City of Logansport v. McConnell
| Decision Date | 10 January 1890 |
| Docket Number | 13,665 |
| Citation | 23 N.E. 264,121 Ind. 416 |
| Parties | The City of Logansport v. McConnell et al |
| Court | Indiana Supreme Court |
From the Cass Circuit Court.
Judgment reversed.
J. C Nelson and Q. A. Myers, for appellant.
D. B McConnell, S. T. McConnell and H. C. Thornton, for appellees.
The complaint describes a parcel of real estate situated in the city of Logansport, and avers that the appellees are the owners of it in fee simple. The title is alleged to have been acquired by virtue of a sale made upon a school fund mortgage, and the complaint assumes to specifically set forth the proceedings. It is alleged that a sale was made upon a mortgage executed by the plaintiff and subsequently assumed by Hiram E. Leonard and wife; that the sale was made by the auditor; that for more than two years the mortgagor had failed to pay the principal of the mortgage debt, which was past due; that the interest for that period was unpaid; the sale was made by the auditor "after due and timely notice given as required by law;" the sale was made at public auction, at the door of the court-house in Cass county; that the plaintiffs were the highest bidders, and paid in full the amount of their bid, and the auditor executed to them a deed of conveyance. It is also alleged that the assumption of the mortgage by Leonard was part of the consideration agreed to be paid by him at the time he bought the real estate of the plaintiff; that the auditor agreed to continue the loan secured by the mortgage as a loan to Leonard, and that Leonard agreed to pay interest at the rate of eight per cent. per annum, which was an increase of one per centum over the rate paid by the plaintiffs.
The appellants are right in asserting that the specific averments in a complaint control a general statement, and that where the facts specifically stated as constituting title show that there is no title, the pleading is bad on demurrer. Reynolds v. Copeland, 71 Ind. 422; Keepfer v. Force, 86 Ind. 81; Ragsdale v. Mitchell, 97 Ind. 458; Spencer v. McGonagle, 107 Ind. 410, 8 N.E. 266; Wright v. McPheeters, 110 Ind. 519, 10 N.E. 634. But, while we agree with appellants as to the rule, we can not agree that they make a just application of it, for all the facts essential to create title are pleaded, although, perhaps, not with commendable precision. If it were conceded that the allegations are uncertain, it would by no means follow that the demurrer was improperly overruled, for the remedy for uncertainty, except in cases where the uncertainty is so manifest that no cause of action can be inferred, is by motion.
In addition to the allegations of which we have spoken the complaint contains the following: The city asserts a lien for taxes for the years 1877, 1878 and 1879, and for the latter year the real estate was twice assessed, once in the name of Hiram B. Leonard and once in the name of Harriet G. McConnell. These allegations, taken in connection with those which precede them, present the principal question in the case, which is, whether the sale on the school fund mortgage divests the property in the hands of the appellees of the tax liens?
There is some confusion in the decisions upon the subject of the effect upon tax liens of a sale on a school fund mortgage. Hamilton v. State, ex rel., 1 Ind. 128; Groom v. State, ex rel., 24 Ind. 255; Stockwell v. State, 101 Ind. 1; State v. Jones, 95 Ind. 175.
There is absent from the decided cases an important element which is here present, and that element is this: the parties who assert a right superior to that of the city are the mortgagors to whom the loan was made. This element is an influential one. It is quite clear that if the sale to Leonard had not been made, and payment of the mortgage assumed by him, the mortgagors could not have acquired a right superior to that of the city for taxes. We can not conceive any valid reason why the rule does not...
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