Hubble v. Berry

• Decision Date: 26 November 1913
• Docket Number: 22,498
• Parties: Hubble v. Berry et al
• Court: Indiana Supreme Court

103 N.E. 328

180 Ind. 513

Hubble v. Berry et al

No. 22,498

Supreme Court of Indiana

November 26, 1913

From Sullivan Circuit Court; Charles E. Henderson, Judge.

Action by Ida M. Hubble against Matt H. Berry and another. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Reversed.

Charles D. Hunt and Gilbert W. Gambill, for appellant.

A. G McNabb, for appellees.

OPINION

Morris, C. J.

Injunction suit by appellant against appellees, to enjoin the sheriff of Sullivan County from selling appellant's real estate on execution issued under a judgment, in favor of appellee Berry, against George Hubble, husband of appellant. Appellee Berry answered separately in two paragraphs. The first is a general denial, and the second alleges in substance the same facts afterwards stated by the trial court in its special findings. The court overruled appellant's demurrer to this paragraph of answer, and the ruling is here assigned as error. The court stated its conclusions of law, on the facts found, in favor of defendants. Appellant's exception to this conclusion, and the ruling on demurrer, are considered together.

The court found that appellant's husband, George Hubble became the fee simple owner of the real estate in controversy in September, 1896; that at the January term, 1897, Allen and Stephen Newlin recovered a judgment, in the Sullivan Circuit Court, against him and appellant in the sum of $ 122.40, in a suit on a materialman's lien. "That afterwards a decree on said judgment was issued to the sheriff of said county commanding him to sell said real estate to satisfy said judgment"; that the sheriff sold the same August 24, 1897, to the Newlins for the amount of the judgment and costs; that the sheriff issued a certificate of purchase to them, which was duly recorded in the lis pendens record; that on August 20, 1898, in writing, endorsed on the certificate, they assigned the same to one Albert Hubble; that thereafter, on the same day, the latter, in writing, endorsed on the certificate, assigned the same to appellant; that neither assignment was ever recorded in the lis pendens record, or elsewhere; that each assignment was made for a valuable consideration, to wit, a sum equal to the purchase price named in the certificate and interest; that appellee had no notice thereof, until after the execution to appellant of a sheriff's deed for the property, which occurred October 15, 1907; that appellee Berry never attempted to redeem said real estate; that on October 15, 1907, appellant presented the certificate of purchase to the sheriff, and demanded a deed for the land in dispute, and on the same day a deed was executed to her by the sheriff; that no demand for a deed was ever made until said time, which was more than ten years after the rendition of judgment, and execution of the certificate of purchase; that in October, 1902, appellee Berry recovered a judgment, in the Sullivan Circuit Court, against George Hubble in the sum of $ 180, which is in full force and effect; that at the time, and continually since, George Hubble was and has remained insolvent, and owns no property, aside from this in controversy, subject to execution; that in April, 1910, Berry caused the execution, here in question, to issue, and the sheriff levied on said property and advertised it for sale, and will, unless enjoined, sell it to satisfy Berry's judgment; that appellant was not a party to Berry's action, and was never indebted to him; that continuously since September, 1896, George Hubble has been a resident householder of Sullivan County, Indiana, and that he and appellant have, during all said time, resided on the land in dispute; that the real estate was worth $ 900 in 1897, and in 1910 was worth $ 1,500.

Appellee contends that there was no error committed, because the holder of a sheriff's certificate has not, prior to the execution of a deed, anything more than a lien on the real estate; that this lien takes its character from the judgment lien, "and is therefore governed by the same period of limitations as the judgment out of which it arose". This theory is embodied in the second paragraph of answer, and was evidently adopted by the trial court, because the special finding states the same facts substantially, as are pleaded in such paragraph. Counsel for appellant maintain that the statute prescribes no limitations on the life of a sheriff's certificate of purchase, and that mere lapse of time, though greater than the term of existence of a judgment lien, could not impair the right of appellee to a sheriff's deed, and that, when so executed, it related back to the date of the judgment. It is not contended by appellees that the facts here would invoke the application of the doctrine of laches. Rucker v. Dooley (1868), 49 Ill. 377, 95 Am. Dec. 614. The precise question here involved has never been determined by this court. If it could be conceded that a sheriff's certificate of purchase, executed under the provisions of § 809 Burns 1908, § 766 R. S. 1881, confers on the holder nothing more than the equivalent of the judgment lien, appellees' contention must prevail, for the judgment lien is a creature of statute and is limited in existence to the term of ten years. § 635 Burns 1908, § 608 R. S. 1881. Appellees' counsel relies especially on Robertson v. VanCleave (1891), 129 Ind. 217, 26 N.E. 899, 29 N.E. 781, 15 L. R. A. 68, where the holder of a sheriff's certificate of sale under execution sought, after the expiration of the year for redemption, to redeem the real estate therein described from a sale under a foreclosure decree on a prior lien. Redemption was sought by the certificate holder under § 768 R. S. 1881, § 811 Burns 1908, which conferred such right on the "owner" of the land. It was held that a holder of a sheriff's certificate of sale, was not the owner of the land, though the year of redemption had expired, and consequently could not redeem under § 768, supra, but might do so as a creditor under § 772 R. S. 1881, § 815 Burns 1908. In the original opinion, by Elliott, J., it was said "We adjudge that the holder of a sheriff's certificate acquires a lien, and that he has a right to redeem as lienholder, but not as owner. * * * The owner of a certificate remains, we repeat, the holder of a lien, and of a lien only. * * * The basis of his lien is the judgment, for, without a judgment, his certificate would be absolutely ineffective. * * * it is the lien of the judgment that gives the holder of a certificate a right to redeem. The execution of the certificate is at most a strengthening of the judgment lien, and is no more than a step towards its enforcement. It creates no new character nor any new lien". On petition for rehearing it was held (129 Ind. 231) that "The appellants are right in asserting that with the expiration of the year allowed for redemption the holder of a sheriff's certificate for land sold on execution or decretal order does acquire an equitable estate in the property. * * * It does not follow, however, that he is, by reason of that fact alone, entitled to redeem under § 768. That section provides for redemption by the owner or * * * 'any one holding either the legal or equitable title'. There is a very plain and marked distinction between an estate in lands and a title to lands. The appellants were the owners of an equitable estate in the land in controversy, but, to entitle them to redeem under § 768, they were required to hold either a legal or an equitable title. * * * The expiration of the year allowed for redemption enlarges his rights, in this: That to his lien on the land is added an equitable interest in the land, which his act alone may ripen into a title. His right to a deed, instead of being contingent upon the action of others, has become absolute, and depends solely upon his own action. If he has done nothing to waive his right, no act of another can thereafter, without his consent, deprive him of it, as might have been done by redemption before that time." (Italics ours.) Construing the quoted expressions from the original opinion, in connection with those quoted from the opinion delivered on the petition for rehearing, we are constrained to hold, that after the year for redemption has expired, the holder of a sheriff's certificate is...