Jefferson v. Coleman
| Decision Date | 21 April 1887 |
| Docket Number | 11,427 |
| Citation | 11 N.E. 465,110 Ind. 515 |
| Parties | Jefferson v. Coleman |
| Court | Indiana Supreme Court |
From the Tippecanoe Superior Court.
Judgment reversed, with costs.
G. O Behm and A. O. Behm, for appellant.
The record before us presents the following facts: On the 28th day of December, 1874, John C. Bansemer, a married man, being the owner of a tract of land in Tippecanoe county, executed a mortgage thereon to John Purdue, to secure an indebtedness of five thousand dollars. On the 20th day of November, 1875 Sheldon recovered a judgment against Bansemer, and on the 5th day of April, 1879, Bansemer's interest in the mortgaged land was sold at an execution sale to James W. Jefferson, to satisfy the Sheldon judgment. By his purchase at the execution sale, Jefferson became the owner of the undivided two-thirds of the land in question, subject to the Purdue mortgage. Subsequently, Bansemer and wife conveyed, by warranty deed, the undivided one-third which, under the statute of March 11th, 1875, vested in Mrs. Bansemer, to Mary A. Jefferson. In this manner, James W. and Mary A. Jefferson became the owners and went into possession of the entire tract subject to the mortgage to Purdue. At the September term, 1882, the Purdue mortgage was foreclosed, the mortgage debt amounting at that time, with interest, to over seven thousand dollars. Mrs. Jefferson was not notified of the foreclosure proceedings, and as to her the decree was ineffectual. On the 28th day of October, 1882, Coleman purchased the land for two thousand dollars at a sale made in pursuance of the above mentioned decree. After the sale to Coleman, Mrs. Jefferson filed a petition alleging that she was the owner of the undivided one-third of the land and prayed partition. Coleman, holding a certificate of purchase under the Purdue decree, filed a cross bill, setting up the facts substantially as above, and asked that Mrs. Jefferson be required to redeem, or, in default thereof, that his title be quieted. After overruling a demurrer to the cross bill, the court at the final hearing decreed, in effect, that Mrs. Jefferson, or some one in her behalf, be required to redeem from the sale to Coleman within a period of six months, by paying two thousand dollars, with ten per cent. interest from the date of the sale, or, in default thereof, to be forever barred and enjoined from asserting any right or title to the land in question, or any part thereof.
The question presented is, whether under the facts disclosed, it was competent to bar the interest of Mrs. Jefferson by proceedings in the nature of a strict foreclosure. On her behalf, the argument is that her interest in the premises could only be affected or extinguished by a foreclosure and sale under the Purdue mortgage. The appellee has not favored us with a brief.
In our State, as in all those States where a mortgage is regarded as creating only an equitable lien, and not as a conveyance of the legal estate, the remedy by strict foreclosure can only be resorted to under special and peculiar circumstances.
At best it is a harsh remedy, and on account of its severity, and the anomalous relation it bears to our conception of the interest of a mortgagee, and the statutory method of foreclosure, it should be pursued only in cases where a statutory foreclosure and sale would be inappropriate. A strict foreclosure proceeds upon the theory that the mortgagee, or purchaser has acquired the legal title, and obtained possession of the mortgaged estate, but that the right and equity of redemption, of some judgment creditor, junior...
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