Cowan Tent No. 61 v. Treesh

• Decision Date: 30 June 1922
• Docket Number: No. 11265.,11265.
• Parties: COWAN TENT NO. 61 et al. v. TREESH.
• Court: Indiana Appellate Court

136 N.E. 93

COWAN TENT NO. 61 et al.

v.TREESH.^*

No. 11265.

Appellate Court of Indiana.

June 30, 1922.

Appeal from Circuit Court, De Kalb County; Walter D. Stump, Special Judge.

Action by Charles P. Treesh against Cowan Tent No. 61 and others. Decree for plaintiff, and named defendant appeals. Reversed, with directions.

W. W. Sharpless and Henry C. Springer, both of Garrett, for appellant.

Mountz & Brinkerhoff, of Garrett, for appellee.

McMAHAN, J.

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 in substance are as follows:

Francis E. Bradley became the owner of the real estate in controversy November 4, 1913, by deed of conveyance executed by Oliver Haag and his wife, Clara Haag. The consideration paid by Bradley for said real estate was $1,030, $600 of which was paid by the assumption of a certain mortgage on said real estate dated October 31, 1913, and held by the De Kalb County Building & Loan Association. November 4, 1913, Bradley and wife executed a second mortgage on said real estate to Oliver and Clara Haag to secure a payment of $400. On June 9, 1916, appellant secured a judgment in the De Kalb circuit court against said Francis E. Bradley in the sum of $165 and costs. This judgment was founded on a promissory note, and has never been paid or satisfied. On November 4, 1916, the mortgage to Haag and Haag was foreclosed in the De Kalb circuit court, and judgment rendered against Francis E. Bradley for $553.26 and costs, and said real estate ordered sold. Said real estate was sold at sheriff's sale pursuant to said order of sale to said Haag and Haag December 16, 1916, for the sum of $553.26. There was at that time a balance of $496 due and owing the De Kalb County Building & Loan Association on account of its said mortgage, which sum was thereafter paid by said Haag and Haag. No redemption was made from said sale, and the sheriff of said county executed and delivered his deed for said real estate to said Haag and Haag December 17, 1917. Francis E. Bradley made no claim for exemption as to any proceeds that might accrue from such sale. Neither appellant nor said Loan Association was made a party defendant in the said foreclosure proceedings. The Haags conveyed said real estate to appellee in March, 1918, in consideration of the sum of $1,000. Francis E. Bradley was a resident householder of De Kalb county during the period between November 4, 1913, and December 16, 1916, and during that period did not at any time own any property, either within or without this state, other than said real estate. The fair market value of said real estate during said period was $1,000. At the time when the complaint herein was filed, to wit, February 22, 1921, the fair market value of said real estate was $3,000 by reason of improvements made thereon by appellee 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. A 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. Appellant does not challenge the correctness of the first conclusion of law to the effect that appellee is the owner of the real estate, but it does insist (1) that its judgment is a lien upon the real estate in controversy, and that it is liable to sale on execution to satisfy said judgment, and (2) that the right of exemption is a personal right, that must be claimed by the judgment debtor for his benefit, and does not inure to the benefit of appellee, a grantee of the purchaser at the sheriff's sale.

[1] Appellee, in combating the contentions of appellant, says: (1) That property exempt from execution is unaffected by execution liens; (2) that a purchaser of real estate from a judgment defendant, who could have claimed the same as exempt, may maintain an action to quiet title to such real estate; and (3) that appellee, through the sheriff's sale, acquired all the rights of the judgment debtor in the real estate in controversy.

In support of his first contention appellee cites Godman v. Smith, 17 Ind. 152;Taylor v. Duesterberg, 109 Ind. 165, 9 N. E. 907; and Barnard v. Brown, 112 Ind. 53, 13 N. E. 401. In the first case cited one Wade recovered judgment against Alderson, a householder owning property worth less than $300. Godman, as sheriff, levied upon a horse owned by Alderson as subject to execution for the payment of the judgment. Alderson having sold the horse to Smith, the latter brought an action against the sheriff to recover the horse. The only question before the court was whether property exempt from execution in the hands of the debtor, and which had been claimed by the debtor as exempt, was also exempt in the hands of a purchaser from the debtor The court there held that, after such debtor has had the property actually set off to him as exempt, it may be sold, “discharged of the lien of the execution,” and that, under such circumstances, it is not “subject to the lien of the execution.” In the course of the opinion it is said:

“Prima facie, the execution attaches to all the property owned by the debtor, at the date of its issue.”

The Taylor Case was an action to set aside and vacate a conveyance from Taylor to his wife, upon the theory that it was fraudulent as to the creditors of Taylor. The court, without deciding or intimating that the judgment was not, in any event, a lien upon real estate which the husband under the statute might have set off to him as exempt, simply held that:

“Even if Leroy S. Taylor had been the owner of the property in controversy, in his own right, since it appears that at the time the conveyance was made, his pecuniary condition, and the value of his property subject to execution, were such that his right of exemption protected the entire interest therein from sale, the deed should not have been declared fraudulent and set aside.”

This was supplemented by the statement that:

“What a debtor does with his property which is by law exempt from execution, is a matter in which his creditors can have no concern.”

The court, however, in deciding the case held that, since the property had been purchasedwith money belonging to Mrs. Taylor and her children by a former marriage, and the title having been taken in the name of her then husband without her knowledge or consent, her husband held the title in trust for them, saying:

“Creditors cannot invoke the aid of the law, to prevent a husband from restoring to his wife and her children that which in equity and good conscience he has no right to withhold.”

In Barnard v. Brown, supra, the several appellants recovered judgments against Brown before a justice of the peace, and caused transcripts of such judgments to be recorded in the office of the clerk of the circuit court. Brown owned certain real estate at the time said transcripts were recorded. He was a householder and the value of all the property owned by him was less than $600. Executions had been issued on said judgments before being recorded in the clerk's office, and Brown had made out a schedule of all his property, and claimed the same as exempt. He later conveyed the real estate by warranty deed to one Ullery for the sum of $315, after which Brown and Ullery began an action to quiet the title of the real estate so conveyed to Ullery. The court, in holding the complaint good as against a demurrer, said:

“Property exempt from execution is unaffected by execution liens, and may be sold or exchanged even while writs of execution are in the hands of the proper officer”-citing Godman v. Smith, supra, and Taylor v. Duesterberg, supra.

There is no question but what these cases correctly state the law, and they fully sustain the second contention of appellee. The same rule is announced in Dumbould v. Rowley, 113 Ind. 353, 15 N. E. 463;King v. Easton, 135 Ind. 353, 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- cited by appellee, to which might be added many other decisions of both the Supreme and this court.

Weaver v. Guyer, 59 Ind. 195,Parker v. Rodman, 84 Ind. 256, and Catterlin v. Armstrong, 101 Ind. 258, cited by appellee in support of his contention that he, through the sheriff's deed, acquired the right of Bradley to claim the real estate as exempt from execution are not in point and do not support that contention.

In Moss v. Jenkins, 146 Ind. 589, 45 N. E. 789, one Vestal recovered judgment on a contract against Alexander Castor before a justice of the peace. A transcript of this judgment, including the constable's return of “no property found,” was filed in the clerk's office, where it was recorded and docketed. Subsequently an execution was issued on the judgment to the sheriff. He levied upon certain real estate, and, after taking proper steps by giving notice, etc., sold it to appellant Moss for the amount of the judgment, and delivered to him a sheriff's certificate. Castor was the owner of this real estate when said transcript was filed in the clerk's office. He afterwards, but prior to said sheriff's sale sold it to one Craig, who paid the full value therefor and who subsequently, but prior to sheriff's sale, sold and conveyed it to appellees, who also paid full value therefor. Both of said deeds were properly recorded. Castor was a resident householder of the county wherein the land was situated, and on the day when said judgment was rendered, and ever since, had not owned property of the value of $600. Appellees there contended that, since Castor had less than $600 worth of property, neither the judgment nor the execution was a...