Masters v. Templeton

• Decision Date: 03 January 1884
• Docket Number: 10,834
• Citation: 92 Ind. 447
• Parties: Masters v. Templeton et al
• Court: Indiana Supreme Court

92 Ind. 447

Masters v. Templeton et al

No. 10,834

Supreme Court of Indiana

January 3, 1884

From the Union Circuit Court.

Judgment affirmed.

T. D Evans, for appellant.

L. H Stanford, for appellees.

OPINION

Elliott, J.

The material facts stated in the special finding are substantially as follows: John F. Templeton bought of John Ferris the land in controversy, paid part of the purchase-money, and, to secure the remainder, executed several notes and a mortgage. After the death of Ferris the appellant, widow of the decedent, William Brown, the administrator of his estate, and John F. Templeton, the mortgagor, entered into an agreement wherein it was stipulated that the latter should execute a note for the remainder of the purchase-money then unpaid, with Brown as surety, and that it should be accepted by the appellant as in full of her distributive share of her husband's estate. The note was signed, delivered and accepted, and the mortgage executed for the purchase-money was satisfied. Afterwards the note was taken up and another executed by John F. Templeton alone, and on this note appellant obtained judgment on the 6th day of January, 1880. On the 3d day of August, 1871, John F. Templeton, being then entirely solvent, and acting in good faith, conveyed to Benjamin F. Templeton and Thomas T. Templeton the land bought of Ferris. After the execution of this conveyance, John F. Templeton and the grantees just named borrowed of Sylvanus Cockefair twelve hundred dollars, and executed their note with William E. Beckett as surety, and, to secure Beckett from loss, executed to him an indemnifying mortgage. Beckett was compelled to pay the debt, and afterwards brought an action to foreclose the indemnifying mortgage executed to him, and the appellant was made a party to the suit. The complaint in that suit charged that all of the defendants other than the mortgagors "claimed to hold some interest and liens in and upon said real estate, but that they took and held the same subject to Beckett's mortgage lien." An appearance was entered in that suit by the appellant, an answer and cross-complaint were filed by her, and, upon the hearing, judgment was entered in favor of Beckett, and it was also decreed that his rights were paramount, and that the equity of redemption of all of the defendants to that action should be barred and foreclosed.

The appellant has no right to a vendor's lien. A sufficient reason for this conclusion is that where there is an express lien created by mortgage there can be no equitable lien. Richards v. McPherson, 74 Ind. 158. Another reason may be added, although not necessary to the support of our conclusion, and that is, that where a promissory note is taken with a third person as surety for the payment of the purchase-money, the vendor's lien is waived. Way v. Patty, 1 Ind. 102; Crans v. Board, etc., 87 Ind. 162.

A vendor's lien once fully abandoned can not be revived. Mattix v. Weand, 19 Ind. 151.

The finding of the court negatives the existence of fraud in express terms, and it also shows that when John F. Templeton conveyed the land he was solvent, and this brings the case within the settled rule that, if the grantor is solvent when the conveyance is made, his subsequent insolvency does not affect the validity of the conveyance. Rose v. Colter, 76 Ind. 590; Evans v. Hamilton, 56 Ind. 34; Sherman v. Hogland, 54 Ind. 578; Pence v. Croan, 51 Ind. 336.

The decree in Beckett's favor concludes the appellant from asserting any right or lien in the land superior to his because she was a party to that action, and her rights were foreclosed by the decree therein rendered. Our code provides that "Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved." This is a very comprehensive provision, and was meant to confer authority to settle in one suit all conflicting claims to property involved in the litigation. The rule is a wise and salutary one, for it enables the court to fully adjust all equities, to determine and protect all rights, and to put an end to litigation concerning the subject-matter of the suit by one decree. Multiplicity of actions is thus prevented, full force and effect secured to judicial decrees, and judicial sales made operative and effective. It has long been the law of this State, that conflicting claims of title may be settled, and questions of priority determined, in foreclosure suits, whenever the proper issues are tendered. In the case of Greenup v. Crooks, 50 Ind. 410, the defendants filed an answer to a complaint for the foreclosure of a mechanics' lien, alleging that the mortgage held by them was a paramount lien, and it was held that the decree on the issue thus tendered concluded all the parties as to all rights held by them at the time it was entered. The same principle was declared in Davenport v. Barnett, 51 Ind. 329. In Martin v. Noble, 29 Ind. 216, the court said: "It is very true, as is argued for the appellee, that one may be made a defendant, in such a case, to answer as to his interest in the property." It follows, as of course, that if any one who has an interest is made a party, he must assert and maintain his interest, since, to hold otherwise, would be to declare that making him a party was merely an unmeaning and empty form. We take it to be very clear that if a person may be properly brought into a case there may, and should be, an adjudication determining his rights. If this be not true, then it is perfectly useless to bring him...