Helms v. Wagner

• Decision Date: 20 June 1885
• Citation: 102 Ind. 385,1 N.E. 730
• Parties: Helms v. Wagner.
• Court: Indiana Supreme Court

102 Ind. 385

1 N.E. 730

Helms

v.Wagner.

Supreme Court of Indiana.

Filed June 20, 1885.

Appeal from Huntington circuit court.

Branyan & Spencer and Kaufman & Branyan, for appellant.

Kenner & Dille, for appellee.

Howk, J.

This was a suit by the appellant, Helms, as plaintiff, to quiet her title to certain real estate in Huntington county. The appellee, Wagner, answered the appellant's complaint by a general denial, and also filed a cross-complaint, wherein he asked that his title to the same real estate might be quieted. Appellant answered the cross-complaint by a general denial. The issues joined were tried by the court, and, at the appellee's request, the court made a special finding of facts and stated its conclusions of law thereon in favor of the appellee. Over the appellant's exceptions to the conclusions of law, the court rendered judgment in accordance therewith.

The only error relied upon by the appellant, and presented by the record, is the alleged error of the trial court in its conclusions of law upon the facts specially found. The point is made by appellee's counsel, and insisted upon strenuously, that no question is presented by this alleged error for the decision of this court, because the record fails to show that appellant excepted at the time to the conclusions of law. This point is not well taken. The record shows that when the court made its special finding of facts and stated its conclusions of law thereon, and ordered the same to be recorded, the appellee moved the court for judgment in his favor on his cross-complaint upon the special finding of facts, which motion was overruled; and that appellee then filed his written motion for a new trial. Then the record shows that on the same day, and as the first step taken by appellant, she excepted to the court's conclusions of law. It is claimed on behalf of the appellee that this record does not show that appellant excepted to the court's conclusions of law at the time the decisions were made because the entry of his motions precede the entry of her exceptions in the record. Notwithstanding this fact, we think that the record clearly shows that the appellant excepted at the time to the court's conclusions of law. Appellant's exceptions and appellee's motions could not possibly be entered at the same instant of time, and on the same lines of the record; and the mere fact that the entry of his motions precedes the entry of her exceptions in the record does not show that her exceptions were not taken at the time the decisions were made. Dickson v. Rose, 87 Ind. 103.

The facts specially found by the court were, in substance, as follows: (1) On the twentieth day of February, 1880, the appellant owned the land described in her complaint, and her husband, William M. Helms, owned 30 acres adjoining the same on the north. Both tracts were listed and entered for taxation in one tract, in the name of said William M. Helms. The 48 acres of such land was owned by appellant, by deed recorded in the recorder's office in such county prior to the assessment of such taxes, but was not separately transferred for taxation. On said February 20, 1880, both of such tracts were charged with $109.06, as delinquent and current taxes; and the said 48 acres, so belonging to appellant, were sold by the treasurer of such county, for such taxes, to the appellee, who bid and paid for the same on that day such sum of $109.06. (2) Before such lands were advertised for sale the delinquent taxes thereon were demanded by the deputy county treasurer and tax collector from the appellant, who failed to pay the same, or any part thereof. No demand for property to pay such taxes was ever made of the appellant. (3) The appellant, for two years preceding such sale, and at the time thereof, was the owner of personal property, to-wit, horses, cattle, household goods, etc., to the value of at least $200. No levy on any of such property was ever made to pay such taxes, or any part thereof. (4) The appellant, during the times hereinbefore mentioned, lived on such lands and had such personal property in her possession thereon. (5) The appellee received a deed from the auditor of such county for such lands on such sale, on the twenty-second day of February, 1882. (6) The appellee paid $11.69 taxes on such land on the twenty-eighth day of February, 1882. (7) On the fourth day of November, 1882, the appellant tendered the appellee $140 in gold coin, in payment of such sums so paid by him, but did not pay the same to the clerk, but tendered it again on the trial of the case.

Upon the foregoing facts, the court stated its conclusions of law as follows: (1) Appellee's tax deed for such land, found in finding No. 5, above, is invalid to convey the title to such real estate to him. (2) The sale of such real estate for taxes, as found in finding No. 1, above, was invalid to convey the title to such real estate to the appellee. (3) The appellee has a lien on the appellant's land, described in her complaint, for the amount he paid on such tax sale, found in finding No. 1, above, and for the taxes he has since paid, found in finding No. 6, above, with 25 per cent. per annum from dates of payments, as in such findings found, until the present, amounting to the sum of $214.50, for which sum he should have judgment and have the same declared a first lien on such land of the appellant, described in her complaint. (4) The appellee should recover costs in this cause.

In discussing the alleged error of the court in its conclusions of law, appellant's counsel earnestly insist that the county officers were not authorized and had no power, under the law, to sell her land for the payment of taxes due from her husband upon his real estate. As a legal proposition this may be conceded to be correct; but we fail to see how it can possibly benefit the appellant ...