Jenkins v. Newman
| Decision Date | 04 February 1890 |
| Docket Number | 13,700 |
| Citation | 23 N.E. 683,122 Ind. 99 |
| Parties | Jenkins et al. v. Newman |
| Court | Indiana Supreme Court |
From the Ripley Circuit Court.
Judgment affirmed, with costs.
E. P Ferris, W. W. Spencer and J. S. Ferris, for appellants.
J. G Berkshire, J. B. Rebuck and C. H. Willson, for appellee.
Olds J. Berkshire, J., took no part in the decision of this cause.
This is an action by the appellants against the appellee to quiet title and to recover the possession of real estate.
The complaint is in two paragraphs, one to quiet title, the other for the possession of the real estate. The answer is a general denial.
There was a special finding of facts by the court at the request of the plaintiffs, and conclusions of law were stated. The appellants excepted to the conclusions of law, and moved for a judgment on the special finding of facts, which was overruled, and exceptions taken and errors assigned.
The only portion of the real estate in controversy on this appeal is 23/27 of the S. E. 1/4 of section 34, town. 8, range 10, which was given to the appellee by the finding and judgment of the circuit court, and the only questions presented and discussed are presented by the exceptions of Nancy A. Jenkins to the conclusions of law, and her motion for a judgment as to said land.
The special finding of facts is intermingled with too much of the evidence which is set out with the facts found for us to attempt to set it out in full, and hence we will consider the questions as they are severally presented by counsel.
December the 27th, 1865, Alexander Jenkins, the husband of Nancy A. Jenkins, became the owner of said 23/27 of said quarter section, deriving his title to the undivided one-third of said quarter section by conveyance from his mother, Jane Jenkins, who derived her title to the same by inheritance from her late husband, Adam Jenkins, deceased. December 27th, 1865, Alexander Jenkins and his wife mortgaged this land, together with other land, to secure the payment of a note of $ 3,500 of even date with the mortgage, given to Eli Murdock by said Alexander Jenkins. On the 10th day of December, 1868, a suit was pending in the Ripley Circuit Court, wherein Jane Jenkins was plaintiff, and Alexander Jenkins and Nancy Jenkins, the appellants herein, and Eli Murdock were defendants, and all of said parties defendants were duly summoned to answer the complaint of said Jane Jenkins, and in the complaint of said Jane Jenkins in said action it was alleged, among other things, that by a fraudulent conspiracy on the part of all of said defendants, she had been prevailed upon by them to convey her undivided one-third interest in said one-fourth section of land of which her husband died the owner, to Alexander Jenkins, and that the object of said defendants, as confederates, was to have her make said deed to Alexander Jenkins, to enable him and his wife, Nancy A. Jenkins, to mortgage it to the said Eli Murdock, to whom said Alexander Jenkins was largely indebted, and to thereby make secure said indebtedness; that said deed was made by Jane, on the 26th day of December, 1865, and that on the next day, in pursuance of such fraudulent conspiracy of all of said defendants, the said Alexander and Nancy A. Jenkins executed said mortgage to said Murdock to secure said debt of $ 3,500 (setting out a copy of the mortgage), and asked that said mortgage be set aside and declared void in so far as the same affected her rights. In said suit Eli Murdock filed a cross-complaint upon his said note and mortgage, which said Jane asked to have cancelled, against his co-defendants Alexander and Nancy A. Jenkins, also against the plaintiff therein, Jane Jenkins, alleging that Jane was claiming some interest in the land, and asking for judgment on the note and foreclosure of the mortgage. No process was issued on the cross-complaint.
Jane and Alexander Jenkins appeared and answered the cross-complaint. Nancy A. Jenkins did not plead to the cross-complaint, and in that action Murdock recovered a personal judgment against said Alexander Jenkins for $ 3,911.45, and a decree of foreclosure of said mortgage as to Alexander Jenkins and Nancy A. Jenkins, appellants herein.
It is contended by appellants' counsel that the decree of foreclosure is not binding upon Nancy A. Jenkins, for the reason that no summons was issued on the cross-complaint and served upon her. There is nothing in this objection. The original action related to the mortgage in question. The complaint set out the mortgage and asked to have it set aside, and the cross-complaint was germane to the complaint. The complaint asked to have the mortgage set aside, and the cross-complaint asked to have a foreclosure of the same mortgage; and the mortgagors having been duly summoned to answer the complaint there was no necessity of summons issuing on the cross-complaint; they were in court for all purposes relating to the mortgage, and would be bound by a decree, either setting it aside or foreclosing it.
In the case of Pattison v. Vaughan, 40 Ind. 253, the court says: "We think that as to matters contained in the original complaint, if not in all cases, the defendants to the original complaint, when served with process thereon, as well as the plaintiff therein, must be regarded as in court for all the purposes of the action, whether the matters in controversy arise upon the original complaint, or upon the answer or cross-complaint." This language is quoted and approved in the case of Bevier v. Kahn, 111 Ind. 200, 12 N.E. 169. In the case of Lewis v. Bortsfield, 75 Ind. 390, the court says: "It is only where one of two or more defendants, after personal service, makes default in the original action, and another defendant files a cross-complaint, setting up new matter not apparent on the face of the original complaint, that the defaulting defendant must be served with process issued on such cross-complaint, before any judgment by default can be taken or rendered against him on such cross-complaint."
The principle laid down in the above cases, from which we have quoted, clearly covers the question involved. The original complaint attacked the mortgage, and set out a copy of it, and the cross-complaint alleged its validity, and asked a decree of foreclosure. There was no necessity for issuing a summons on the cross-complaint and serving it upon the defendants named in it. The judgment rendered on the cross-complaint was binding upon the parties to the complaint. Wadkins v. Hill, 106 Ind. 543, 7 N.E. 253; AEtna Life Ins. Co. v. Finch, 84 Ind. 301.
In February, 1869, Eli Murdock died, leaving a widow and several children, and quite an amount of property in addition to the judgment and decree of foreclosure hereinbefore referred to. The heirs made settlement among themselves, making a division of most of the property, but leaving this judgment and another judgment in favor of the estate undivided, but to be divided among the children when collected, the widow to take no part of it. This agreement was in parol. Afterwards, in September, 1875, letters of administration issued on the estate of said Eli Murdock to one John Hughes. Hughes at the time was also administrator of the estate of one of the sons of Eli Murdock, who died after the division of his father's estate, and was interested in the collection of the judgment. In January, 1876, Hughes, as administrator of the estate of Eli Murdock, caused an order of sale to issue on the judgment and decree of foreclosure, and the real estate mortgaged and ordered sold by the decree was duly sold and purchased by the said administrator for the sum of $ 4,000, said administrator having previously obtained an order of court to purchase the same. He receipted the amount of his bid on the judgment, and a certificate of purchase was issued to him by the sheriff. Afterwards a deed issued to him. Objections are made to the regularity of these proceedings, and it is contended that there had been a division of the estate between the heirs, and that the judgment belonged to them, and that the judgment was not properly receipted. The administrator was appointed by order of court, the sale was made and he purchased the land by order of court. The heirs are not objecting to the regularity of the proceedings. It is immaterial to...
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