Griffin v. Hodshire

• Decision Date: 04 June 1889
• Docket Number: 13,885
• Parties: Griffin, Administrator, v. Hodshire
• Court: Indiana Supreme Court

21 N.E. 741

119 Ind. 235

Griffin, Administrator, v. Hodshire

No. 13,885

Supreme Court of Indiana

June 4, 1889

From the Montgomery Circuit Court.

Judgment affirmed.

B Crane and A. B. Anderson, for appellant.

T. H Ristine, H. H. Ristine, P. S. Kennedy and S. C. Kennedy, for appellee.

OPINION

Coffey, J.

The appellee filed the following claim, in the Montgomery Circuit Court, against the estate of James Wasson, deceased, viz "The estate of James Wasson, deceased, to Martha F. Hodshire, Dr: To amount of judgment in her favor, and against said defendant and John Wasson, rendered in the Montgomery Circuit Court on the 20th day of May, 1876, entered in Order Book 19, page 85, and in Judgment Docket 7, at page 85, $ 1,484.70, and interest on the same to this date, February 18, 1887, $ 958.82, $ 2,443.52."

Upon an issue formed by the general denial the cause was tried by the court, who made a special finding of the facts and stated conclusions of law thereon as follows:

"1. That on the 20th day of May, 1876, the plaintiff, Martha F. Hodshire, recovered a judgment and a decree of foreclosure, in the Montgomery Circuit Court, of Indiana, * * against the deceased, James Wasson, and another, for the sum of $ 1,484.70, and that there is due and unpaid, at this time, for the principal and interest thereof, the sum of twenty-four hundred and seventy-two dollars ($ 2,472).

"2. That a certified copy of the decree and judgment rendered in said case of Hodshire v. Wasson et al., on said 20th day of May, 1876, issued to the sheriff of Montgomery county, Indiana; that the only endorsement or return ever made by said sheriff upon said certified copy of said decree and judgment was in the words following:

"'April 21st, 1877. Received of Martha F. Hodshire the sum of sixteen hundred and twenty and 25-100 dollars, in full of her bid and purchase money on the within described real estate.

Samuel D. Smith, Sheriff M. C.'

"'April 21st, 1877. Received of S.D Smith, sheriff, the sum of fifteen hundred and sixty 60-100 dollars in full of the principal and interest due plaintiff as realized on sale of the within described real estate.

"'Mrs. M. F. Hodshire, per H. Wasson.'

"3. That Samuel D. Smith, as sheriff of Montgomery county, Indiana, on the 21st day of April, 1877, offered for sale at public auction the real estate described in said decree, to satisfy the judgment in favor of Martha F. Hodshire v. James Wasson et al., rendered May 20th, 1876, and that at such sale there was bid for said land, on behalf of said Hodshire, the amount due for principal, interest and costs upon said judgment, to wit: $ 1,620.70, and that said Smith, sheriff, did, on said 21st day of April, 1877, as such sheriff, sell said real estate to said Martha F. Hodshire.

"4. That at some time thereafter, Henry Wasson paid to said sheriff the sum of $ 54.00, costs, and that he paid the said sum as the agent of said Martha F. Hodshire.

"5. That on the 7th day of January, 1884, the said James Wasson instituted a suit against said Martha F. Hodshire, being cause No. 6,984, in the Montgomery Circuit Court, to have declared satisfied the judgment rendered in favor of said Hodshire against said Wasson on May 20th, 1876, as hereinbefore found; that in said suit there was a special finding of facts and conclusions of law stated thereon, and in pursuance thereof it was adjudged that plaintiff take nothing by his suit, and judgment was rendered in favor of said Hodshire for costs; that said Wasson appealed therefrom to the Supreme Court of Indiana, and the judgment rendered as aforesaid was, in said Supreme Court, affirmed; that the complaint, answer and order book entries, special finding of facts and conclusions of law, and judgment in said cause No. 6,984, are as follows: * * * 'James Wasson, plaintiff, complains of Martha Hodshire, and says, that on the 7th day of May, 1872, the plaintiff and John Wasson were the joint owners of the following described real estate in Montgomery county, Indiana, to wit: The southwest quarter of section thirty-four (34), township twenty (20) north, of range four (4) west, containing 160 acres, more or less; that on the said 7th day of May, 1872, the plaintiff and said John Wasson borrowed of the defendant the sum of $ 2,250, and executed to the defendant their note therefor, and to secure the payment of the note executed to the defendant a mortgage on said described real estate; that one-half of the said sum of $ 2,250 was received by and was for the use and benefit of said John Wasson; that, as to the share of said $ 2,250 received by said John Wasson, plaintiff was surety only for said John, as the defendant well knew, at the time said money was lent and said note and mortgage executed; that on the 7th day of April, 1875, the said James Wasson, by himself or an authorized agent, paid the one-half of the amount then due on said note, the whole note being then due and payable, and the said defendant, by entry of record, released all the interest of the plaintiff in and to the real estate described in said mortgage from the lien of said mortgage, and plaintiff's interest in said mortgaged premises was one-half in value thereof; that on the 13th day of April, 1876, said defendant commenced a suit, in the Montgomery Circuit Court, against said plaintiff and said John Wasson, on said note for the balance due thereon, and for the foreclosure of said mortgage; that such proceedings were had in said suit as resulted, on the 20th day of May, 1876, in a judgment against said plaintiff and said John Wasson for the balance due on said note, to wit, $ 1,409.40, and the further sum of $ 75.00 as attorney's fees, and the foreclosure of said mortgage as to the interest of John Wasson in said real estate at the time the mortgage was executed, said interest being the undivided one-half of said real estate; that in and by said decree it was ordered that said undivided half of said real estate be sold to satisfy said judgment, and in default of said real estate bringing sufficient to satisfy said judgment, that the balance be made by levy and sale of the property of said defendants; that on the 3d day of November, 1876, a copy of said judgment and decree was duly certified to the sheriff of said county, who proceeded by virtue thereof to advertise said real estate for sale, and on the day of -----, 1876, in pursuance of said advertisement, offered said real estate for sale at the court-house door in said county, and the plaintiff, by herself and agent, bid for said real estate an amount sufficient to satisfy said judgment, interest and costs, and accrued costs, and the said bid was accepted, it being the highest and best bid made; that said defendant failed and refused to pay the costs included in said proceedings and to complete the purchase of said real estate; that she suffered said real estate to become delinquent for taxes, and that afterwards said real estate was sold to satisfy said delinquent taxes, to Hector S. Braden, who received a deed by virtue of said sale, and acquired the title thereby to said real estate; and plaintiff further avers that said real estate was, at the time of the rendition of said judgment, and at the time it was offered for sale as aforesaid, more than sufficient in value to pay said judgment and costs, and accruing costs; wherefore,' etc., * * *. That said Martha F. Hodshire answered said complaint by a general denial.

"That the special finding in said cause was as follows:

"'1. That on the 7th day of May, 1872, the plaintiff and John Wasson were the joint owners of the following described real estate, in Montgomery county, to wit: The southwest quarter of section thirty-four (34), township twenty (20) north, range four (4) west.

"'2. That on said 7th day of May, 1872, the plaintiff and the said John Wasson borrowed of the defendant the sum of $ 2,250, and executed to her their note therefor and a mortgage upon said land to secure the same.

"'...