Haymaker v. Schneck
| Citation | 67 N.E. 181,160 Ind. 443 |
| Decision Date | 22 April 1903 |
| Docket Number | 20,035 |
| Parties | Haymaker, Administrator, v. Schneck et al |
| Court | Indiana Supreme Court |
From Clark Circuit Court; J. K. Marsh, Judge.
Suit by Louis Schneck against William T. Stricker and others. From a judgment for plaintiff, Isaac N. Haymaker, administrator of the estate of Phoebe S. Stricker, deceased, appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Appeal dismissed.
W. H Watson and G. H. D. Gibson, for appellant.
G. H Voigt, for appellees.
This action was instituted by appellee in the lower court to foreclose a mortgage lien upon certain real estate. The mortgage was executed by William T. Stricker and wife to Louis Schneck, to secure a promissory note of $ 4,000. After the execution thereof, the mortgagor, together with his wife conveyed the premises to Arnie C. Stricker, and the latter was the owner of the equity of redemption at the time of the commencement of this action. The plaintiff made said Arnie C Stricker and wife defendants in this action. By the terms and stipulations of the deed executed by the mortgagor to the said Arnie C. Stricker, certain indebtedness of said William C. Stricker, held by Phoebe S. Stricker, appellant's decedent, and by Robert Hughes, Hallie K. Hughes, Pink Hughes, and Dick Giltner was made a lien or charge against the lands conveyed to said Arnie C. Stricker. All the last-named persons claiming to hold such liens against the premises were also made defendants to the foreclosure proceedings.
The purpose of the action, as disclosed by the complaint, was not to obtain a personal judgment on the mortgage note, but to foreclose the mortgage, and settle the question of liens. The complaint alleges that the liens held by the defendants under the provisions of the deed in question are each and all junior and inferior to the lien of the mortgage, and the plaintiff in his complaint demanded that each of said defendants be required to appear to the action and set up the liens which they claimed to hold against the premises. All of them appeared in the lower court, and Arnie C. Stricker, the owner of the equity of redemption, together with his wife, filed an answer in denial, and also alleged payment of the mortgage indebtedness. The defendants, Phoebe S. Stricker, appellant's decedent, then in life, together with Hallie K. Hughes, Pink Hughes, Robert E. Hughes, and Dick Giltner, filed separate answers, setting up their respective liens, alleging therein that such liens were superior in equity to the mortgage lien held by the plaintiff. Phoebe S. Stricker also set up her lien by way of a cross-complaint, and demanded affirmative relief. To her cross-complaint she made the plaintiff and all of her codefendants, together with Arnie C. Stricker, administrator of William T. Stricker, defendants. Under her cross-complaint she sought to recover a judgment for $ 3,500 against the administrator of William T. Stricker, and to have a vendor's lien declared in her favor against the mortgaged lands superior in equity to the mortgage lien of plaintiff.
The cause was put at issue upon the complaint, answer cross-complaint, and replies therein filed; the disputed question in the case being mainly in respect to the priority of liens. On trial, the court found in favor of the plaintiff Schneck that there was due to him on the note secured by the mortgage in suit the sum of $ 4,043.97, and that his lien was superior or paramount to any of the liens held by the defendants, and rendered a judgment of foreclosure in his favor and against all of said defendants, adjudging and ordering thereby that the mortgaged lands be sold by the sheriff, and that the proceeds arising out of the sale thereof be applied (1) to the payment of costs; (2) to the payment of the indebtedness secured by the plaintiff's mortgage; (3) to the payment of the lien of Phoebe...
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