Cowan Tent Co. No. 61 v. Treesh
| Decision Date | 25 January 1927 |
| Docket Number | No. 25351.,25351. |
| Citation | 155 N.E. 42,199 Ind. 24 |
| Parties | COWAN TENT CO. NO. 61 et al. v. TREESH. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from De Kalb Circuit Court; Walter D. Stump, Judge.
Suit by Charles P. Treesh against the Cowan Tent Company No. 61 and others. Judgment for plaintiff, and named defendant appeals. Transferred from appellate court under section 1357, Burns' 1926 (section 1394, Burns' 1914). Affirmed.
Superseding former opinion in 136 N. E. 93.
W. W. Sharpless and Henry C. Springer, both of Garrett, for appellant.
Mountz & Brinkerhoff, of Garrett, for appellee.
Complaint by appellee to quiet title to certain real estate in De Kalb county. From a decree in favor of appellee quieting his title, appellant appeals. The court found the facts specially, which are as follows:
On November 4, 1913, Francis E. Bradley acquired title by deed of conveyance, executed by Oliver Haag and his wife, Clara Haag, to the following described real estate in the county of De Kalb in the state of Indiana, to wit, lot No. 8 in block numbered 2 in Thomas south addition to the city of Garrett, for which the said Bradley paid the sum of $1,030 of which purchase price the sum of $600 was paid by the assumption of a certain mortgage on said premises dated October 31, 1913, said mortgage being held by the De Kalb County Building & Loan Association.
On said date, November 4, 1913, said Francis E. Bradley and his wife executed a second mortgage on the said real estate to Oliver Haag and his wife, Clara Haag, securing the sum of $400. That on the 9th day of June, 1916, the defendants herein, Cowan Tent No. 61, secured a judgment in the De Kalb circuit court on its promissory note against the said Francis E. Bradley for the sum of $165 and costs amounting to $6.35, which judgment has never been paid or satisfied and upon which judgment execution has never been issued, as appears from the records of the court. That on November 4, 1916, said mortgage to Oliver Haag and his wife, Clara Haag, was foreclosed in the De Kalb circuit court, judgment for $553,26 and costs being rendered therein against said Francis E. Bradley, and in said judgment said real estate was ordered sold to satisfy said judgment and costs.
That said real estate was sold at sheriff's sale on the 16th day of December, 1916, pursuant to said judgment and order of sale, to said Oliver Haag and his wife, Clara Haag, for the sum of $553.26, there being then existing a prior lien thereon of the said mortgage executed on October 31, 1913, to said De Kalb County Building & Loan Association, on which there was due on December 16, 1916, the sum of $496, which sum was thereafter paid by said Haag and wife, in addition to the amount of said judgment. The deed of the sheriff of De Kalb county for said premises was executed and delivered to said Oliver Haag and his wife, Clara Haag, on December 17, 1917, there having been no redemption from said sale of said real estate during the redemption period, and the said Francis E. Bradley made no claim for exemption prior or subsequent to the sale of said premises on December 16, 1916, for any proceeds that might accrue from such sale.
That the said defendant herein, Cowan Tent Lodge No. 61, and the De Kalb County Building & Loan Association were not made parties defendant in said proceedings to foreclose said mortgage held by said Oliver Haag and his wife, Clara Haag, on said real estate. That on March 20, 1918, said Oliver Haag and his wife, Clara Haag, conveyed said real estate to the plaintiff herein, Charles P. Treesh, for the consideration of $1,000, under which deed the plaintiff now claims the premises. That during the period between November 4, 1913, and December 16, 1916, the said Francis E. Bradley was a resident householder in the county of De Kalb and state of Indiana, and as such was entitled to an exemption of $600 as to judgments on contract, and that during said period the said Francis E. Bradley did not at any time own property other than said real estate either within or without the state of Indiana.
That the fair market value of said real estate during the period between November 4, 1913, and December 16, 1916, was $1,000, and the said Francis E. Bradley during said period owned no other property, real or personal, within or without the state of Indiana. That the fair market value of said real estate on February 22, 1921, the date of the filing of the complaint herein, was $3,000, by reason of improvements made thereon by Charles P. Treesh, the plaintiff, since December 17, 1917.
Upon these facts the court concluded as a matter of law: (1) That appellee was the owner of the real estate; (2) that appellant did not have a valid lien upon said real estate; and (3) that appellee was entitled to have his title to said real estate quieted as against appellant.
The decree having been rendered in accordance with the conclusions of law, appellant appeals and contends that the court erred in the second and third conclusions of law.
Section 22 of the Bill of Rights, being section 74, Burns' R. S. 1926, provides as follows: The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws exempting a reasonable amount of property from seizure for sale for the payment of any debt or liability hereafter contracted. Pursuant to that provision of the Constitution the Legislature provided for an exemption not exceeding in value $600 owned by any resident householder. Section 769, Burns' R. S. 1926. The Legislature also prescribed the manner in which this exemption could be secured by the debtor. Section 779, Burns' R. S. 1926.
[1] Property exempt from execution is unaffected by execution liens and may be sold or exchanged even while the writs of execution are in the hands of the proper officer. Freeman on Execution, § 197; Godman v. Smith, 17 Ind. 152;Taylor v. Duesterberg, 109 Ind. 165, 9 N. E. 907;Barnard v. Brown, 112 Ind. 53, 13 N. E. 401.
[2] The purchaser of real estate from a judgment defendant who could have claimed the same as exempt from sale or execution may maintain an action to quiet title to such real estate if commenced before it is sold under execution upon such judgment. Barnard v. Brown, supra; Dumbould v. Rowley, 113 Ind. 353, 15 N. E. 463;King v. Easton, 135 Ind. 356, 35 N. E. 181;Moss v. Jenkins, 146 Ind. 589, 45 N. E. 789;Kirk v. Macy, 53 Ind. App. 17, 101 N. E. 108;Citizens' Bank v. Harris, 149 Ind. 208, 48 N. E. 856.
[3] In Barnard v. Brown, supra, it was held that where one who has a right to the benefit of the exemption law owns property real and personal, the aggregate value of which is less than $600, and sells real estate, there being at the time judgments against him, he and his grantee may maintain a joint action to have the latter's title to such real estate quieted and freed from the apparent liens and incumbrances of such judgments and the property of the former owned at the time of such conveyance set off to him as exempt from execution, and no demand is necessary to the maintenance of such action. In case of a suit to quiet title against such liens the material inquiry is what was the value of the debtor's property at the time of the conveyance and not at the time of the commencement of the suit to quiet title.
[4] In Pomeroy v. Beach, 149 Ind. 511, 49 N. E. 370, it is stated that it has been uniformly held in this state that the constitutional provision relating to exemption and the statutes passed pursuant to the requirements thereof were based upon considerations of public policy and humanity, and it was not alone for the benefit of the debtor but his family also that such laws were enacted, and the same should be liberally construed in favor of the debtor....
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