Johnson v. Hess

• Decision Date: 10 October 1890
• Docket Number: 13,987
• Citation: 25 N.E. 445,126 Ind. 298
• Parties: Johnson v. Hess, Sheriff, et al
• Court: Indiana Supreme Court

25 N.E. 445

126 Ind. 298

Johnson v. Hess, Sheriff, et al

No. 13,987

Supreme Court of Indiana

October 10, 1890

Petition for a Rehearing Overruled Dec. 11, 1890.

From the Marion Superior Court.

Judgment is reversed, with costs, and with directions to remand the cause.

T. A Hendricks, A. W. Hendricks, C. Baker, O. B. Hord, A. Baker E. Daniels, A. C. Ayres, E. A. Brown and L. M. Harvey, for appellant.

S. Claypool and W. A. Ketcham, for appellees.

Berkshire C. J. Elliott, J., did not sit in this case.

OPINION

Berkshire, C. J.

The appellant was the plaintiff and the appellees the defendants below.

The complaint was in the nature of a bill in equity to enjoin the officer from levying an execution held by him in favor of his co-appellee upon certain real estate, the title to which was then in the appellant.

The cause was put at issue and tried at special term, and a special finding returned by the court.

Upon the facts as found by the court it stated its conclusions of law, and to the conclusions of law as stated the appellant reserved a proper exception, after which the court rendered final judgment.

Upon appeal to general term the judgment at special term was affirmed, and from the judgment in general term this appeal is prosecuted.

The correctness of the latter judgment depends entirely upon the propriety of the conclusions of law announced by the court at special term upon its finding of facts.

The special finding is quite lengthy, and, notwithstanding, we feel that it is proper to set the same out in full in this opinion to a full understanding of the questions involved, and it is as follows:

"1. On the 18th day of December, 1880, Thomas Graves was seized in fee simple of lot numbered three (3), in Little's subdivision of out-lot eighty-five (85), in the city of Indianapolis, Marion county, Indiana.

"2. On the 18th day of December, 1880, Thomas Graves conveyed the fee simple of the real estate described in the last preceding finding to one William Mankedick, who was described in said deed as H. W. Mankedick, which deed was duly filed for record in the recorder's office of Marion county on the 25th day of July, 1881.

"3. On the 10th day of June, 1881, the said William Mankedick executed to James G. La Fonte a deed of general warranty conveying to said La Fonte the real estate described in the first finding. This deed was duly recorded in the recorder's office of Marion county, Indiana, on the 25th day of July, 1881. In this deed the grantor described himself as H. W. Mankedick.

"4. On the 19th day of August, 1881, James G. La Fonte executed to William Johnson a deed of general warranty, conveying the real estate described in the first finding to the grantee, and this deed was duly recorded in the office of the recorder of Marion county, Indiana, on the 20th day of August, 1881, and thereupon said Johnson entered into possession of said real estate, and has continued in possession of the same until the present time. The consideration named in said deed was $ 1,800, which consisted of $ 600 paid in cash by said Johnson to said La Fonte at the time of the execution of said deed, and the assumption and payment by said Johnson of the two mortgages executed by Thomas Graves to the Middlesex Banking Company, hereinafter named.

"5. On the 18th day of December, 1880, Thomas Graves executed to the Middlesex Banking Company a certain mortgage upon the real estate described in the first finding, to secure the payment to said company of one coupon bond of that date, for the principal sum of $ 1,000, payable on the 18th day of December, 1885, with interest at the rate of eight per cent. per annum, payable semi-annually. The then value of two per cent. of said interest until maturity of said bond was paid by the mortgagor on said bond. And said mortgage was also to secure the payment from the mortgagor to the mortgagee of ten interest coupons attached to said bond executed by the mortgagor to the mortgagee, due in 6, 12, 18, 24, 30, 36, 42, 48, 54 and 60 months, respectively, each for the sum of $ 30. This mortgage was duly recorded in the recorder's office of Marion county, Indiana, December, 31st, 1880.

"6. On the 18th day of November, 1880, William Graves executed to the Middlesex Banking Company another mortgage of the real estate described in the first finding to secure the payment, when they severally became due, of three promissory notes, dated the 18th day of December, 1880, executed by the mortgagor to the mortgagee, and due in 8, 14 and 20 months after date, with interest at the rate of eight per cent. per annum after maturity. This mortgage was duly recorded in the recorder's office of Marion county, Indiana, December 18th, 1880, each note for the sum of $ 63.95.

"7. Upon the bond, interest coupons, and notes executed by said Graves to said Middlesex Banking Company, and secured by the mortgages heretofore referred to, William Johnson, on the 20th day of August, 1881, paid $ 30 of interest. On the 31st of August, 1881, he paid $ 63.95, paying off the first note. On December 19th, 1881, he paid $ 30, the amount of the second interest coupon. On the same day he paid $ 63.95, the amount of the second note. On September 25th, 1882, he paid $ 30.50, the amount of the third interest coupon, and on the same day he paid $ 63.95, the amount of the third note. On the same day he paid $ 1,017.33, being the principal of the bond and the accrued interest thereon up to September 25th, 1882, in all $ 1,299.88, being full payment and satisfaction of said mortgages and the choses in action secured thereby. These payments were made by William Johnson for the purpose of paying off the encumbrances created by said mortgages, and for the purpose of relieving said real estate from the lien thereof, he believing all the time that he was the owner of said real estate in fee simple, and that the title thereto was perfect in him, except as it was encumbered by said mortgages. At the time said Johnson purchased said real estate there were some buildings thereon but the same were not in a tenantable condition, and for the purpose of making them tenantable he expended in the way of necessary repairs of a permanent character $ 309, and of the present value of $ 200. The present value of the real estate described in the first finding, without buildings or improvements, is $ 30 a front foot, or $ 1,350. The value of the improvements upon said real estate, outside of those made by William Johnson, is $ 1,400, making total value $ 2,950, of which value $ 200 represents improvements put on by William Johnson. William Johnson has received as rent upon the real estate described in the first finding from the time he went into possession of said real estate, as follows: Up to and including December 29th, 1883, $ 223.25, and from this date to May 24th, 1884, inclusive, the further sum of $ 65.75. From the last date up to and including April 8th, 1886, the sum of $ 233.55, making the total collection $ 518.55. To the last figures should be added $ 57 interest, from the time William Johnson purchased said real estate up to the present time. He did not live on the real estate himself, but occupied the same by his tenants, and used due diligence from the date of his purchase until this time in procuring tenants to occupy the same, and in obtaining the highest rent he could procure for the same.

"8. Since the purchase of said real estate described in the first finding, by William Johnson, he has paid taxes on the same and the improvements thereupon as follows: (The amounts paid for city, township, and State purposes, for the different years, are then stated, the sum total being $ 146.44, to which should be added the sum of $ 19 as interest).

"9. On the 7th day of March, 1874, Miley Hazard executed to the Union Mutual Life Insurance Company his mortgage, of that date, on lot numbered three (3), in Foster and Harman's subdivision of lots numbered 12, 13, 14 and 15, in G Sherman's subdivision, of a part of the north half (1/2) of the east half (1/2) of the northeast quarter (1/4) of section thirty-five (35), township sixteen (16) north, of range three (3) east, situate in Marion county, Indiana, to secure a loan then made by the mortgagee to the mortgagor, of $ 2,500, and the interest thereon; said loan maturing five (5) years after date. Said mortgage was duly recorded in the recorder's office, of Marion county, Indiana, on March 11, 1874. On the 24th day of June, 1875, said Hazard conveyed said mortgaged premises to Joseph M. Beck, and in and by said deed said Beck agreed to pay said mortgage. That afterwards said Beck sold and conveyed said real estate to John F. Council. That afterwards said Council sold and conveyed said real estate to William Mankedick, hereinbefore mentioned, and in and by said deed said Mankedick assumed and agreed to pay said mortgage; that afterwards, and on the 2d day of June, 1879, said Union Mutual Life Insurance Company filed in the Superior Court of Marion county its complaint, numbered 24,735, to which said Miley Hazard, the said William Mankedick, and others, were made parties defendant, and said William Mankedick was duly served with process therein. That afterwards such proceedings were had in said cause that on the 18th day of June, 1879, by the consideration of said Superior Court, said Union Mutual Life Insurance Company recovered a personal judgment against the said William Mankedick and others in the sum of $ 3,358.92, and there was a decree foreclosing said mortgage of the real estate therein described, and ordering the same to be sold to pay said judgment and the costs of suit. The decree also provided that after the sale of the real estate therein named the residue, if any, should be levied of...