Martin v. Berry
| Decision Date | 16 October 1902 |
| Docket Number | 19,584 |
| Citation | 64 N.E. 912,159 Ind. 566 |
| Parties | Martin et al. v. Berry |
| Court | Indiana Supreme Court |
Rehearing Denied December 17, 1902.
From Huntington Circuit Court; J. C. Branyan, Judge.
Suit by William A. Berry against Marquis D. L. Martin and others to enjoin the sale of real estate under a mechanic's lien judgment. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under § 1337u Burns 1901.
Affirmed.
J. T Alexander and J. M. Hatfield, for appellants.
B. M Cobb and C. W. Watkins, for appellee.
This action was instituted on January 28, 1899, by appellee to enjoin appellants, Marquis D. L. and Elmer B. Martin, together with Alonzo A. Crandal, sheriff of Huntington county, Indiana, from selling the north half of lot number sixty-two in the city of Huntington, county aforesaid, under a decree foreclosing a lien created under the mechanic's lien law for material furnished. A trial resulted in appellants being perpetually enjoined from selling said premises under the said decree. To reverse this judgment this appeal is prosecuted.
The facts material to the cardinal question involved herein, as the same are disclosed by the complaint, and under the special finding, are, in substance, as follows: In February 1878, Jacob Wintrode, the owner thereof, sold and conveyed lot number sixty-two in the original plat of the city of Huntington to Elizabeth Hullibarger, Roxana Helser, and Mary E. Helser. Roxana and Mary E. Helser, under the provisions of the deed of conveyance, were invested with the fee simple of the said premises, and the said Elizabeth Hullibarger with the use thereof so long as she remained a widow. At the time of this conveyance by Wintrode, said grantees executed to him an indemnifying mortgage on the premises to save him harmless against any liability arising out of a certain mortgage. This latter mortgage was subsequently foreclosed, and Wintrode was compelled to pay the judgment rendered in the foreclosure proceedings, to the amount of $ 262. On April 11, 1878, Roxana and Mary E. Helser, together with Andrew W. Helser, husband of Roxana, mortgaged said lot to John Skiles, to secure the payment of a note of $ 100. This note and mortgage were subsequently assigned for value to one B. M. Cobb. In the summer of 1885 Roxana and Mary E. Helser, the owners in fee of said lot, made improvements on a house situated on the north half thereof; and in making the same they purchased material to the amount of $ 103.69 from appellants Martin & Martin, and within sixty days after furnishing said material the latter filed a notice in the recorder's office of Huntington county, Indiana, of their intention to hold a lien on the north half of said lot for the amount of material so furnished, and on November 5, 1886, five days before the expiration of the year allowed by law for foreclosing said lien, Martin & Martin instituted an action in the Huntington Circuit Court against Roxana Helser and her said husband Andrew W. Helser, Elizabeth Hullibarger, and Mary E. Helser, who were the sole defendants in the action, to foreclose said lien, and on April 6, 1891, such proceedings were had therein that they recovered a personal judgment against Roxana and Mary E. Helser for $ 135.80, together with costs, and a decree of foreclosure as against all of the defendants except Mrs. Hullibarger, who had died after the commencement of the action, and before the rendition of the final decree. This judgment has not been satisfied. On April 4, 1892, appellee, being the holder of each of the aforesaid mortgages, by virtue of assignments, commenced an action in the Huntington Circuit Court to foreclose the mortgage liens, making Roxana Helser, together with her husband, and Mary E. Helser, defendants to said action. Martin & Martin were not made parties thereto. The Helsers appeared in court, and filed an answer admitting the averments of the complaint; and such proceedings were had therein as resulted, on the said 4th day of April, in appellee recovering a judgment for $ 974 against the Helsers, and a foreclosure of the mortgage against lot sixty-two. On May 7, 1892, said premises, under the latter foreclosure proceedings, were sold at sheriff's sale to appellee for $ 900. Previous to April 4, 1892, the mortgaged premises had been sold for delinquent taxes, and appellee, by virtue of the tax certificates issued under the said...
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