Killian v. Andrews
| Decision Date | 17 March 1892 |
| Docket Number | 15,443 |
| Citation | 30 N.E. 700,130 Ind. 579 |
| Parties | Killian v. Andrews et al |
| Court | Indiana Supreme Court |
From the Cass Circuit Court.
Judgment affirmed.
D. D Dykeman, W. T. Wilson and G. C. Taber, for appellant.
D. P Baldwin, for appellees.
The appellee Lucy Ann Andrews brought this action against the appellant to quiet her title to a tract of land.
The complaint was answered by a general denial, and also by a second paragraph, which does not require to be noticed.
The appellant also filed a cross-complaint, in which he asked for the foreclosure of a lien against the land acquired by him under certain drainage proceedings.
Issues were joined on the cross-complaint by a general denial and other defences, and the cause tried by the court, who, at the request of parties, made a special finding of the facts and conclusions of law.
So much of the special finding as we deem necessary to present the questions of law which must control the decision of this case is as follows:
That William H. Stanley, being the owner of the land described in the complaint, mortgaged the same to Wilhelmina Cochran on the 16th day of July, 1877, for $ 3,000; that said mortgage was duly recorded, and was afterwards, at the April term, 1884, of the Cass Circuit Court, foreclosed and the land sold July 5, 1884, by the sheriff, on the decree of foreclosure, to Quincy A. Myers; that Myers received a certificate of purchase from the sheriff, and on the 15th day of the month had it recorded in the lis pendens record of Cass county.
That in September, 1884, Elizabeth Cost and Henry Cost filed their petition in the Cass Circuit Court, praying for the establishment of a ditch, setting out in their petition therefor that the lands described in the complaint would be benefited by the construction thereof; that afterwards such other proceedings were had in said circuit court, in and about the matter of such petition for drainage, as that, on the 22d day of December, 1884, the ditch was established by an order of the court, and the assessment of benefits before that time made by the ditch commissioners was affirmed, and the ditch was ordered to be constructed; that at the time of the filing of the petition, and during the pendency of the proceedings, the lands described in the complaint appeared on the tax duplicate of the county, and on the transfer books, in the name of William Stanley, and the lands were described in the petition for drainage as belonging to him; that neither the mortgagee nor Myers was mentioned in the petition, or the notices of the pendency thereof, or the notices of assessment, as being the owner of or having any interest in the lands.
It is also made to appear from the findings that the lands described were assessed for the construction of the drain, and were afterwards sold by the county treasurer to the appellant for the amount of the assessment, penalty and interest; that in the year 1883, the lands were sold for taxes and a tax certificate issued to one McGovern, who, in 1885, received a tax deed; that on the 4th day of August, 1885, Myers obtained a sheriff's deed for the land, which was, in proper time, duly recorded. In December, 1885, Myers conveyed the land to one Jasper N. Booth, and in June, 1887, McGovern conveyed his interest in the land by a quitclaim deed to Booth. On the 26th day of August, 1887, Booth and wife and William H. Stanley and wife conveyed the land to the appellee; that at the time she purchased the land and took the deed she required and obtained from her grantors a bond and an agreement to indemnify her should the ditch assessment be a lien on the land, and she compelled to pay it.
The court concluded the law to be: "That the original assessment for the construction of the ditch is no lien upon the land and is a cloud upon the plaintiff's title."
This conclusion was excepted to, and presents the principal question in the case.
The petition for drainage mentioned in this case was evidently intended to conform to the provisions of the act of March 8, 1883, now section 1175 of Elliott's Supp., which provides that "Such petition shall be sufficient to give the courts jurisdiction over the lands described therein, and power to fix a lien thereon if they are described as belonging to the person who appears to be the owner according to the last tax duplicate or record of transfer kept by the auditor of the county where the same is situate."
It is not disputed but that the petition was drawn in strict conformity with the provisions above quoted, and the proceedings regular; and that if Stanley had continued to own the land it would have been bound by the assessment made for the construction of the ditch. But it is earnestly contended that, the land having been sold at sheriff's sale to Myers some two months prior to the time of filing the petition for drainage, his title, when he obtained a sheriff's deed, related back to a time anterior to the commencement of the proceedings for drainage; and that neither he nor those claiming under him are affected by a suit or proceeding to which they were not parties, and of which they had no notice.
The act under consideration makes no provisions for making lien-holders parties to such proceedings or giving them notice, except the notice required upon the filing of the petition. This is in harmony with the provision that it was only necessary to describe the lands as belonging to the one in whose name it appears on the tax duplicate, to enable the court to take jurisdiction and fasten a lien upon the land.
It was competent for the Legislature to provide how the lands should be described in the petition, and what notice should be given.
In speaking of a notice of this kind, this court, in the case of Carr v. State, etc., 103 Ind. 548, 3 N.E. 375, said: "It is competent for the Legislature to provide what kind of notice shall be given, and where the notice is of the character prescribed by statute, it is sufficient."
In Scott v. Brackett, 89 Ind. 413, it is said ...
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