Currier v. Elliott

• Decision Date: 29 January 1895
• Docket Number: 16,257
• Parties: Currier et al. v. Elliott
• Court: Indiana Supreme Court

39 N.E. 554

141 Ind. 394

Currier et al. v. Elliott

No. 16,257

Supreme Court of Indiana

January 29, 1895

Petition for a Rehearing Overruled May 28, 1895.

From the Marion Superior Court.

Judgment affirmed, with costs.

W. A Ketcham, S. Claypool and A. B. Young, for appellants.

W. H H. Miller, F. Winter and J. B. Elam, for appellee.

OPINION

Jordan, J.

This action was commenced in the superior court of Marion county by the appellee on October 25, 1878, for the partition of his alleged interest in certain lands acquired by him by descent through his deceased wife, Martha Elliott. This is the third appeal of this case to this court. The court below sustained a demurrer to the complaint, as the same was originally filed, and from this decision an appeal was successfully prosecuted and the judgment was reversed. See Elliott v. Cale, 80 Ind. 285.

This court remanded the cause for further proceedings, and thereupon the appellee herein, plaintiff below, filed what was termed a supplemental complaint, wherein it was alleged, among other things, that Cale had, during the pendency of the appeal, conveyed all of the realty in question to Moodie Currier, and that the latter had made conveyances to other parties who were made defendants, and the plaintiff again demanded that one-third of the several parcels of real estate be set off to him and that an accounting of the rents and profits be had. Issues were subsequently joined by the several parties upon the complaint and the respective pleadings filed. The second trial resulted in a judgment against the appellee herein, and he again appealed to this court. See Elliott v. Cale, 113 Ind. 383, 14 N.E. 708, which resulted in a reversal, and the cause was again remanded to the trial court, with instructions to change its conclusions of law and make them in favor of the appellant and to adjust the rights of the parties as to the rents and improvements, etc., to order partition and to proceed in accordance with the opinion of this court.

In the opinion of the court in the appeal last mentioned the state of the pleadings and the facts especially found by the court are fully stated.

After the second reversal of the cause by this court the appellee filed a second supplemental complaint, setting up the facts that the two appellants, Currier and Maus, had continued in possession of the realty of which they were respectively in possession at the time of the former trial, and that appellee had by them been excluded and that they had received and appropriated to their own use the rents and profits, and the court was asked to make an additional special finding of the rents so received. The appellants, Currier and Maus, filed an additional paragraph of answer. In the second paragraph of each answer filed by Currier and Maus they each substantially alleged that the indebtedness upon which the judgments in favor of Kingan and the Amoskeag National Bank, these being two of the five judgments, in satisfaction of which the lands in controversy were sold, was contracted prior to the 24th day of August, 1875, at which date the act of the Legislature, pertaining to the vesting of the inchoate interest of the wife in the realty of her husband upon judicial sales, took effect. R. S. 1881, section 2508 (R. S. 1894, section 2669).

It was further alleged that in addition to the lands described in the complaint there was sold at the same time by the sheriff, on the executions issued upon these judgments, another parcel known as "part of lot 12, in square 66," which was bid off by defendant Cale in trust for the execution plaintiff; that this last mentioned lot was incumbered by a mortgage, which was prior to the lien of the judgments; that the mortgage had been subsequently foreclosed, the land sold thereunder for the debt, a deed executed to the purchaser, and that thereby the title, which had passed to Cale for the execution plaintiffs, had been defeated. The value of all the parcels that had been sold was alleged, and also that such value was less than the indebtedness contracted before August 24, 1875.

The appellee replied to this answer, alleging that the five judgments upon which the sheriff's sale on execution was made were rendered and made liens in the following order, to wit: That of the First National Bank of Lebanon, together with one in favor of the Amoskeag National Bank and Kingan, September 5, 1876, and the others in favor of Alfred and John C. S. Harrison and Fletcher & Sharpe, September 6, 1876, and that by reason of partial payments that had been made the total amount due on the judgments, rendered September 5, was $ 14,466.97.

The reply further alleged that the realty sold upon the executions on said judgments, including all the parcels described in the complaint and the part of lot 12 in square 66 and certain other small parcels, was sold in the order and for the amounts stated (which were set out at length), and that the entire proceeds of the sale amounted to $ 32,124.28, and that thereby all of the judgments were satisfied.

It was further averred that the part of lot 12, in square 66, which the answer alleged had been lost by foreclosure and sale upon the prior mortgage, was of the value of $ 50,000 at the time of its sale, and that the mortgage incumbrance thereon was much less than its value, and that it was lost by defendant's failure to redeem.

A trial was had upon the issues joined, and, upon request, the court made a special finding of the facts and stated its conclusions of law thereon. The finding of facts, briefly and in substance, is as follows:

1st. That Elliott was, on and before September 7, 1876, the owner of the real estate described, and also of parts of lot 7, in square 72, and lot 12, in square 66, in Indianapolis, Indiana.

2d. That on the 5th day of September, 1876, the following parties recovered judgments in the Superior Court of Marion county, Indiana, against appellee herein, Calvin A. Elliott et al., to wit: First National Bank of Lebanon, Indiana, $ 2,638.86 and costs; The Amoskeag National Bank, for $ 6,458.78 and costs; Thomas D. Kingan, for $ 10,166.66 and costs; and, on September 6, 1876, in the same court and against said Elliott, Alfred and John C. S. Harrison recovered a judgment for $ 3,031.16, and Fletcher & Sharpe recovered one for $ 12,815.97 and costs.

3d. August 29, 1876, Elliott made a voluntary assignment under the statute to John C. New, which deed of assignment included all of the real estate in controversy, and the said deed was filed in the recorder's office of Marion county, Indiana, September 7, 1876.

4th. At and prior to the rendition of these judgments Elliott had a wife, Martha Elliott, who was not a party to any of these actions, and whose inchoate interest in the lands was not directed to be sold, and that she did not join in the assignment to New, or in any way release her said interest.

5th. The real estate was levied on by the sheriff upon execution issued on these judgments and advertised for sale.

6th. New, the trustee, instituted an action to enjoin the sale upon the execution, but was defeated

7th. Writs of venditioni exponas were issued upon each of the judgments and the property sold, September 8, 1877, to Cale, as trustee for the execution plaintiffs.

8th. Martha Elliott, the wife, died September 20, 1877, leaving her husband surviving her.

9th. September 14, 1878, the time of redemption having expired, the sheriff executed a deed to Cale, as such trustee, for the real estate sold. Cale took possession of the same, which he continued to hold until he conveyed the land away.

10th. October 28, 1878, Elliott demanded to be admitted into possession as a tenant in common, and also demanded an accounting of the rents and partition, all of which was refused.

11th. On December 7, 1878, Cale conveyed the real estate to Currier, one of the appellants, who took and held possession until he sold.

12th. October 1, 1880, Currier conveyed to appellant Maus lots 51 and 52 in Blackford's subdivision, which Maus then took and has continued in possession, and he, Maus, had, at said time, actual notice of Elliott's claim to the interest in the property.

13th. Currier, since conveyance by Cale to him, has continued in possession of lots 1 and 4, Wright's addition.

14th. When Maus purchased of Currier, he executed a mortgage for $ 2,000, which is still of record.

15th. Such real estate was of the following value: Maus property, $ 5,500; the property in Elliott's re-subdivision, $ 1,600; lot 14, Wright's addition, $ 900; part of lot 7, square 72, $ 4,000; lot 12, square 66, $ 50,000.

16th. The total rental value of the property while it was held by Currier, was $ 2,985.71; he expended for taxes, repairs, etc., $ 1,912.75.

17th. The rental value of the Maus property, while held by him, was $ 2,683.33, and Maus expended in repairs and taxes, etc., $ 1,810.58.

18th. The indebtedness on the notes accrued and was contracted as follows: Kingan note July 6, 1875; Amoskeag National Bank, August 10, 1875. On the other notes in March and May, 1876. At the time of the sheriff's sale the amounts due on the judgments were as follows: National Bank of Lebanon, $ 2,985.79; the Amoskeag National Bank, $ 7,250.38; Kingan, $ 4,230.80; Harrison's, $ 3,388.76; Fletcher & Sharpe, $ 14,268.55. Total, $ 32,124.28.

The real estate was sold in the following order for the amounts stated:

Lot 14, Wright's Addition

$ 800 00

Part of lot 12, square 66

22,117 58

Maus property

6,500 00

Lot 1, Elliott's Re-Sub

350 00

Lot 2, Elliott's Re-Sub

290 00

Lot 3, Elliott's Re-Sub

280 00

Lot 4, Elliott's Re-Sub

280 00

Part of lot 7, square 72

1,500 00

The balance of the realty levied on.

6 75

Total proceeds of sale

$ 32,124 33

And...