Daugherty v. Deardorf
| Decision Date | 06 October 1886 |
| Docket Number | 11,440 |
| Citation | 8 N.E. 296,107 Ind. 527 |
| Parties | Daugherty v. Deardorf |
| Court | Indiana Supreme Court |
From the Fulton Circuit Court.
Judgment reversed.
S Keith, for appellant.
I Conner, M. L. Essick and O. F. Montgomery, for appellee.
The appellee was the widow of Andrew J. Daugherty, who died the owner of the land in controversy, and under our statute she would have inherited all of the real estate of her deceased husband if he had left surviving him no child and no father or mother. R. S. 1881, section 2490. But in order to entitle her to recover in an action prosecuted by her for the possession of land, upon the theory that she was entitled to it as the widow of her husband, it was incumbent upon her to prove that her husband left no father or mother and no children surviving him. This conclusion results from the old and familiar rule that a plaintiff in ejectment must recover on the strength of his own title. It was, therefore, error for the court to instruct the jury, as it did, in effect, that she was entitled to recover if she proved that she was the widow of Andrew J. Daugherty, and that he died the owner of the land. If the case is to be regarded as resting on the theory that the appellee was entitled to all the land in virtue of her rights as widow, the judgment must be reversed; but it is contended that she had an additional title derived from another source, and if that title is sufficient to entitle her to recover, the error in the instruction was a harmless one. We concur in the view of counsel, that if the evidence clearly shows that the appellee did have another valid title, the error in the instruction can not reverse the judgment.
The title which the appellee seems to have really relied upon was one derived through a sheriff's sale, and if that title was a valid one the judgment should stand, notwithstanding the erroneous instruction to which we have referred. The sheriff's sale was made on a decree of foreclosure rendered in a suit brought by Eli R. Hernan in August, 1871, on a mortgage executed by Alexander Dane and Sophia Dane, in June, 1865. The mortgagors and Frisby Nye, but no others, were made parties to the suit. On the 18th day of February, 1867, Alexander and Sophia Dane conveyed the land to James M. and Andrew J. Daugherty, and in September, 1867, James M. conveyed to Andrew J. Daugherty. It thus appears that when the foreclosure suit was commenced Andrew J. Daugherty was the owner of the land by virtue of a deed executed in 1867. This decree was void, as to the owners of the land, for it is a well established rule that if the owners of the mortgaged premises are not made parties to the suit the decree is void as to them. Petry v. Ambrosher, 100 Ind. 510; Curtis v. Gooding, 99 Ind. 45; Marvin v. Taylor, 27 Ind. 73; Stevens v. Campbell, 21 Ind. 471; Burkham v. Beaver, 17 Ind. 367; Shaw v. Hoadley, 8 Blackf. 165; 2 Jones Mortg., sections 1290, 1292; Story Eq. Pl. 197; Pomeroy Remedies, sections 330, 336.
A recent writer, in discussing this question, says: "An owner or holder of the equity of redemption by purchase from the mortgagor or a mesne purchaser is as necessary a defendant to a foreclosure as a mortgagor...
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