Dowell v. Lahr

• Decision Date: 17 September 1884
• Docket Number: 9057
• Citation: 97 Ind. 146
• Parties: Dowell v. Lahr et al
• Court: Indiana Supreme Court

97 Ind. 146

Dowell v. Lahr et al

No. 9057

Supreme Court of Indiana

September 17, 1884

From the Whitley Circuit Court.

The judgment is affirmed, with costs.

J. S Frazer, W. D. Frazer, T. R. Marshall, W. F. McNagny and C. W Jones, for appellant.

J. S Collins, J. W. Adair and R. S. Taylor, for appellees.

OPINION

Howk J.

On the 29th day of May, 1878, the appellant, Isaac Dowell, as sole plaintiff, commenced this suit against the appellees, John Lahr, Christian Kourt and Nicholas Mosher, as defendants. In his complaint, the appellant, Dowell, alleged, in substance, that the appellee Mosher, on the 6th day of March, 1861, executed a mortgage conveying to the appellant two tracts of land, particularly described, in Whitley county, Indiana, to secure the payment of three promissory notes, dated March 5th, 1861, each calling for the sum of $ 255.33, each and all executed by the appellee Mosher, and payable to the appellant on the first days of June, in the years 1862, 1863 and 1864, respectively. Copies of such notes and of such mortgage were filed with and made parts of the complaint. It was alleged that the notes were long since due and remained wholly unpaid; that the mortgage was duly and legally recorded in the recorder's office of Whitley county; that the notes described in the mortgage had been lost or mislaid, and the appellant could not find them although he had repeatedly made due and diligent search therefor; that the appellees Kourt and Lahr were claiming to have and hold some title to or interest in the mortgaged real estate, but that if they had any such title thereto, or interest therein, the same was subject and subsequent to the appellant's mortgage thereon. Judgment was demanded for $ 2,000, for the foreclosure of the mortgage, the sale of the mortgaged premises, etc.

The appellee Mosher, who executed the notes and mortgage in suit, was notified by publication of the pendency of the action, and made default.

The other appellees, Kourt and Lahr, appeared by counsel, and answers, cross complaints, replies and demurrers were filed from time to time, until finally, on the 28th day of April, 1880, they recovered judgment against the appellant, Dowell, for their costs.

The case is before us on the pleadings. The appellees Kourt and Lahr severed in their defence. Each of them claimed to be the owner of a separate parcel of the mortgaged real estate, but both derived their respective titles in the same manner and from the same common source. Each of them filed a cross complaint, alleging therein substantially the same facts, and each demanded, inter alia, that his title to his part of the mortgaged real estate might be settled and quieted in him as against the mortgage now in suit, and that the appellant, Dowell, might be enjoined from prosecuting any suit for the foreclosure of such mortgage. The facts relied upon by the appellees Kourt and Lahr, in their respective cross complaints for the relief therein demanded, were substantially as follows:

The mortgage sued upon was executed by the appellee Mosher "to secure the payment, when they shall become due, of four promissory notes, dated March 5th, 1860, given by said Nicholas Mosher to said Isaac Dowell, to wit, one note calling for five hundred dollars, with use, due June 1st, 1861," and the other three notes described in such mortgage are the three notes sued upon by the appellant, Dowell, in this action. Before the note for $ 500 became due, the payee and mortgagee, Isaac Dowell, the plaintiff in this suit, sold and assigned the same by his written endorsement to one Adam Y. Hooper, who, in like manner, sold and assigned the same to one Andrew Shorb. Afterwards, on the 19th day of April, 1862, the said note for $ 500 being then due and wholly unpaid, the said Andrew Shorb, as the assignee and holder thereof, commenced suit thereon and on the mortgage now in suit, in the court of common pleas of Whitley county, against the maker of such note and mortgagor, Nicholas Mosher, and the payee and mortgagee, Isaac Dowell, the plaintiff in this action, and prayed judgment for the amount due on such note and for the foreclosure of such mortgage. A summons issued for the defendants in such suit was served on the appellant, Dowell, by reading, on the 3d day of May, 1862, by the then sheriff of Whitley county, and the defendant Nicholas Mosher was duly notified by publication of the pendency of the suit. Afterwards, at the June term, 1862, of said court of common pleas of Whitley county, the appellant, Dowell, appeared in such suit and was ruled to answer the complaint of Andrew Shorb, and on the fourth day of such term, to wit, on June 19th, 1862, having failed to answer in discharge of such rule, was then and there defaulted by such court for want of an answer; and the defendant Nicholas Mosher, failing to appear, was three times solemnly called but came not, and it having been found and adjudged by said court, in express terms, that said Mosher had been duly notified of the pendency of said cause, by publication, he, the said Mosher, was then and there defaulted by said court. Such suit was then and there submitted to said court of common pleas, and, after hearing the plaintiff's proofs therein, the court then and there found that there was due the plaintiff Andrew Shorb, on the note and mortgage then in suit, the sum of $ 568.50, without any relief from valuation laws; and it was then and there adjudged and decreed by such court that the plaintiff Shorb have and recover from the defendant Mosher the said sum of $ 568.50, that the mortgage be foreclosed and the mortgaged real estate be sold as other lands are sold on execution, without relief, etc., and that, upon such sale, the equity of redemption of the defendants Mosher and Dowell, in and to the mortgaged premises, should be forever barred and foreclosed.

On the 12th day of August, 1862, an order of sale was duly issued on such judgment, by virtue of which the sheriff of Whitley county duly advertised, offered, sold and conveyed, by deed dated November 17th, 1862, the said mortgaged real estate to the said Andrew Shorb in fee simple. This deed was duly recorded on the 22d day of November, 1862, in the recorder's office of Whitley county. Each of the appellees Lahr and Kourt claims title to his specific part of the mortgaged real estate, under the said sheriff's sale and deed to Andrew Shorb, by and through his conveyance thereof, on the 14th day of April, to the appellee Christian Kourt, for the sum of $ 1,425, who took immediate possession thereof and held the same until the 4th day of February, 1870, on which latter day the said Kourt and his wife sold and conveyed sixty-five acres of such real estate, being all of it except about ten acres, to one Margaret Fullmer, and by certain conveyances afterwards made, the title to the sixty-five acres so conveyed to said Margaret Fullmer had become and was legally vested in the appellee John Lahr, who became and has since remained the husband of said Margaret Fullmer.

We need not state, more fully than we have, the facts relied upon by the appellees Lahr and Kourt in their respective cross complaints. If the judgment which the said Andrew Shorb, by the consideration of the court of common pleas of Whitley county, at its June term, 1862, recovered against the said Nicholas Mosher and Isaac Dowell, for the amount due on the first mortgage note of $ 500, and for the foreclosure of the mortgage then and now in suit, and for the sale of the mortgaged real estate, was a legal and valid judgment, or even if erroneous, was not absolutely void; in either event, we think that the appellees would hold such real estate freed and discharged from the lien of such mortgage, and that, as against them, it could not be foreclosed. It was alleged by the appellant, however, in his answers to the cross complaints of Lahr and Kourt respectively, that Shorb's judgment for the foreclosure of the mortgage, then and now in suit, and all the proceedings had thereunder, as stated in such cross...