Dawson v. Overmyer

• Citation: 40 N.E. 1065,141 Ind. 438
• Decision Date: 06 June 1895
• Docket Number: 17,436
• Parties: Dawson, Guardian, v. Overmyer, Administrator
• Court: Supreme Court of Indiana

40 N.E. 1065

141 Ind. 438

Dawson, Guardian, v. Overmyer, Administrator

No. 17,436

Supreme Court of Indiana

June 6, 1895

From the Fulton Circuit Court.

The judgment is reversed and the cause remanded, with instructions to sustain the demurrer to the complaint.

G. W Holman and R. C. Stephenson, for appellant.

I Conner, W. W. McMahan and J. Rowley, for appellee.

OPINION

McCabe, J.

It is assigned for error that the circuit court overruled a demurrer for want of sufficient facts, to the complaint, and that it erred in overruling appellant's motion for a new trial.

The appellee had a decree authorizing him to redeem.

The pertinent allegations of the complaint are as follows:

That appellee "shows to the court that he is the administrator of Elizabeth Rarrick, * * deceased, * * * who at her death, was the owner of certain promissory notes secured by mortgage on lands in Fulton county, Indiana (describing them); that on and before October 6, 1890, part of said sum had become due, and suit for the foreclosure of said mortgages was commenced by said Elizabeth in the Fulton Circuit Court, but before said suit was determined she died and the said B. F. Overmyer was appointed administrator of her estate, and he was substituted as plaintiff in said cause, and prosecuted the same to judgment and decree of foreclosure, both with respect to the amount due and that to become due, which sums, at the date of said decree, amounted to $ -----, and were of that value. * * * Plaintiff further says there were two notes of $ 50 each, with interest and attorney's fees, also secured by said mortgage on said real estate, and that the said Jonathan Dawson, as the guardian of said Edith E. Cowgill, purchased said notes, and, on the 4th day of February, 1892, recovered a judgment on said notes for $ 127.50, with a decree of foreclosure and order of sale of said real estate, which judgment and decree was rendered in the Fulton Circuit Court, and, on October 27, 1892, said Dawson caused all the said real estate to be sold at sheriff's sale by the sheriff of said county, as upon execution. And, at said sale, the said Dawson bid off the said land and received a certificate of purchase therefor, and at the expiration of one year from the date of said sale the said Dawson took a deed from said sheriff for said lands, as the guardian of the said Edith E. Cowgill, but without any order of this court for that purpose. * * At the commencement of the said action by the said Dawson, he was then and there the administrator upon the estate of the said Elizabeth Rarrick, but he says no judgment, decree or order was entered in said cause against him.

Plaintiff further says that he has instituted this action for the purpose of redeeming said real estate from said sale by the said Dawson, and to free said premises from the deed which the said Dawson holds for said land, and to subject said lands to the rights of the plaintiff as administrator of the said Elizabeth Rarrick's estate, as heretofore set out. He here brings into court and freely tenders the sum, $ 198.65, lawful money of the United States, in redemption of said land. Wherefore he prays the court for all proper relief."

This complaint is bad for a great many reasons.

For aught that appears therein the foreclosure decree mentioned in favor of appellee as the administrator of the estate of Elizabeth Rarrick may be senior or a prior lien to the lien of the appellant; if it is, the appellee does not have to redeem, but may take out a precept and sell the real estate to satisfy his decree regardless of the previous sale on a junior lien.

We gather from the complaint that the same mortgage secured the notes held by Elizabeth Rarrick amounting to $ 1,000 that secured the two notes held by appellant. And that the action by said Elizabeth began in her lifetime to foreclose the mortgage was...