Hall v. Price

Decision Date14 June 1895
Docket Number17,549
PartiesHall et al. v. Price, Administrator
CourtIndiana Supreme Court

From the Elkhart Circuit Court.

Judgment affirmed.

L. W Vail and E. Salsbury, for appellants.

H. D Wilson and W. J. Davis, for appellee.

OPINION

Monks J.

This is an appeal from the decision of the lower court staying the foreclosure proceedings of appellants, under the provisions of section 2484, R. S. 1894 (Acts 1883, p. 158).

It appears from the record, that in February, 1893, appellee, as administrator of the estate of Isaac Kohli, deceased, filed his petition to sell the undivided two-thirds of certain real estate, for the payment of decedent's debts; that the widow and heirs all appeared and filed their written assent to such sale, as provided by section 2496. R. S. 1894 (Acts 1883, p. 237); that thereupon such proceedings were had that the court, on February 3, 1893, made the proper order for the sale of said real estate, by appellee, as such administrator. The appellants were not parties to this proceeding, and had no notice thereof, and said real estate was not ordered to be sold free from liens, nor to pay the liens thereon. Afterwards, appellants brought an action against the heirs of Isaac Kohli and appellee, to foreclose a mortgage on the real estate described in the order of sale aforesaid. And such proceedings were had, that on December 19, 1893, the court found that there was due appellants $ 2,005.77 on the note and mortgage sued upon, and rendered a decree foreclosing said mortgage, and ordered that said real estate be sold to pay the same and costs.

The defendants, in that action, appealed from the final judgment of foreclosure to this court. Afterwards, the appellee, as such administrator, filed an amended petition, in the Elkhart Circuit Court, setting forth the foregoing facts, and making the widow and heirs of said estate, and said appellants, defendants to said petition, and asking an order to sell said real estate free from said mortgage, and to pay said mortgage. The heirs appeared and filed their written assent to such sale. The other defendants to such petition, except Susan Peterson, were duly served with notice, and defaulted, and such proceedings were had that the court ordered said real estate sold to pay said mortgage and the amount due appellants, and free from the lien thereof. After said order of sale had been made by said court, said Susan Peterson entered her appearance to said proceeding, and filed her written answer thereto, in which she set forth that she had filed her claim against the estate, that the same had been allowed, and the mortgage had been foreclosed on said real estate, and prayed the court that said real estate be sold as asked for by said administrator, to make assets for the payment of the debts, and the discharge of defendant's liens, and prayed the court to fix the priorities of the liens, all of which had been done. Afterwards, the appellee sold said real estate, as directed by the court, to pay the mortgage of appellants, and free from the lien thereof, and reported the sale to the court, which was confirmed, and by order of the court, on the 24th day of February, 1894, he executed a deed to the purchaser thereof.

On the 28th of July, 1894, appellee filed a complaint in the Elkhart Circuit Court against appellants, setting forth...

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3 cases
  • Pattison v. Hogston
    • United States
    • Indiana Appellate Court
    • July 1, 1927
    ... ... the instant case, they need not be made defendants in the ... original petition or in the petition to modify ...          In ... Hall v. Price, Admr. (1895), 141 Ind. 576, ... 40 N.E. 1084, an administrator procured an order to sell real ... estate subject to liens. At a ... ...
  • Pattison v. Hogston
    • United States
    • Indiana Appellate Court
    • July 7, 1927
    ...done in the instant case, they need not be made defendants in the original petition or in the petition to modify. In Hall v. Price, Adm'r, 141 Ind. 576, 40 N. E. 1084, an administrator procured an order to sell real estate subject to liens. At a subsequent term the court on petition of admi......
  • Hall v. Price
    • United States
    • Indiana Supreme Court
    • June 14, 1895

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