Hall v. Price

Citation40 N.E. 1084,141 Ind. 576
PartiesHALL et al. v. PRICE.
Decision Date14 June 1895
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from circuit court, Elkhart county; J. M. Van Fleet, Judge.

Levi Price, administrator of the estate of Isaac Kohli, filed a complaint to stay foreclosure proceedings of Harriet Hall and another against the estate of deceased. From a judgment staying the proceedings, defendants appeal. Affirmed.

Vail & Salsbury, for appellants. Wilson & Davis, for appellee.

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, Rev. St. 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 Rev. St. 1894 (Acts 1885, 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 asked for 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 defendants' liens, and prayed the court to fix the priorities of the liens,-all of which...

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