Hamilton v. Byram

• Court: Indiana Supreme Court
• Writing for the Court: Berkshire
• Citation: Hamilton v. Byram, 122 Ind. 283, 23 N.E. 795 (Ind. 1890)
• Decision Date: 26 February 1890
• Parties: Hamilton v. Byram et al.

122 Ind. 283

23 N.E. 795

Hamilton

v.Byram et al.

Supreme Court of Indiana.

Feb. 26, 1890.

Appeal from circuit court, Montgomery county; E. C. Snyder, Judge.

Davidson & Dice, for appellant. W. H. Thompson, for appellees.

Berkshire, J.

The facts in this case, briefly stated, are as follows: The appellant brought this action in the Fountain circuit court against the appellees and John L. and Samuel Adams, to quiet his alleged title to certain real estate situated in Fountain county, and afterwards the venue was changed to the Montgomery circuit court. The Adamses filed a disclaimer. The appellees filed a general denial and a cross-complaint to quiet their alleged title to the real estate. The appellant answered the cross-complaint with a general denial only. The cause was submitted to the court for trial, and a special finding requested, and after the trial had been concluded the court returned its special finding. To the conclusions of law, as announced by the court in its special finding, the appellant excepted. The appellant then moved for a venire de novo, which the court overruled, and he saved an exception. The court then rendered judgment for the appellees, and thereupon the appellant moved for a new trial, which motion the court overruled, and he reserved an exception. The appellant next moved for a modification of the judgment, and, the court having overruled said motion, he saved an exception. The errors assigned cover the rulings of the court, and the exceptions reserved, as above stated. The facts found by the court, as stated in its special finding, are as follows: On the 9th day of October, 1879, the legal title to the real estate in question was in the heirs at law of Stephen Jones, deceased, and the equitable title in one John W. Plunkett. That on that day the said heirs at law executed to the said Plunkett their written agreement to convey to him the said real estate, together with other real estate situated in Montgomery county. On the 5th day of November, 1879, the said Plunkett assigned the said written agreement by indorsement to the appellant, and by the terms of said indorsement the said heirs at law of said Jones, deceased, were directed to execute a conveyance for all of said real estate named in their said agreement to the appellant. That afterwards, and on the 11th day of March, 1881, the said heirs and the said Plunkett joined in a quitclaim deed, conveying said real estate to the appellant. At the time of said assignment of said contract and the execution of said deed the said Plunkett was indebted to the appellant in principal, as evidenced by five promissory notes, in the sum of $2,500. The assignment of said written contract, and the execution of said deed in pursuance thereof, were intended to secure the payment of the said indebtedness as evidenced by said notes, and said deed was executed as a mortgage to secure the said debts. The said instrument was recorded in Fountain county on the 2d day of March, 1883. On the 30th day of April, 1880, the appellees recovered a judgment against the said Plunkett in the Montgomery circuit court for the sum of $392.48, together with costs; that on the 24th day of March, 1884, they caused an execution to be duly issued upon the said judgment to the sheriff of Fountain county, who levied the same upon said real estate, and, after advertising as required by law, sold the same on the 19th day of April, 1884, to the appellees, who bid and paid for the same $550, by paying the costs in cash, and receipting said execution for the amount due thereon, and the said sheriff executed a certificate of sale for the said real estate to the appellees. On the 20th day of April, 1885, the said sheriff executed to the appellees a deed to said real estate; and on the 20th day of April, 1885, the same was duly recorded in Fountain county, and on that day the appellees took...