Luken v. Fickle

• Decision Date: 30 April 1908
• Docket Number: No. 6,069.,6,069.
• Citation: 42 Ind.App. 445,84 N.E. 561
• Parties: LUKEN et al. v. FICKLE et al.
• Court: Indiana Appellate Court

42 Ind.App. 445

84 N.E. 561

LUKEN et al.

v.FICKLE et al.

No. 6,069.¹

Appellate Court of Indiana.

April 30, 1908.

Appeal from Circuit Court, Starke County; John C. Nye, Judge.

Action by the Union Central Life Insurance Company against William Casey and others in which William Luken filed a cross-bill. The property was subsequently purchased by David D. Fickle, and from an order of distribution William Luken and others appeal. Reversed and remanded.H. R. Robbins and W. C. Pentecost, for appellants. D. B. McConnell and E. B. McConnell, for appellees.

MYERS, J.

The transcript before us sets for the record of a suit commenced in April, 1903, by the Union Central Life Insurance Company upon a certain promissory note made to that company in 1898 by William Casey, and upon a mortgage on certain land in Starke county of the same date, executed by the said William Casey and Mary E. Casey, his wife, to secure the payment of said note. In that suit the mortgagors and William Luken, Jeremiah Casey, John Casey, Anton J. Lintz, John Cerveney, and August Sonnenberg were also made defendants as persons claiming to hold liens or some interest in the mortgaged real estate which were alleged in the complaint to be junior to the lien of said company's mortgage. On June 18, 1903, the defendants Luken and Sonnenberg answered, setting up personal judgments in their favor, which were averred to be liens on the same real estate. At the same time Jeremiah Casey and John Casey each filed a cross-complaint, that of Jeremiah being based upon a promissory note made to him by William Casey in April, 1899, and a mortgage dated April 14, 1899, upon the same real estate executed by William Casey alone. The cross-complaint of John Casey was based upon a promissory note made to him by William Casey, January 8, 1901, secured by a mortgage of the same date upon the same real estate, and executed by William Casey alone. On October 13, 1903, William and Mary E. Casey answered the plaintiff's complaint by general denial, and Sonnenberg and Luken each demurred to the cross-complaint of Jeremiah and John Casey. January 5, 1904, all the parties appearing, it was agreed by all of them that the cause presented by the complaint of the insurance company should be, and the same was, submitted for trial, finding, judgment, and decree as between the plaintiff and all the defendants; and upon the finding then made, that plaintiff's mortgage was a senior lien on the mortgaged premises to that of either and all of the defendants, judgment was rendered for the plaintiff, and its mortgage foreclosed, and also the equity of redemption of each and all of said defendants, with judgment over against William Casey. There was at that time no finding or judgment upon the claims of the defendants as between themselves, but on the same day the demurrers of Luken and Sonnenberg to the cross-complaints of Jeremiah and John Casey were overruled, and Luken and Sonnenberg were ruled to answer those cross-complaints. January 14, 1904, Luken and Sonnenberg answered each of said cross-complaints, and Jeremiah and John Casey separately demurred to the answers, which demurrers were overruled January 26, 1904. Replies were filed to said answers, and William and Mary Casey filed a reply. March 22, 1904, Luken answered the cross-complaints of Jeremiah and John Casey, alleging amongst other things that under the decree of foreclosure of January 5, 1904, above mentioned, the land was sold by the sheriff March 12, 1904, and that he at that sale purchased the land for $3,022.56, and received the sheriff's certificate of sale. Thereupon Jeremiah and John Casey filed demurrers to these answers of Luken, and March 28, 1904, the demurrers were sustained. On June 9, 1904, the cause was submitted to the court for trial on the cross-complaints of Jeremiah and John Casey, and a special finding being requested, the case on June 10, 1904, was taken under advisement by the court. On May 22, 1905, the case being still held under advisement by the court, David E. Fickle filed his notice to be substituted as a defendant and cross-complainant instead of John and Jeremiah Casey, as the purchaser and assignee of their mortgages. May 24, 1905, Mary E. Casey filed a petition, to which David D. Fickle demurred. June 2, 1905, the court sustained the motion of Fickle to be substituted to the rights of cross-complainants John and Jeremiah Casey. October 24, 1905, the demurrer of Fickle to the petition of Mary E. Casey was sustained. November 7, 1905, Mary E. Casey filed her amended petition, in which she alleged that William Casey, on January 5, 1904, was the owner of the real estate in question, describing it, and on that day the Union Central Life Insurance Company obtained a judgment in foreclosure on a mortgage executed by William Casey and petitioner on said land; that on March 12, 1904, said land was sold by the sheriff of Starke county to satisfy that mortgage; that within one year thereafter said land was redeemed by a judgment creditor, and on May 22, 1905, resold on an execution venditioni exponas; that on this date there was a surplus of $1,200, which amount was still in the hands of the clerk of said court for distribution; that at the time of the redemption from the judgment in the foreclosure in favor of said insurance company, and at the time of the sale under the same, she was the wife of said William Casey; that she never had received her distributive share of his real estate; and that said land was all that he owned, and was worth $7,200. Wherefore she prays an order of court setting over to her said surplus as her distributive share of her husband's real estate. On the same day Mary E. Casey filed her application asking that the venue be changed from the regular judge. November 9, 1905, said Lintz filed his petition showing in a like manner the existence of said surplus,and setting up his judgment against William Casey, and asking that it be declared a prior lien, and that a part of the surplus sufficient to pay his lien be set over to him. On the same day the application for a change of venue from the judge was overruled. On November 10, 1905, Luken filed an additional pleading in which he stated in substance that since the commencement of the action and the trial thereof he has become the owner of said land, which ownership was evidenced by a sheriff's deed executed to him by the sheriff of Starke county May 22, 1905, which was recorded, etc., being the same land against which Fickle was by his cross-complaints seeking a foreclosure; that said deed was executed upon a venditioni exponas sale of said land by the last redemptioner; that Fickle was the assignee of John and Jeremiah Casey of the mortgages which were herein sought to be foreclosed; that the interest of said John and Jeremiah Casey, as mortgagees, had been adjudicated in the original action of the insurance company in which judgment was rendered, execution issued, and sale thereunder regularly had, and there had been a redemption from said sale and a resale upon venditioni exponas; that foreclosure of said mortgage should not be had. Wherefore, etc., he prays judgment.

January 22, 1906, the court, having had the cause under advisement since the trial (June 10, 1904), rendered a special finding, stating the facts in substance as follows: The institution of the suit by the insurance company, its character, and parties were shown; that the defendants appeared, and the cause being at issue on plaintiff's complaint, the same was tried January 5, 1904, and finding and judgment had and rendered for the insurance company, its mortgage foreclosed, and an order of sale made; that William Casey, on April 14, 1899, executed his note described to Jeremiah Casey for $915, and his mortgage on the same lands, which mortgage was recorded, etc.; that on January 8, 1901, William Casey executed his note described for $1,000, and his mortgage on the same lands to John Casey, which mortgage was recorded, etc.; that on April 6, 1901, August Sonnenberg recovered judgment against William Casey for a sum stated; that on January 8, 1901, Andrew J. Lintz recovered judgment in the court below for a sum stated against William Casey and Joseph Casey; that on January 16, 1901, the defendant John Cerveney recovered judgment in said court for $309.84 against Andrew and William Casey; that each of said judgments were recorded, etc.; that on March 13, 1905, pending the finding in the court below, John and Jeremiah Casey sold and assigned their respective mortgages to David D. Fickle for a valuable and sufficient consideration, which assignment was duly recorded; that on May 5, 1905, Fickle filed his petition in this cause, to be substituted as a party cross-complainant instead of Jeremiah and John Casey, and was by said order of the court so substituted and was entitled to have any judgments to which they would have been entitled, respectively, had the assignment not been made; that there was due said Fickle on the Jeremiah Casey mortgage $1,333.08, and on the John Casey mortgage Fickle was entitled to recover $1,287.55.

On these facts the court stated its conclusions of law: (1) That Fickle should recover upon the Jeremiah Casey mortgage the sum of $1,333.08, and should have foreclosure of said mortgage and an order of sale of the real estate, and that the lien of the judgment should be and date from April 11, 1899. The second conclusion relates to the John Casey mortgage. Exceptions to the conclusions of law by Luken. On the same day Fickle filed his petition in which he stated that he was the owner of the Jeremiah and John Casey mortgage, the foreclosure of which had been ordered in this cause; that upon the order for foreclosure of the plaintiff's (insurance company) mortgage made in this case the mortgaged property was sold March 12, 1904, to William Luken; that he redeemed the real estate from that sale May 25, 1905, and had the same...