Goodell v. Starr

• Decision Date: 07 February 1891
• Parties: Goodell et al. v. Starr et al.
• Court: Indiana Supreme Court

127 Ind. 198

26 N.E. 793

Goodell et al.

v.Starr et al.

Supreme Court of Indiana.

Feb. 7, 1891.

Appeal from circuit court, Porter county; E. C. Field, Judge.

Wm. Johnston and Winslow & Varnum, for appellants. W. E. Pinney and A. D. Bartholomew, for appellees.

McBRIDE, J.

Appellants brought this suit to recover possession of 560 acres of land in Porter county, and to quiet their title thereto. April 3, 1867, one Lazarus Silverman obtained a decree of the Porter circuit court foreclosing a mortgage on the land in question. The sheriff of Porter county sold the land under this decree on the 7th day of June, 1867, and Silverman became the purchaser, paying $7,000 therefor. June 8, 1868, he received a sheriff's deed, and immediately entered into possession. The appellees are in possession, claiming under Silverman, and the possession of Silverman, and those claiming under him, has been continuous from said 8th day of June, 1867, to the time of the commencement of this suit. The mortgage which Silverman foreclosed was executed by one John W. Hughes, January 3, 1866, to one Rodney Whipple. Whipple assigned it to Silverman on the 5th day of January, 1866, and it was duly recorded January 11, 1866. Hughes, the mortgagor, was the owner of the land when the mortgage was made, but on the 1st day of August, 1866, with his wife, executed a warranty deed for it to one Jacob S. Goodell. Goodell's deed was recorded February 13, 1867, but he never entered into possession of the land, and Hughes remained in possession thereof until the expiration of the time for redemption from said sale, when he yielded possession to Silverman. In the suit to foreclose the mortgage, Hughes and wife, Goodell and wife, and some others were named as defendants, but no process of any kind was ever served upon Goodell or his wife prior to the rendition of said decree of foreclosure, June 7, 1867, and no decree was then rendered as against Goodell and wife. The case was as to them continued from time to time, until May 7, 1869, when, on an affidavit filed, publication was ordered made as to them as nonresident defendants. September 21, 1869, proof of publication having been made, Goodell and wife were defaulted, and a decree was rendered foreclosing the mortgage as against them. No action seems ever to have been taken under the decree of September 21, 1869. The appellants here are the heirs of Jacob S. Goodell, who died about six years before the commencement of this suit. This suit was commenced January 3, 1887. With other pleadings, the appellees filed a cross-complaint, in which they sought the benefit of the law for the relief of occupying claimants. They also filed a cross-complaint, asking to have their title quieted. Counsel for appellants have filed a very earnest and well-written brief, but the questions discussed by them cannot be considered by this court. Their argument is in the main addressed to the proposition that the affidavit upon which publication was ordered in May, 1869, was not sufficient to justify the order for publication; that as a consequence the judgment recovered against Goodell, September 21, 1867, was void for the reason that the court did not acquire jurisdiction by such defective notice; and that before the commencement of this suit the statute of limitations had barred any action on the original note and mortgage, so that they cannot now form the basis of any claim on the part of appellees. As appellees are in possession under a sheriff's sale made more than two years before the rendition of the decree of foreclosure of September 21, 1869, it is apparent that it is altogether immaterial whether the latter judgment is void or not. In view, however, of the earnestness and evident sincerity with which appellants have discussed this question, we will say, in passing, that the cases of Fontaine v. Houston, 58 Ind. 316;Brenner v. Quick, 88 Ind. 546; and Vizzard v. Taylor, 97 Ind. 90,-do not state the rule recognized by this court relative to judgments or decrees rendered on service of notice by publication. The cases of Quarl v. Abbett, 102 Ind. 233, 1 N. E. Rep. 476; Field v. Malone, 102 Ind. 251, 1 N. E. Rep. 507; Pickering v. State, 106 Ind. 228, 6 N. E. Rep. 611; Kleyla v. Haskett, 112 Ind. 515, 14 N. E. Rep. 387; Essig v. Lower, 120 Ind. 239, 21 N. E. Rep. 1090; and many others decided since the case of Quarl v. Abbett, supra,-lay down that which we regard as the correct rule on that subject. When notice is given by publication, the judgment of the court, acting upon such notice, that the publication and the affidavit upon which it is based are sufficient to give it jurisdiction, is conclusive upon all the parties as against a collateral attack.

As heretofore said, appellees hold under Silverman, whose title vested on the foreclosure sale of June 7, 1867. The ancestor of appellants was not before the court when that decree was rendered, and it does not purport to bind him. The foreclosure at that time was...