Ludlow v. Ludlow
| Decision Date | 08 January 1887 |
| Docket Number | 12,545 |
| Citation | 9 N.E. 769,109 Ind. 199 |
| Parties | Ludlow, Guardian, v. Ludlow et al |
| Court | Indiana Supreme Court |
From the Dearborn Circuit Court.
The judgment is affirmed, with costs.
G. M Roberts and C. W. Stapp, for appellant.
J. K Thompson, for appellees.
This was a suit by appellant to foreclose a mortgage on certain real and personal estate, in Dearborn county, alleged to have been executed by appellees Edward S. and Julia E. Ludlow, to the appellant, and to collect the debt secured thereby. It was alleged in appellant's complaint, among other things that appellee Joseph H. Burkam claimed to have liens upon and an interest in, the mortgaged real and personal estate, which pretended liens and claims were all inferior to appellant's mortgage lien and were false, and of no virtue and effect whatever, and appellee Burkam was made a defendant to the suit that he might answer as to his interest in such real and personal estate. Appellee Burkam answered by a cross complaint, in two paragraphs. Appellant answered Burkam's cross complaint by a general denial thereof, and by a second, third and fourth special or affirmative answers. Burkam's demurrer to the second, third and fourth paragraphs of appellant's answer to the cross complaint was sustained by the court. The issues joined were heard by the court, and a finding was made for appellant as against the appellees Edward S. and Julia E. Ludlow, for the amount due on their note and mortgage, and for the foreclosure of the mortgage, etc. The court further found for appellee Burkam, on his cross complaint, against his co-appellees and appellant, that his tax deed was ineffectual to convey to him the title to the mortgaged property, but that it transferred to him the lien of the State on such property to secure the payment of the amount found due him for purchase-money, taxes paid, penalties and costs, and that such lien was superior and prior to appellant's mortgage lien, and ought to be foreclosed. In accordance with its findings herein, the court made and entered its final judgment and decree.
The first error assigned here by appellant is the overruling of his demurrer to each paragraph of Burkam's cross complaint. It is shown by the record, that appellant filed a demurrer to each paragraph of such cross complaint, and that such demurrer was "argued by counsel, and submitted to and taken under advisement by the court;" but the record wholly fails to show that the court ever made any ruling on such demurrer. The first error, therefore, presents no question for our decision.
Appellant has assigned as error, that the court erred "in neglecting and refusing to pass upon appellant's demurrer to each paragraph of Burkam's cross complaint." No such neglect or refusal of the court is shown by the record of this cause. All that the record discloses on this subject is, that, pending the court's advisement as to his demurrer, appellant effectually waived, as he had the right to do, any ruling on such demurrer by filing his answers to the merits in bar of Burkam's cross complaint. This error, therefore, presents no question for our decision.
Another error assigned by appellant is, that neither paragraph of Burkam's cross complaint states facts sufficient to constitute a cause of action. This assignment of error presents no question here. Where the sufficiency of a complaint or cross complaint is called in question for the first time by an assignment of error here, it is settled by our decisions that the alleged error can be predicated only upon the complaint or cross complaint, as an entirety, and not upon the separate paragraphs thereof. Reyman v. Mosher, 71 Ind. 596. But if the rule were otherwise, it is clear, we think, that in each paragraph of his cross complaint Burkam stated a cause of action sufficient to withstand a demurrer, and good beyond doubt when challenged for the first time by an assignment of error here.
In each paragraph of his cross complaint Burkam alleged that he was the owner of the mortgaged property, under a tax deed pursuant to a tax sale of the property, which antedated the date of appellant's mortgage thereon, and that his co-appellees and appellant each claimed an interest in such property, which was adverse to Burkam's title thereto. These facts alone were sufficient to make each paragraph of Burkam's cross complaint a good cause of action, even on demurrer, under section 1070, R. S. 1881. The provisions of that section have always been construed liberally by this court. Second Nat'l Bank v. Corey, 94 Ind. 457; Conger v. Miller, 104 Ind. 592, 4 N.E. 300; Johnson v. Taylor, 106 Ind. 89, 5 N.E. 732; Rausch v. Trustees, etc., 107 Ind. 1, 8 N.E. 25.
Appellant has also assigned, as error, the sustaining of Burkam's demurrer to the second, third and fourth paragraphs of his answer to Burkam's cross complaint. Of these rulings appellant's counsel only complain here, as we understand their argument, of the sustaining of Burkam's demurrer to the third and fourth...
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