Herff v. Griggs

• Decision Date: 15 January 1890
• Docket Number: 13,816
• Citation: 23 N.E. 279,121 Ind. 471
• Parties: Herff et al. v. Griggs
• Court: Indiana Supreme Court

23 N.E. 279

121 Ind. 471

Herff et al. v. Griggs

No. 13,816

Supreme Court of Indiana

January 15, 1890

From the Miami Circuit Court.

Judgment reversed.

H. J Shirk and J. Mitchell, for appellants.

L Walker and W. B. McClintic, for appellee.

OPINION

Elliott, J.

The complaint of Anthony W. Griggs seeks to have a decree of foreclosure reviewed and modified, and it sets forth at length the proceedings in the case in which the decree was rendered. The suit for foreclosure was brought by Sallie Herff and Gustave Conradt filed a cross-complaint based on a junior mortgage. The notes and mortgage on which the foreclosure proceedings of Sallie Herff were founded were executed by John H. and Jane T. Griggs, the father and mother of Anthony W. Griggs, and the note on which Conradt's cross-complaint is founded was executed by Frances and Charles F. Griggs, but the mortgage securing it was executed by John H. and Jane T. Griggs. The appellee, Anthony W. Griggs, was named as one of the heirs of Jane T. Griggs, who had died before the commencement of the foreclosure suit, and was made a defendant to the suit. On the decree sale was made, and the mortgaged property was bought by Henry Reckhart, to whom a deed was executed by the sheriff in November, 1885. The ground upon which the appellee, Anthony W. Griggs, sought to have the judgment reviewed was the discovery of material new matter, and the allegations of his complaint touching that subject are, in substance, these: On the first day of January, 1842, Jacob W. Young was the owner of the real estate in controversy, and on that day executed a deed, for a valuable consideration, to the plaintiffs, Warren A. Griggs, Charles F. Griggs, and Oliver M. Griggs, all of whom were infants of tender years, and children of John H. and Jane T. Griggs; that the persons last named immediately took possession of the real estate, under the deed, and occupied it thereafter with their children, the grantees in the deed executed by Young, until the 23d day of April, 1862, when they executed a deed for the west half of the lot to Sarah E. Griggs; that Sarah E. Griggs subsequently conveyed the west half of the lot to Jane T. Griggs, and she afterwards conveyed it to Charles F. Griggs; that by the death of Oliver M. Griggs in 1849, Jane T. Griggs acquired an interest in the property; that at the time Young delivered the deed to John H. and Jane T. Griggs for the grantees therein named, the plaintiff was two years of age; that he had no knowledge of the deed executed in 1842 by Young, nor any means of knowing that it was in the possession of the persons to whom it was delivered; that it was concealed from him by those persons, and that they caused it to be generally reported that there was an unrecorded deed executed by Young vesting title in them; that at the time the foreclosure suit was instituted the plaintiff had no knowledge or intimation of the existence of the deed executed by Young, nor is there any record thereof.

The complaint shows all the diligence that it was possible for a person in the plaintiff's situation to exercise. He knew nothing of the execution or existence of the deed by Young in 1842, and he can not be charged with negligence in not searching for an unknown instrument.

The rule upon the subject of former adjudication does not apply to a direct attack upon a judgment, and a bill to review a judgment is such an attack. It is in its essential features very like an appeal. American Ins. Co. v. Gibson, 104 Ind. 336, 3 N.E. 892. "A matter," declares the ancient maxim, "the validity of which is at issue in legal proceedings, can not be set up as a bar thereto."

The judgment upon a bill of review in a case where the plaintiff succeeds does not finally adjudicate the controversy; all that it does is to set aside the judgment assailed and open the original case for trial. Leech v. Perry, 77 Ind. 422. The question, therefore, is, does the complaint for review make a prima facie case, entitling the plaintiff to have the cause again tried? The effect of a judgment granting a review is not very different from a judgment on appeal awarding a new trial.

The complaint shows the delivery of the deed to third persons for the benefit of the grantees in January, 1842, and on the day of its delivery it became effective as against the parties to whom it was delivered. The registry of a deed adds nothing to its effect as between the immediate parties, it serves only to impart notice. Wines v. Woods, 109 Ind. 291, 10 N.E. 399; Bever v. North, 107 Ind. 544, 8 N.E. 576. If the case at our bar were one between the persons who executed the mortgages upon which the decree of foreclosure was founded and the plaintiff, there would be little difficulty, for, as between those parties, the deed is valid and effective, but the intervening rights of the mortgagees are such as to add an influential element to the case.

It is not alleged that the mortgages were not founded on a valuable consideration, nor is it charged that they were not in good faith accepted upon the belief that the mortgagors owned the land of which they were in possession, and, therefore, the presumption must be in favor of the mortgagees upon these points. Mortgagees who acquire an interest in the land in good faith and for a valuable consideration, occupy substantially the same position with reference to an unrecorded deed as a bona fide purchaser of the land. Gilchrist v. Gough, 63 Ind. 576; Brower v. Witmeyer, ante, p. 83; Jackson v. Reid, 30 Kan. 10, 1 P. 308; Mott v. Clark, 9 Pa. 399; Trull v. Bigelow, 16 Mass. 406. If the complaint can be regarded as stating a cause of action against the mortgagees, it must be for the reason that it avers that the mortgagors went into possession by virtue of the unrecorded deed, and held under the title which it vested in the grantees.

The mortgagors entered into possession in 1842, and had continuously held possession for more than forty years at the time the mortgages were executed. If their possession can be deemed adverse it had ripened into a fee simple long before the mortgages were executed, for a title by limitation is a title in fee. Sims v. City of Frankfort, 79 Ind. 446 (449); Wilson v. Campbell, 119 Ind. 286, 21 N.E. 893. The question, therefore, narrows to the effect of this long continued possession upon the rights of persons who occupy the position of bona fide purchasers as against the real owner under a deed executed forty years before the bona fide purchasers acquired their rights, and not recorded until after the acquisition of those rights.

The complaint avers that the mortgagors caused it to be reported that they were the owners under an unrecorded deed,...