Loeb v. Tinkler

Decision Date09 April 1890
Docket Number14,113
Citation24 N.E. 235,124 Ind. 331
PartiesLoeb et al. v. Tinkler
CourtIndiana Supreme Court

Petition for a Rehearing Overruled June 18, 1890.

From the Tippecanoe Circuit Court.

Judgment affirmed, with costs.

J. F McHugh, for appellants.

OPINION

Olds J.

This is an action brought by the appellants against the appellee for the partition of certain real estate described in the complaint.

The appellee answered the complaint by general denial, and filed a cross-complaint, alleging that, on the 11th day of May, 1874, one James T. Moore executed a mortgage to one Consider Tinkler upon the real estate described in the complaint, said Moore being then the owner of the said real estate, to secure the payment of two promissory notes aggregating the sum of $ 673.65; that said mortgage was duly acknowledged and recorded in Mortgage Record 16, on page 449, of said county, on the 16th day of June, 1874; that afterwards said note and mortgage were assigned to said Emily A. Tinkler, the appellee, by endorsement; that afterwards, on December 14th, 1881, one Henry Rosenthal recovered a judgment in the Tippecanoe Circuit Court against said Moore for $ 123.25; that, on March 8th, 1882, a writ of execution issued on said judgment; that a levy was made on said real estate described in the complaint, and, after being duly advertised, was sold to Gus Loeb and Lazarus Hirsh on June 5th, 1883, they being the highest and best bidders therefor; that afterwards, on the day of -----, 1884, the sheriff of said county made and executed and delivered to said purchasers a deed for said real estate.

It is further averred that, on the 9th day of June, 1884, the appellee brought suit for the foreclosure of said mortgage against said James T. Moore as mortgagor, and said Gus Loeb and Lazarus Hirsh as subsequent purchasers; that she recovered a judgment and was granted a decree of foreclosure against all of said parties; that an order of sale was issued on said decree; that said real estate was duly sold, and she became the purchaser, and the real estate not being redeemed the sheriff of said county executed to her a deed. And it is further averred that said Ada Loeb is the wife of Gus Loeb, and Sarah Hirsh is the wife of Lazarus Hirsh, and that they were not made parties to said foreclosure proceedings. Prayer for a decree of strict foreclosure against said Ada Loeb and Sarah Hirsh.

Appellants answered the cross-complaint by general denial, and the cause was submitted to the court for trial without the intervention of a jury. The parties made an agreed statement of facts, which was entered of record in the cause, no evidence being introduced, but all the facts were agreed upon.

The agreed statement of facts is, substantially, as alleged in the cross-complaint: That Moore owned the real estate in controversy and described in the complaint and cross-complaint; that he executed a mortgage on the same to Consider Tinkler, and he assigned it to the appellee; that it was duly recorded; that after the execution of the mortgage the judgment was recovered against Moore execution issued thereon and levied upon the land, and the land sold and purchased by Gus Loeb and Lazarus Hirsh; the land not being redeemed a deed issued to them; that after the deed issued in pursuance of the sale on execution to Loeb and Hirsh, the appellee brought suit to foreclose the mortgage against Moore and...

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