to be issued from the Fountain Circuit Court upon his said judgment, which was duly levied upon said real estate on the 9th day of April, 1891, and said real estate was advertised for sale and sold on the 2d day of May, 1891, for $ 1,100 to the plaintiff, who received a certificate of purchase therefor, which he now holds and owns. The court finds that said McCabe advanced to said Chase, the money that was used by her in buying the real estate at the assignee's sale; that she assigned the certificate of purchase to said McCabe to secure the payment of the sum so advanced, with the agreement that it was to secure him in the amount of money advanced, and to keep the mortgage liens alive, and to prevent a merger, and said certificate was finally, by consent of said Chase, used by said McCabe, and accepted by him in satisfaction of the claim for money advanced as aforesaid; that the other part of said real estate was conveyed by quitclaim deed to Ella A. Myers by said McCabe on the 31st day of January, 1890, for the consideration expressed in the deed of $ 400. Upon the foregoing facts the court stated the following conclusions of law:

1st. That the fee-simple title to an undivided one-third of the real estate described in the complaint, is in Catharine E Wilkins, wife of Henry C. Wilkins, and that as to this undivided one-third, the plaintiff has...