Hanley v. Mason

• Decision Date: 01 July 1908
• Docket Number: No. 6,116.,6,116.
• Citation: 42 Ind.App. 312,85 N.E. 381
• Parties: HANLEY et al. v. MASON et al.
• Court: Indiana Appellate Court

42 Ind.App. 312

85 N.E. 381

HANLEY et al.

v.MASON et al.

No. 6,116.^d1

Appellate Court of Indiana.

July 1, 1908.

Appeal from Circuit Court, Wells County; C. W. Watkins, Special Judge.

Action by George B. Mason and others against Mary Hanley and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

See 81 N. E. 610.

Simmons & Dailey and Hamilton & Brown, for appellants. Eichhorn & Matlock and Heaton & Yaple, for appellees.

HADLEY, J.

Appellees filed a complaint in the usual form against appellants to quiet title to certain real estate in Wells county. Appellants filed answer in general denial, cause tried, and judgment rendered in favor of appellees, quieting their title to said land. Appellants moved for a new trial, which motion was overruled. This ruling is assigned as error.

It appears from the evidence: That on March 11, 1869, Rachel Higgs became the owner of the real estate in controversy and continued the owner thereof until June 18, 1869, on which date she, with her husband, conveyed said land to George W. Keeler, and on August 12, 1869, said Keeler conveyed said land to Michael Hanley, the ancestor of appellants, which deed was duly recorded. That on April 19, 1869, said Rachel Higgs and husband mortgaged said land to Sophia Bartley. In 1871, said Sophia Bartley and husband brought suit for foreclosure of said mortgage against said Rachel Higgs and husband, but making no other persons parties thereto. Judgment of foreclosure was entered, and the land sold under the decree and purchased by John S. Bartley, husband of said Sophia. A sheriff's deed was executed and delivered to said Bartley conveying said lands to him under said decree. Bartley thereupon entered into possession of said land. Bartley afterwards conveyed the land to John C. Crandall and wife. Crandall reconveyed the lands to Bartley, and the Bartleys afterwards conveyed the lands to Josephus Mason, ancestor of appellees. In September, 1882, appellants brought suit against said John S. Bartley and Sophia Bartley, Mary E. Lovall, John Hanley, Rebecca Branstrater et al., averring that appellants and Mary E. Lovall, John Hanley, and Rebecca Branstrater were the heirs of Michael Hanley, deceased. The complaint was in two paragraphs; the first being in the usual form of an action to quiet title, and the second averring the purchase of said real estate by said Keeler and the sale of the same on August 12, 1869, by him to said Michael Hanley, subject to the Higgs mortgage to Bartley, and also subject to another mortgage to one Neeley. That said deed to Hanley was properly recorded on October 11, 1869. The paragraph then recited the foreclosure of said mortgage by said Bartleys and the sale of the land on the decree thereunder to said John S. Bartley, and the issuance of a sheriff's deed to said Bartley, as above set out; that said Hanley was not in possession of said land at the time of said sheriff's sale; and that upon said purchase said Bartleys entered into the possession of said lands and continued in the possession thereof until the filing of said suit, a period of 10 years. The complaint then averred that plaintiffs and defendants, Mary E. Lovall, John Hanley, and Rebecca Branstrater, were the owners of said real estate, setting out the interests of each. It also averred the possession of Bartleys for said period of 10 years, their receipt of rents and profits for said time, and their receipt of money from the sale of timber. It also averred the execution of the Neeley mortgage, setting out the amount of the same and its recording. It averred the present possession of the land to be in one Springer, holding under said Bartleys, that said land was not susceptible to division, and asked that an accounting be had with said defendants, and offered to pay said defendants any amount found by the court to be due them, and asked that said mortgage be declared paid and satisfied and so entered of record, and their title to said property be foreclosed and quieted, and for all further proper relief, that said premises be partitioned or be declared indivisible, and a commissioner be appointed to sell the same and pay said liens and distribute the proceeds in accordance therewith.

To this complaint defendant John S. Bartley appeared and filed answer to the second paragraph in five paragraphs, the first of which averred his purchase of the lands at said sheriff's sale on the Higgs mortgage for the sum of $500, his receipt of the sheriff's deed, his possession of said lands from the 15th day of August, 1872, until the commencement of said suit; that, while he had received small amounts of rents and profits arising from said possession and occupation, he had expended a much larger sum in necessary repairs upon said premises, denying that he had cut down or removed any timber except as was necessary to make repairs; that he had paid the taxes, amounting to $200, on said real estate, and asked that plaintiffs be ordered to pay him the amount of his mortgage, together with the money so expended in improving said land and for taxes, before said plaintiffs should be permitted to redeem and take possession of said real estate, and for all other proper relief. The second averred an indebtedness to defendant from plaintiffs for the value of permanent improvements, and asked that said indebtedness be paid him before plaintiffs be permitted to redeem and take possession of said premises. The third averred that, when defendant purchased said land at said sale and entered upon possession, it was untillable and abounded in swamps and bogs and had no rental value; that defendant completed a series of improvements in the way of ditching and clearing said lands and building houses and fences thereon, and whatever rents had been received had been received by virtue of his said labor and expense; and that he should not therefore be charged with the rents and profits. The fourth averred the improvements of said real estate in detail, that the same were made in good faith and in the belief that he was the owner, and that he be allowed for the costs of said improvements over the rents received. The fifth averred said improvements in detail, and that they were made in good faith in the belief that he had the absolute title to said real estate, his possession of the same for 10 years, the knowledge of plaintiffs of said possession and said improvements and their acquiescence therein. Sophia Bartley also filed answer to said second paragraph of complaint, in which she set up the foreclosure and sale of said lands under the Higgs mortgage, set out the notes secured by said mortgage; that said notes were due and unpaid except by said sale of said land; that there was due and owing on said notes to said defendant the sum of $500 and demanded that plaintiffs be ordered to pay said sum to said defendant before they should be permitted to redeem said premises, and for all other proper relief. Defendant Mary E. Lovall filed a cross-complaint, seting up her interest in said land, as widow of said Michael Hanley; that she owned one-third interest in said land, recited the Higgs mortgage to Bartleys, the foreclosure of the same, and the purchase and possession of the Bartleys thereunder, his receipts of the rents and profits, and asked that an accounting be had with a view to find what was due the said Bartleys, if anything, and enable her to pay whatever sum so found and redeem said land from said sale, which she thereby offered to do. Prayer for an accounting and permission to redeem from said sale.

To this cross-complaint all the plaintiffs answered by general denial. Afterwards the cause was tried, and on December 1, 1882, a general finding and judgment was made by the court by which it was determined that the plaintiffs and defendants Mary E. Lovall, John M. Hanley, and Rebecca Branstrater were the owners of said real estate; that there was due the defendants John S. Bartley and Sophia Bartley on their mortgage the sum of $485.60; that there was due on the Neeley mortgage the sum of $410.32; that said sum of $485.60 due Bartleys on their mortgage was a prior lien and should be first paid; that the plaintiffs and said defendant Mary E. Lovall were each entitled to redeem said real estate and hold the same free from incumbrance as to the defendants John S. Bartley and Sophia Bartley, on payment to them of their said claim of $485.60 with interest thereon at the rate of 6 per cent. per annum from date within one year from said date; that, on failure so to pay, they take nothing in the premises by their complaint in this behalf. The court also determined that the land could not be divided without injury and ordered that the same be sold subject to the Neeley mortgage, and Joseph S. Dailey was appointed commissioner to make such sale, and he was ordered to pay said claim of said Bartleys out of the first money coming into his hands from the sale of said premises; and it was also ordered by the court that the parties pay the costs according to their several interests in said real estate. Said commissioner filed his bond, as provided in said order. Afterwards, in December, 1886, plaintiffs and said defendants in said cause having failed to redeem in accordance with said decree, said Dailey presented his petition to the court in said cause, wherein he set out the order above described, and reported that he had advertised and made effort to sell the land within the year after the date of the rendition of said judgment, but was unable to make a sale thereof, and he asked the judgment of the court as to whether the expiration of the year for redemption as fixed in said order without such redemption had not...