Hammann v. Mink

• Decision Date: 30 October 1884
• Docket Number: 10,562
• Citation: 99 Ind. 279
• Parties: Hammann v. Mink
• Court: Indiana Supreme Court

99 Ind. 279

Hammann v. Mink

No. 10,562

Supreme Court of Indiana

October 30, 1884

Petition for a Rehearing Overruled March 12, 1885.

From the Wayne Circuit Court.

W. D Foulke and J. L. Rupe, for appellant.

W. A Bickle, for appellee.

OPINION

Best, C.

The appellant, an infant, by her next friend, brought this action for the partition of certain real estate, improved and used as a brewery, situated in Wayne county, in this State, alleging in her complaint that she owned an undivided one-sixth and the appellee the residue, as tenants in common.

The appellee filed an answer of two paragraphs. The first was the general denial, and the second alleged, at great length, that Christian Hammann died intestate, seized of the land in question, leaving his widow, Caroline Hammann, and the appellant as his only heirs at law, and that the latter has no claim to the land other than such as she acquired by inheritance from her father; that shortly after his death the widow was appointed the guardian of the daughter, and thereafter obtained an order from the proper court to sell the daughter's interest in said land; that in pursuance of such order she thereafter sold such interest in said land to Henry Winterling and Frederick Paulus for $ 2,606.66, which was more than its appraised value; that thereafter said sale was reported to and confirmed by the proper court, and a deed made, approved and delivered to said purchasers; that thereafter the appellee acquired by purchase through said purchasers the title thus conveyed to them, and that he is the owner in fee of the same.

The appellee also filed a cross complaint, in which he averred, in addition to the facts alleged in the answer, that the guardian's deed, through which he claims title, omits to state the page of the order-book upon which the order of sale is entered; that the clerk, in making the final record, by mistake, inserted the name of "Henry Martischang," instead of "Henry Winterling," as purchaser, and that the appellee purchased said land in good faith and without any notice of any irregularities in such sale. Prayer that the proper deed may be executed, and that his title be quieted, etc.

An answer in denial of the cross complaint, and a reply in denial of the answer completed the issues. These were submitted to the court, and a finding was made for the appellant. A motion for a new trial as of right was granted the appellee, and a motion by the appellant to strike out such order was overruled. The issues were again submitted to the court, with a request that the court find the facts specifically, and state its conclusions of law. This was done. The appellant excepted to the conclusions of law, moved for a venire de novo and for a new trial, all of which were overruled, and final judgment was rendered for the appellee. These various rulings have been assigned as error.

The application for a new trial as a matter of right was in writing, verified before "James W. Moore, clerk," and in support of it William A. Bickle testified that he paid the costs, $ 15.50, in silver, at the time the application was made.

The appellant insists that the court erred in granting such trial, because it was not shown that James W. Moore was the clerk of the Wayne Circuit Court. This was unnecessary. The court knows its own officers, and it is unnecessary to prove that of which it takes judicial notice. Brooster v. State, 15 Ind. 190; Hipes v. State, 73 Ind. 39.

It is also insisted that the clerk had no authority to receive such costs, and in support of this position the case of Scott v. State, ex rel., 46 Ind. 203, and several other cases previously decided, are cited.

These cases probably induced the enactment of the act of March 9th, 1875, the first section of which provides "That the clerks of the several courts throughout this State shall be, and they are hereby authorized to receive money in payment of all judgments, dues and demands of record in their respective offices, and all such funds as may be ordered to be paid into the respective courts of which they are clerks, by the judge thereof, and said clerks, with their sureties, shall be liable on their official bonds for all moneys so received," etc. 2 R. S. 1876, p. 17.

This statute is broad enough to embrace costs, and we think it clearly authorized the clerk to receive them. A payment to him, therefore, was a sufficient compliance with the law in this respect.

It is also insisted that the payment in silver was unauthorized, and hence the appellee was not entitled to a new trial. The record does not show that more than $ 5.00 of this sum was due any person, and as such sum may be lawfully paid in the silver coins of the United States, we will not presume that more than such sum was due any one. If not more than $ 5.00 was due any person, the payment of the whole was properly made in silver. In addition to this, if the clerk accepted the money, and was prepared to pay the parties entitled to the costs in legal money, the payment was sufficient. Jessup v. Carey, 61 Ind. 584; Boyd v. Olvey, 82 Ind. 294. The payment, therefore, does not appear to have been improperly made.

It is also insisted that the court possessed no power to grant a new trial as of right in a partition suit. This, by no means, follows. The power to grant such trial does not depend upon the name, but upon the nature, of the action. The cross complaint constituted an action to quiet title to real estate, and in such actions either party is entitled to a new trial as a matter of right. The fact that such action is introduced by cross complaint in no manner impairs such right, as has several times been decided by this court. Adams v. Wilson, 60 Ind. 560; Miller v. Evansville Nat'l Bank, ante, p. 272. The court did not, as we think, err in granting such new trial.

It is next insisted that the court erred in its conclusions of law upon the facts found. The facts are, in substance, these:

First. That Christian Hammann died intestate on the 18th day of September, 1867, seized of the undivided one-third of the premises in dispute, leaving his widow Caroline Hammann, and the appellant, his daughter, as his only heirs at law, and that the widow was thereafter, by the court of common pleas of Wayne county, where said real estate is situate, appointed the guardian of said daughter.

Second. That said guardian, on the 30th day of May, 1868, filed her application in said court for an order to sell the interest of her ward in said realty, and after the same was appraised at $ 1,912.50, the same was ordered sold upon the usual terms, viz., one-third of the purchase-money in hand, one-third in twelve and the residue in eighteen months.

Third. That in pursuance of said order said guardian sold said realty, including the interest of said guardian therein, to Henry Winterling and Frederick Paulus, for about $ 4,533.32, and on the first day of October, 1868, she made them a deed for her ward's interest, the consideration of which was named at $ 2,266.66; that at the same time they paid her in cash $ 1,000, and made her two notes, one of $ 2,606.66, payable to her individually, and the other for $ 293.33, payable to her as guardian, both of which were secured by mortgage upon the premises, and the evidence fails to show how the residue of the purchase-money was paid or secured; that said deed is in due form, except that it does not contain a reference to the page of the order book where the order is entered; that a report of said sale was made showing that said realty was sold to Henry Winterling and Frederick Paulus on the 30th day of December, 1867, for $ 2,206.66, and upon the final record the name of "Henry Winterling" by mistake was entered as "Henry Martischang."

Fourth. That at the January term, 1869, of said court, said sale was confirmed and said deed approved.

Fifth. That on the 13th day of October, 1868, after said deed had been delivered, but before its approval, said Winterling and Paulus executed a mortgage upon said premises to one David Hoerner to secure a note of $ 4,000, due from them to him; that at the April term, 1873, of the Wayne Circuit Court, said Hoerner brought an action to foreclose said mortgage against said Winterling and Paulus, and against said Caroline Hammann, who, by cross complaint, set up the mortgage so made to her by said Winterling and Paulus as a prior lien, and demanded its foreclosure; that issue was taken upon the cross complaint, the matter referred to a referee, a finding made against said Caroline and in favor of said Hoerner, and judgment rendered accordingly, ordering said property to be sold upon said decree; that an order of sale was issued thereon and said property duly sold by the sheriff of said county for $ 3,000 to the appellee, who paid the purchase-money in good faith, and without any knowledge of any prior equity took the sheriff's deed, under which he has ever since held and now holds possession.

Sixth. That after said sheriff's sale, to wit, at the November term, 1873, of the Wayne Circuit Court, said Caroline, as such guardian, brought an action in said court against said Winterling and Paulus, and against the appellee, to foreclose said mortgage so given to her by said Winterling and Paulus, and upon an issue formed thereon the court found against said Caroline, and in favor of the defendants.

Seventh. "While it is found that the sale was made by the said guardian, under the order of the court of...