Connecticut Mut. Life Ins. Co. v. Stewart

• Decision Date: 29 May 1884
• Docket Number: 10,724
• Citation: 95 Ind. 588
• Parties: Connecticut Mutual Life Insurance Company v. Stewart et al
• Court: Indiana Supreme Court

95 Ind. 588

Connecticut Mutual Life Insurance Company v. Stewart et al

No. 10,724

Supreme Court of Indiana

May 29, 1884

Petition for a Rehearing Overruled June 21, 1884.

From the Superior Court of Marion County.

W. D Bynum, A. T. Beck, T. L. Sullivan and A. Q. Jones, for appellants.

J. S Tarkington and J. M. Judah, for appellees.

OPINION

Black, C.

The appellant's complaint against the appellees was held bad on demurrer, for want of sufficient facts.

The complaint showed, in substance, that, in 1875, one John R. Haynes, being the owner of certain real estate in Indianapolis, executed to the appellant a mortgage thereon, to secure the payment of a note for the sum of $ 2,000, payable in five years, and coupon notes for semi-annual instalments of interest on said sum, said notes being made by said Haynes to the appellant, and said mortgage being duly recorded in the month in which it was executed; that in 1876 and 1877, the appellees brought actions in the court below against said Haynes for the enforcement of mechanics' liens against said real estate; that said actions were consolidated and tried, and a decree was rendered in favor of the plaintiffs therein, and the sums found and adjudged in their favor were decreed to be liens on said real estate, which was ordered to be sold for the payment thereof; that the appellant was made a party defendant in some of said actions, and did not appear, but was defaulted, and it was decreed that the appellant had no right or interest in or to said real estate except such as was junior and subordinate to said liens of the appellees; that under said decree said real estate was sold by the sheriff on the 24th of November, 1877, and was purchased by the appellees for the amount due as principal, interest and costs, upon said decree, and a certificate of said sale was issued by the sheriff to the appellees; that on the 26th of October, 1878, the appellant filed in said court a complaint for the review of said decree, to which complaint the appellees demurred, and on the 23d of November, 1878, said demurrer was sustained by said court in special term, and judgment upon said demurrer was rendered; that the appellant appealed therefrom to said court in general term, where, on the 5th of May, 1879, the judgment in special term was reversed, and the cause was remanded to the special term, with direction to overrule said demurrer; that in special term said court overruled said demurrer, and said decree was adjudged void as to the appellant; that after the court in special term had sustained the demurrer to said complaint for review as aforesaid, which it did the next day before the last day of the year for redemption from the sale aforesaid, said Haynes being insolvent, the appellant paid to the clerk of said court the amount necessary to redeem from said sale; that at and before the making of said payment, the appellant notified the appellees that the appellant intended to prosecute its appeal in said suit for review, and filed with the clerk a written protest, reserving therein the right to sue for the recovery of the money so paid, if the judgment of the court in special term should be reversed; that the appellees received from the clerk the amount so paid, which they refused to repay, though payment had been demanded; that said mortgage was never paid, and the appellant foreclosed it and was in possession of said real estate under sale on foreclosure; that the appellees did not have any lien, when they procured their said decree, and the pretended liens claimed by them were void, because notice thereof had not been filed, as required by law, within sixty days from the time of furnishing materials and performing labor, and because the appellees had been fully paid for the materials and labor furnished by them. Prayer for the recovery of the amount so paid by the appellant to the clerk.

We think that the payment made by the appellant for the redemption of the real estate must be regarded as a voluntary payment. In Railroad Co. v. Comm'rs, 98...