Jarrell v. Brubaker
| Decision Date | 06 April 1898 |
| Docket Number | 18,270 |
| Parties | Jarrell, Sheriff, et al. v. Brubaker, Administrator |
| Court | Indiana Supreme Court |
From the Marshall Circuit Court.
Affirmed.
Charles P. Drummond and Charles Kellison, for appellants.
Wood & Bowser and L. W. Royse, for appellee.
Appellee brought this action to quash and set aside as illegal and void a writ in the nature of a venditioni exponas, issued upon a redemption of real estate, and for an injunction. Appellants' demurrer to the amended complaint was overruled. Appellants Lawrence and Matchett filed a cross-complaint against appellee. After issues were joined the court, at the request of parties, made a special finding of the facts, and stated conclusions of law thereon, and over a motion for a new trial, rendered judgment setting aside and quashing said writ of veditioni exponas, and enjoining appellants from issuing said writ or making any sale of the real estate described in said writ and that said real estate is subject to the debts of Nicholas W. Galentine, deceased, and liable to be made assets to pay the debts of said decedent, of which estate the appellee is the administrator, and the title to said real estate, for the payment of said debts, is quieted in said appellee as such administrator.
The errors assigned and not waived call in question each conclusion of law, the action of the court in overruling appellants' demurrer to the amended complaint, and appellants' motion for a new trial.
It is not necessary to consider the sufficiency of the amended complaint for the reason that the same questions are presented by the conclusion of law. The special finding, so far as necessary to the determination of the questions presented, is in substance as follows: On December 7, 1877 Nicholas W. Galentine executed a mortgage to John P. Parks on 80 acres of real estate in Marshall county, Indiana (describing it), to secure a note for $ 2,000.00, being the unpaid purchase money for said real estate, which mortgage was duly recorded June 6, 1878. On July 8, 1882, Parks recovered a judgment in the Marshall Circuit Court against said Galentine for $ 2,274.00 and costs of suit, taxed at $ 62.90, and a foreclosure of said mortgage, against said Galentine, and against appellants John K. Lawrence and James H. Matchett, and others. On September 2, said Parks purchased said real estate at sheriff's sale, on said decree of foreclosure, for $ 2,361.85, the full amount of principal, interest, and cost due thereon, and the sheriff issued to him a certificate of purchase therefor; and afterwards on September 4, 1893, said real estate not having been redeemed, said Parks, for a valuable consideration, sold and indorsed said certificate to appellants Lawrence and Matchett, who held possession thereof until March 3, 1896. On March 28, 1882, the State Bank of Warsaw recovered a judgment in the Kosciusko Circuit Court for $ 1,296.40 and $ 12.30 cost, against Nicholas W. Galentine and Norris D. Heller, and on March 30, 1882, said bank caused a certified copy of said judgment to be filed and recorded in the proper order book in the office of the clerk of the Marshall Circuit Court. On March 13, 1884, said Nicholas W. Galentine died, intestate, in Kosciusko county, Indiana, and Andrew W. Wood was thereafter duly appointed administrator of the estate of said Galentine by the Kosciusko Circuit Court, and continued to act as such until June 13, 1895, when he resigned his trust, and appellee was duly appointed administrator de bonis non of said estate, and is still such administrator. While said Andrew W. Wood was acting as administrator of said estate, the State Bank of Warsaw instituted an action in the Kosciusko Circuit Court against said administrator, to revive said judgment recovered by it March 28, 1882, and for an order for execution thereon; and such proceedings were had in said court in said cause that on April 13, 1892, said bank obtained a judgment and order of court reviving said judgment, and for the issuance of an execution and an order of sale against the 320 acres of land (describing it) owned by said Galentine in Marshall county, Indiana, at the time said judgment was taken, March 28, 1882. The 80 acres purchased by Parks at the foreclosure sale, the sheriff's certificate of sale of which he sold and indorsed to appellants Lawrence and Matchett was a part of said 320 acres. Afterwards, on March 16, 1893, a copy of said judgment of revivor and order of sale was issued out of the Kosciusko Circuit Court by the clerk thereof, to the sheriff of Marshall county, who on June 12, 1893, after a notice of such sale had been given, sold said 320 acres of real estate to said State Bank of Warsaw for $ 2,268.85, and thereupon said sheriff issued a certificate of sale for said real estate to said purchaser, which certificate was recorded in the lis pendens record in the office of the clerk of the Mashall Circuit Court. On June 9, 1894, appellants Lawrence and Matchett, as the owners of said certificate of sale purchased from said Parks for said 80 acres of real estate, filed their written application and were allowed to redeem said 320 acres of land from the sheriff's sale made on the judgment of the State Bank of Warsaw, and then procured the issuance of the venditioni exponas in question, and are proposing to reimburse themselves for the money paid by them to take up the Parks certificate of sale and the amount expended by them in redeeming from said sheriff's sale on the State Bank judgment. On April 21, 1882, said Nicholas W. Galentine owned said 320 acres of real estate, as well as other real estate in Marshall county, Indiana, and on said day executed a warranty deed to appellants Lawrence and Matchett for all of said real estate, and they took possession thereof, and have been in possession of the same. On April 21, 1888, said Andrew G. Wood, then administrator of the estate of said Galentine, filed his petition in the Kosciusko Circuit Court making defendants thereto the widow and children of said deceased, they being his only heirs, and the appellants Lawrence and Matchett and their wives, asking to set aside the conveyance of said real estate to Lawrence and Matchett as fraudulent and void as against the creditors of said Galentine, and subject the same to the payment of his debts. Such proceedings were had in said cause in said court that a judgment was rendered in favor of said Wood, as administrator, and it was decreed that said deed executed by Nicholas W. Galentine on April 22, 1882, to said Lawrence and Matchett was fraudulent and void as to the creditors of said Galentine, and that said appellants Lawrence and Matchett, and each of them, had no right, title, or interest in said lands, and that the title thereto be forever quieted in Andrew G. Wood, as administrator of said estate. On November 9, 1894, Andrew G. Wood, administrator as aforesaid, commenced this proceeding in the Marshall Circuit Court to enjoin the sale of the 320 acres of real estate, sold in satisfaction of the judgment in favor of the State Bank of Warsaw, which is a part of the real estate the conveyance of which to appellants Lawrence and Matchett was set aside as fraudulent by the judgment of the Kosciusko Circuit Court, and the same adjudged subject to the payment of the debts of said Galentine. That all the real estate in Marshall county adjudged by the Kosciusko Circuit Court, as subject to the debts of said Galentine, and the title to which was quieted in the administrator of the estate of Galentine for the payment of said debts, is subject to the payment of the debts of the deceased, and the administrator of said estate has been using due diligence to convert the same into money for the payment of said debts. Appellant Jarrell was sheriff of Marshall county at the time of the commencement of this action, and appellants Lawrence and Matchett are creditors of the estate of said Galentine, deceased, and were such on June 9th, 1894. At the time of the redemption of said 320 acres sold on the judgment of the State Bank of Warsaw, which redemption was made June 9, 1894, by appellants Lawrence and Matchett, there had been no previous redemption from said sale on said judgment, nor had there been any attempt made by any person to redeem from said sale, and that said redemption so made was beneficial to said estate and to its creditors. The court stated as a conclusion of law that the venditioni exponas mentioned in the complaint was illegally issued.
Under our statute any judgment creditor, his executors or administrators or assigns, whose judgment or decree at the time he offers to redeem shall be a lien on the property sold, junior to that upon which the sale was made, is entitled to redeem real estate sold by a sheriff on execution or decretal order at any time within one year from the date of sale. Section 783, Burns' R. S. 1894 (771 Horner's R. S. 1897). In Robertson v. VanCleve, 129 Ind. 217, 26 N.E. 899, it was held by this court that the holder of a sheriff's certificate of sale, had the right to redeem from a sheriff's sale on a judgment the lien of which was senior to that of the judgment upon which such holder's certificate was based, and that such right continued after the expiration of the year for redemption and until the holder of such certificate upon the judgment which was the senior lien demanded a deed from the sheriff; that the right of the holder of such certificate to redeem was that of a judgment creditor under sections 773, 774, Burns' R. S. 1894 (761, 762, Horner's R. S. 1897). The special finding shows that the judgment and decree of foreclosure in favor of Parks was rendered July 8, 1882, while the judgment in favor of the State Bank of Warsaw was taken ...
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