Hatfield v. Mahoney

• Citation: 39 Ind.App. 499,79 N.E. 408
• Decision Date: 27 November 1906
• Docket Number: No. 5,767.,5,767.
• Parties: HATFIELD et al. v. MAHONEY, Sheriff, et al.
• Court: Indiana Appellate Court

39 Ind.App. 499

79 N.E. 408

HATFIELD et al.

v.MAHONEY, Sheriff, et al.

No. 5,767.^*

Appellate Court of Indiana, Division No. 1.

Nov. 27, 1906.

Appeal from Circuit Court, Huntington County; O. W. Whitelock, Special Judge.

Suit to enjoin the sale of land, brought by James M. Hatfield and others against George A. Mahoney, sheriff, and others. From judgment in favor of defendants, plaintiffs appeal. Reversed.

J. T. Alexander, for appellants. Spencer & Branyan, for appellees.

ROBINSON, J.

Suit to enjoin the sale of certain land by the sheriff. The facts found by the court are, in substance: That on February 11, 1891, Elizabeth Hatfield owned a certain-described tract of land containing 17.85 acres which she had owned and occupied for more than 10 years prior thereto. On the above date there were $91.46 delinquent taxes against the land which had accumulated while she owned it; and on that date by an erroneous description, the auditor offered the land for sale and one John Highland attempted to purchase it, but in the certificate a defective description was inserted. On February 17, 1893, there was issued to Highland a deed which contained no accurate description. Highland at once took possession, and continued in possession until April 4, 1901, receiving the rents and profits, and on that date Highland and wife conveyed the land by warranty deed to Lizzie C. Chenoweth, who went into possession. Elizabeth Hatfield continued to own the land until her death August 25, 1895, when the same was inherited by her children Sabina Highland, wife of John Highland, and Uriah J. Peigh. On January 10, 1902, Peigh and wife conveyed to appellants the undivided one-half of the land, and on January 18, 1902, appellants brought partition proceedings asking that one-half be set off to them and one-half to Lizzie C. Chenoweth. That Chenoweth answered by denial, and also filed a cross-complaint alleging that she held a lien on the land by reason of the purchase at tax sale on February 11, 1891, by John Highland and for taxes afterward paid by him up to the time he sold the land to her, April 4, 1901. That in that proceeding the court found that appellants and Chenoweth were tenants in common, and that one-half should be set off to each, and that Chenoweth held a lien on the whole of the land for $470.03, for taxes paid and interest. That judgment was rendered awarding to appellants one-half of the land and to Chenoweth one-half and foreclosing the lien for $470.03, and adjudged a specific lien on the whole of the land; and that appellants here should pay Chenoweth one-half of that sum in 120 days, or the land sold, and that, upon payment of the lien, partition should be made. That such decree and judgment remain in full force. That commissioners were appointed and their reports, awarding the west half to Chenoweth and the east half to appellants, confirmed, and the parties at once went into possession of the land thus awarded them. That Chenoweth continued in possession until March 26, 1903, when she and her husband conveyed her part to Krees, who took and now has possession. Prior to July 12, 1902, Uriah J. Peigh assigned to appellants the sum due him from John Highland for rent while Highland occupied the land, and on July 12, 1902, appellants instituted suit against Highland for $400, which was then due and unpaid, for rent, which sum has never been paid. About May 1, 1903, John Highland died, and James Highland was appointed administrator, and was substituted as party to that suit, and in April, 1905, by judgment of the Huntington circuit court appellants were allowed $400 against such estate, and no part of such allowance has been paid. On March 19, 1904, Chenoweth entered upon the margin of the partition record an indorsement stating that for value received and...