Essig v. Lower
| Decision Date | 22 June 1889 |
| Docket Number | 13,782 |
| Citation | 21 N.E. 1090,120 Ind. 239 |
| Parties | Essig v. Lower et al |
| Court | Indiana Supreme Court |
From the Elkhart Circuit Court.
Judgment affirmed.
H. C Dodge, R. M. Johnson and E. G. Herr, for appellant.
H. D Wilson, W. J. Davis, J. H. Baker and F. E. Baker, for appellees.
Coffey J. Mitchell, J., took no part in this decision.
This action was brought by the appellant against the appellees, in the Elkhart Circuit Court, to set aside certain judgments and decrees set out in the complaint, and to be permitted to redeem from a certain mortgage lien upon the real estate described in the complaint. At the request of the parties, the court made a special finding of the facts in the cause, and stated its conclusions of law thereon.
From the facts found by the court, it appears that in the year 1867 Michael B. Snider was the owner in fee, and in the possession, of lots 200, 201, 202, 203, 204, and 205 in the original plat of the city of Goshen, Indiana, and on the 12th day of April of that year mortgaged the same to the appellant to secure the sum of $ 2,999, which mortgage was duly recorded.
At the September term, 1869, of the Elkhart Common Pleas Court, the appellant recovered judgment on said debt against the said Snider for the sum of $ 3,614.76, and a foreclosure of said mortgage, which is yet unpaid.
On the 14th day of August, 1852, Gottlieb Schaubel, who was then the owner of the same, mortgaged said lots 203, 204, and 205 to Henry Pierce, to secure three promissory notes, one of which was payable to Mary McNaughten, which mortgage was duly recorded.
At the March term, 1870, of the Elkhart Circuit Court, Henry P. McNaughten and -- Jackson recovered a judgment on the note so executed to the said Mary McNaughten for the sum of $ 237, and a decree foreclosing the mortgage given to secure the same, to which decree of foreclosure the appellant was a party defendant.
At the time of said foreclosure the appellant was a nonresident of the State of Indiana, and was notified of the pendency of said suit by publication only, which publication was issued upon the following affidavit: "Christian Conrad, being duly sworn, upon his oath, says that the plaintiffs in the above entitled cause of action have a good cause of action against the defendants for a foreclosure of mortgage, and that Elias Essig (and others, naming them), are, as he verily believes, non-residents of the State of Indiana," which affidavit was properly entitled.
At the time of the rendition of this judgment and decree, the defendants in this case, Christian Conrad and Daniel Lower, were junior encumbrancers on said lots 203, 204, and 205, and as such, on the 19th day of May, 1870, redeemed from the same and took an assignment thereof. Said lots were sold on the 11th day of June, 1870, by the sheriff of Elkhart county on said decree, and bid in by the said Conrad and Lower, and they subsequently procured a sheriff's deed therefor.
On the 16th day of October, 1858, the said Gottlieb Schaubel, still being the owner of said lots 202, 203, 204, and 205, mortgaged the same to Scott, Sell & Co., who assigned said mortgage to Elias Purl.
On the 28th day of September, 1869, said Purl recovered judgment on said mortgage in the Elkhart Circuit Court for the sum of $ 548, and a decree foreclosing the same, but the appellant was not a party thereto. Said lots 202 and 203 were sold on a certified copy of said decree, and bid in by Matthew Osborn for $ 608.93.
Said Gottlieb Schaubel also mortgaged said lots 202, 203, 204, and 205 on the 24th day of January, 1859, to said Scott, Sell & Co. to secure $ 500, and they assigned the same to said Elias Purl, who recovered a judgment thereon in the Elkhart Circuit Court on the 28th day of September, 1859, for $ 133.19, to which proceeding the appellant was not a party. On a certified copy of said decree the said Osborn bid in said lots 204 and 205 for the sum of $ 183.
On the 26th day of November, 1869, said Osborn sold said lots to Elias Purl, and on the 26th day of January, 1870, said Purl sold said lots 202, 203, 204, and 205 to the appellees, Christian Conrad and Daniel Lower, who took possession under their deed.
On the 13th day of January, 1865, Michael B. Snider, being the owner of the undivided one-half of said lots 200 and 201, mortgaged the same to Frank Layman, who assigned said mortgage to James McReynolds. In the year 1874 said McReynolds foreclosed said mortgage in the Elkhart Circuit Court, bid in said lots on a certified copy of said decree, took a certificate of purchase therefor, and assigned the same to the said Christian Conrad and Daniel Lower. The appellant was not a party to this foreclosure.
At the March term, 1870, of the Elkhart Circuit Court, the appellees, Christian Conrad and Daniel Lower, brought suit therein against the appellant and others to quiet their title to said lots 200, 201, 202, 203, 204, and 205, alleging in their complaint that they were the owners in fee of said lots, and that the defendants in said action claimed some interest in or title to said premises by reason of junior encumbrances having been put upon the same since the execution of the mortgages by and through which the said plaintiffs claimed title; that the claim of said title or interest so made by the defendants greatly damaged plaintiffs, rendered their title and right of possession insecure, and materially decreased the value of said premises. Prayer, that said defendants be summoned to appear and show cause, if any they had, why all their rights, title, and interest in and to said lands, if any existed, should not be forever barred and foreclosed, and the said encumbrances removed from said land, and for all proper relief.
The appellant at the time of the commencement of said suit was a non-resident of the State of Indiana, and was notified of the pendency of said suit by publication, which notice of non-residence was issued upon the following affidavit, to wit:
"Charles B. Alderman, being duly sworn upon his oath, says that the plaintiffs in the above entitled cause of action, have a good cause of action against the defendants for the removal of encumbrances, and for equitable relief, and that said defendants, Elias Essig (and others, naming them), are, as he verily believes, non-residents of the State of Indiana."
The affidavit was properly entitled, and subscribed and sworn to.
Upon proper proof of publication, the Elkhart Circuit Court assumed jurisdiction of said cause, and the appellant failing to appear was defaulted; and such other proceedings were had in said cause as that said court entered a decree quieting title to said lots as against the appellant, which decree still remains in force.
On the 31st day of January, 1871, Christian Conrad and Daniel Lower conveyed said property to Emanuel Smiley and David Conrad, and put them in possession. In July, 1876, said Smiley and Conrad conveyed said property to Peter Conrad, and put him in possession. In the year 1878 the said Peter Conrad conveyed said property to the present owners, appellees herein. This action was commenced on the 23d day of August, 1881.
In the year 1876, and succeeding years, the appellees Kolb & Gross and Hattel & Hattel, in good faith, erected extensive and costly shops and ware-rooms on lots 201 and 204, at a total cost to them of $ 19,300.
The court stated as conclusions of law, from the foregoing facts, that by the decree of foreclosure in the action for the foreclosure of the McNaughten mortgage, the equity of redemption of the plaintiff in lots 203, 204, and 205 was foreclosed, and that by the decree in the action brought by Conrad to quiet title, the plaintiff's equity of redemption was foreclosed and the lien of his mortgage was removed from lots 200, 201, 202, 203, 204, and 205, and the title of the defendants was quieted, as against the plaintiff, in and to all of said lots, and found that the plaintiff was not entitled to the relief sought by him in this action. The court thereupon rendered judgment against the appellant for costs.
He assigns as error: 1st. That the court erred in its...
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