Gray v. Gray

• Decision Date: 13 May 1931
• Docket Number: 25,284
• Citation: 176 N.E. 105,202 Ind. 485
• Parties: Gray v. Gray et al
• Court: Indiana Supreme Court

176 N.E. 105

202 Ind. 485

Gray v. Gray et al

No. 25,284

Supreme Court of Indiana

May 13, 1931

From Benton Circuit Court; Burton B. Berry, Special Judge.

Suit in partition by William C. Gray and others against James T Gray. The court found that the land was not susceptible of division and ordered a sale. Subsequently, the defendant filed a petition asserting liens against the land and asking that they be transferred to the proceeds of the sale and later filed a petition for the appointment of a receiver for the realty, which was denied. The defendant appealed.

Appeal dismissed.

John A Dunlap, for appellant.

Fraser & Isham and Charles M. Snyder, for appellees.

OPINION

Treanor, J.

The appellant was a defendant and the appellees plaintiffs in a partition suit in Benton Circuit Court, the land involved belonging to the appellant and certain of the appellees as cotenants. There was a finding that the land was not susceptible of division and that the appellant and his cotenants were each entitled to a one-fifth interest. The court thereupon entered a decree awarding an undivided one-fifth of the land to each heir and ordered the land sold. The foregoing acts of the trial court are not questioned by the appellant; and this appeal is predicated entirely upon the rulings of the trial court in subsequent proceedings.

Before the commissioner had completed the sale, the appellant filed a petition setting out that, subsequent to the order of sale but before the date of sale, he had filed in the office of the clerk of the Benton Circuit Court lis pendens notices of two suits pending in counties other than Benton which suits were being prosecuted by the appellant against three of his cotenants. In this petition, the appellant disclaims any purpose of "hindering and delaying the sale of land"; and prays the court to "transfer said lis pendens notices or liens as liens on said lands from said lands to the proceeds of said sale when collected by said commissioner. . . ." The court then ordered the commissioner to file a proceeding "to determine the validity of said alleged liens, and the amount or amounts due thereon, and take such other steps as may be necessary to clear the title of said real estate so that the sale may proceed." Thereupon, the appellant filed an application for the appointment of a receiver "to take charge of said property and to collect the rents accrued," etc. The appellees filed an answer to the appellant's application for a receiver, and the court ordered that a citation be issued to the appellant "to show cause why said liens should not be declared invalid, and be canceled, and to show any right he may have to obstruct the processes of the court." The commissioner filed a partial report, in which he set out that the sale could not be consummated on account of "certain alleged lis pendens liens" and prayed that the court cite the appellant to appear in court and show cause why "said lis pendens liens should not be canceled and removed from the records." The prayer was granted and the citation was issued. The appellant filed a motion "to strike out the petition of the commissioner" praying for the citation to show cause; and, upon the overruling of this motion, filed a demurrer "to said report and petition"; which demurrer was overruled. The appellant then filed a pleading "by way of answer to the citation herein issued," etc. The substance of the answer was: (1) That the Benton Circuit Court had no jurisdiction to try the merits of the lien claims; (2) that the purchaser took subject to the alleged liens and should be compelled to pay the full amount to the commissioner; (3) that the appellant is seeking merely to protect his lien interest and that the legal effect of the lis pendens notices was not to obstruct the sale of the land, but (a) to advise the purchaser and (b) to assert a lien against the proceeds from the sale of the lands and not against the lands. The relief requested was that the commissioner and purchaser be required to go forward and complete the transaction "and that the lien of the said James T. Gray to the amount of the judgment obtained by him in the Jasper Circuit Court attach to the shares of the proceeds of said sale owned by the said Albert E. Gray and Edward Y. Gray at this time; and that the commissioner be further ordered to hold the balance of the proceeds of said sale belonging to the said Albert E. Gray and Edward Y. Gray, pending the decision of the said cause No. 12,442 in the Appellate Court," etc.

The cause was submitted to the court upon the basis of the foregoing pleadings.

The transcript shows the following entry by the court: "It is therefore considered, adjudged and decreed by the court that the said real estate be, and the same is hereby discharged and released from said lis pendens notices and the said commissioner ordered and directed to close up the sale heretofore made of said real estate to Nellie M. Gray and to convey the same by his deed free and clear of any and all liens of said lis pendens notices and that the lien created by the said notices, if any, be transferred to the proceeds derived from the said sale.

"And the court now finds against the petition of James T. Gray for the appointment of a receiver, and adjudges that the prayer of the petitioner be denied, to which ruling, the petitioner excepts."

The foregoing entry was made June 30, 1925, and, on July 3, the appellant filed a motion for a new trial. This motion was overruled March 23, 1926, and appellant's transcript was filed September 18, 1926. On March 16, 1927, appellees filed a motion in this court to dismiss appellant's appeal, contending in the supporting brief that the only question presented on appeal was whether the court erred in refusing to appoint a receiver; and that the appeal should be dismissed for the reason that it was not taken within the statutory period of 10 days.

In his brief on appellees' motion to dismiss, the appellant insists that "the judgment appealed from is not an order granting or denying a receiver, but the decree of the court releasing the land from liens and destroying appellant's security for his claims against the owners thereof" that "this is an appeal from the judgment of the Benton Circuit Court releasing and discharging certain real estate from the liens created by the filing of lis pendens notices"; that "the court adjudged and decreed that the land so partitioned and sold by the commissioner should be and was released from the lien of said lis pendens notices, and incidentally and in addition to said decree (our italics)...