Green v. Brown
| Decision Date | 30 September 1896 |
| Docket Number | 16,636 |
| Citation | 44 N.E. 805,146 Ind. 1 |
| Parties | Green et al. v. Brown, Administrator |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
Reversed.
Claypool & Claypool, for appellants.
Fertig & Alexander and Roberts & Vestal, for appellee.
This was a suit by the appellee to establish demands against Eli Green and Jacob C. Green, respectively, and to enforce against them and their co-appellants an equitable lien upon their interests, respectively, in sixty acres of land.
Demurrers were sustained to answers and to amended answers, filed jointly and severally by the numerous parties and a special finding of the facts, with a conclusion of law stated, was rendered by the court. As to one of the appellants, no assignment of error is made as to rulings upon pleadings, and as to the other appellants, assignments as to such rulings are so indefinite, both as to parties and pleadings, as to render confusion inextricable. The first and sixth assignments of error relate to the conclusion or conclusions of law and are joined in by all of the appellants. It is objected, by the appellee, that these assignments relate to conclusions of law collectively, and therefore, raise no question as to conclusions severally. While the conclusion stated relates to separate demands and liens against different persons and interests, it is in form but one conclusion, and may be assigned as one. The correctness of the conclusion of law stated, it is conceded, involves the questions presented by the various answers to which demurrers were sustained, and in the conclusion so stated all of the appellants are interested.
The facts found were in substance that in March, 1880, Seth Green owned a quarter section of land in Hamilton county, and conveyed it to Eli Green for a consideration stated but never paid. Eli conveyed the south half of the land to Jacob C. Green upon the assumption by the latter of one half of the purchase-price owing to Seth Green. In May, 1882, Eli mortgaged the north half of said land for $ 1,300.00, and Jacob mortgaged the south half for $ 1,250.00, and the mortgages were duly recorded. Thereafter said Seth Green was adjudged of unsound mind, and his guardian obtained, against Eli and Jacob, a decree declaring a vendor's lien for $ 3,468.59, the balance of said purchase price, subject to said two mortgages.
The guardian purchased said lands upon said decree, and, Seth Green having died during the year for redemption, the sheriff conveyed the same to the heirs at law of said Seth, including said Eli and Jacob, with others. Later said two mortgages were foreclosed and the property was purchased thereunder by the mortgagee. An administrator of Seth Green's estate was appointed and, upon order of court, he redeemed, with the estate's money, the lands from said mortgage sales, taking assignments of the certificates of purchase, expending therefor, as to Eli, $ 1,756.50, and, as to Jacob, $ 1,806.50, neither of which sums was ever repaid to said estate. And still later partition was had among said heirs, in proceedings for that purpose, and sixty acres off of the south end of the south half of said quarter section were set off to Eli, Jacob, Seth J., Isaac, Phama and Rachel Green, as tenants in common, and the remainder of said quarter section was set off to the other heirs. After this partition, and in further partition of said sixty acres, by an exchange of conveyances, ten acres, off the east end of said sixty acres, were conveyed to said Jacob and his wife, and the remaining fifty acres to said five former tenants in common. Thereafter Eli conveyed his undivided one-fifth of said fifty acres to his said four tenants in common.
Before said first partition, Rachel and Phama Green mortgaged their undivided two-sixteenths interests in the quarter section to Sallie B. Loomis for $ 600.00. After the partition Eli mortgaged his one-sixth interest in said sixty acres to one Rhodes for $ 45.00 and to one Heath for $ 77.00, and said Rachel, Phama and Isaac executed to said Sallie B. Loomis a mortgage of said fifty-acre tract for $ 325.00. In the partition proceedings Claypool & Ketcham were the attorneys for said several parties named Green, and asserted a lien upon the decree and against said sixty-acre tract for $ 400.00 for their services. Thereafter, and when said mortgage for $ 325.00 was executed, said attorneys' lien was released in consideration of the execution to a trustee for Claypool & Ketcham of a mortgage for $ 425.00 upon said sixty acres. All of said mortgages were duly recorded and are unpaid and unsatisfied and were executed while said first mentioned two mortgages, those from Eli and Jacob, were of record and unsatisfied.
It is found, also, that said administrator, after making said redemption, filed his report and resignation as such, said report professing to be a complete accounting of receipts and disbursements, made since his former report, showing the expenditure for said redemptions and that no funds remained in his hands. Certain officers excepted to said report and alleged claims for fees due from said estate. No hearing was had upon said exceptions, but the court accepted the resignation of the administrator and approved his report, excepting as to the matters involved in said exceptions. It was further found that the appellee was appointed administrator de bonis non after the partition, the conveyance and mortgages aforesaid; that the amount owing by Jacob on account of said redemption was $ 1,756.50, and that owing from Eli on said redemption was $ 1,806.50.
Upon said facts the court's conclusion was as follows: "And as conclusions of law upon the foregoing facts the court finds that the plaintiff for the use of said estate does now have and hold an equitable lien on said ten acres off the south side of said lands, now in the name of Jacob C. Green and wife, for said sum of $ 1,756.50, by subrogation to the rights of said security company under said mortgage and the foreclosure and sale aforesaid, and that he is entitled to foreclosure of said lien without relief against all the defendants herein, and that he is entitled to a like lien and foreclosure against the undivided one-fifth part of fifty acres off of the west side of said sixty acres, being the former interest of Eli Green therein, for the said sum of $ 1,806.50, and that said liens are superior to any and all right, title, interest or lien of the defendants herein or upon said portions of said lands."
One question presented is as to the correctness of the conclusion that upon the claim against Eli, a lien could be maintained against his interest in said fifty-acre tract, aside from the question of priority as to other liens, the mortgage and redemption, at the foundation of that claim, having been confined to the north half of said quarter section and the fifty acre tract having been on the south side of the south half of said quarter section. The lien which equity affords to the redemptioner must be confined to the property affected by the original lien from which redemption is made. As in this case, the claim and right of subrogation as against Eli is through the mortgage and the redemption under it. The claim, independently of the mortgage, has no feature giving support to a lien. Equity seizes upon the mortgage and the redemption, on behalf of Eli, as supplying the basis of the lien, and the amount expended in redemption simply measures the extent of the lien. There is in this case no effort to extend that lien to the property covered by the mortgage; on the contrary, it is only sought to attach the lien, as to Eli, to the sixty-acre tract. To support this effort it could only be...
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