Maynes v. Moore

• Decision Date: 29 May 1861
• Citation: 16 Ind. 116
• Parties: Maynes v. Moore, and Another
• Court: Indiana Supreme Court

16 Ind. 116

Maynes v. Moore, and Another

Supreme Court of Indiana

May 29, 1861

Reported at: 16 Ind. 116 at 123.

APPEAL from the Union Circuit Court.

The judgment is affirmed, with costs.

N Trusler, J. P. Gardner, Jno. S. Reid and Thos. A. Hendricks for the appellant.

John Yaryan, James Gavin and Oscar B. Hord, for the appellees.

OPINION

Perkins J.

A mortgage was executed to the State of Indiana, of which a copy, in substance, follows:

"This indenture, made this 15th day of July, A. D. 1837, between John S. Hunt, of the county of Union, Indiana, of the first part, and the State of Indiana, of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of $ 500, paid to him by the party of the second part, hereby mortgages to the party of the second part the following real estate, viz.: [here the property is described.] Provided always, nevertheless, that these presents are upon this express condition: that if the said John S. Hunt shall pay to the State of Indiana, at the branch at Richmond of the State Bank of Indiana, the sum of $ 500, with the interest in advance, annually, at the time and place stated in a certain bond made by the said Hunt, July 1, 1837; whereby said Hunt promised, under the penalty of $ 1,000, to pay to the Commissioners of the Sinking Fund of the State of Indiana, at the branch at Richmond of the State Bank of Indiana, in five years from the first of July, 1837, the sum of $ 500, with interest at 9 per cent., to be paid annually in advance on the first day of July in each year; and stipulated that in case of the non-payment of such amount of interest each year in advance, or any part of it, or of the principal, when due, then all equity of redemption is hereby released to the said State, by the said Hunt; and it shall be lawful for said State by her Commissioners of the Sinking Fund, or their agent or agents, after sixty days notice, forthwith to make sale of the said premises at public auction, as authorised by law, for the principal or interest, or either of them, with 5 per cent. damages thereon, and costs, and to make and deliver to the purchaser a deed for the premises."

Afterward, Hunt sold and conveyed the land to Maynes, subject to the mortgage.

In 1842 the Legislature reduced the rate of interest on the mortgage to 7 per cent. Maynes paid the interest annually until 1858, when he failed to make the payment, and the commissioners sold the land mortgaged to James Gavin, who assigned his certificate of purchase to Moore, one of the defendants. Moore procured from the Auditor of State a writ as follows:

"Indiana, to wit: The Auditor of the State of Indiana to the Sheriff of Union county, greeting:

"Whereas, Robert Moore has this day filed his complaint, in writing, in the Auditor's office of the State of Indiana, verified by his oath, representing among other things, that on the 12th day of December 1858, at the city of Indianapolis, in the county of Marion, in said State, at a public sale held by the State of Indiana, through the Commissioners of the Sinking Fund, at the Court-house door in said city, pursuant to public notice published in the Indiana State Sentinel, a weekly newspaper printed and published in said city, sixty days immediately preceding the date aforesaid, one James Gavin, then and there, became the purchaser of the following described premises, [the same described in the mortgage,] for the sum of $ 625; the same having been before that time, mortgaged to the Sinking Fund by John S. Hunt, and bid in for the State for the failure of the mortgagor to pay the interest on a loan of $ 500, obtained by the said Hunt from the said fund. And whereas, it was also shown that Ebenezer Dumont, as the President of the Commissioners of the Sinking Fund, on the day and year first above named, and by order of said board of commissioners, had issued and delivered to said James Gavin a certificate of purchase, under his official signature, stating that the said James Gavin had paid into the Sinking Fund office the sum of $ 43.75, being 7 per cent. interest on the said purchase for one year, in advance, and containing conditions for future payment of interest, and finally of principal, on which payment he was to be entitled to a conveyance from the State in fee.

"And, whereas, it was also shown that on the 25th day of February 1858, the said James Gavin, for value received, &c. [Here the assignment is fully set out to Robert Moore.] And, whereas, it was also further shown that said Robert Moore, on the 18th day of March, 1859, and before the filing of said complaint, had duly notified said William Maynes, in writing, &c. [Here the notice and demand of possession are fully set forth.] You are, therefore commanded, in the name of the State of Indiana, and by virtue of the authority vested in me by the laws of said State, that you remove the said William Maynes from the said real estate, within ten days from the receipt of this warrant, and put the said Robert Moore in possession of the same: and this you may in no wise omit, under the penalties prescribed by law.

Given under my hand and official seal, at Indianapolis, this 28th day of March, A. D., 1859.

John W. Dodd, Auditor of State."

The seal of the State is attached to the writ. The certificate of sale to Gavin is in the record, and is correctly recited by the Auditor. To enjoin the execution of this warrant, was the object of this suit.

The complaint alleges:

1. That the property is worth $ 3000.

2. That the plaintiff is the owner, and in possession of it.

3. "That during the year 1858, the interest on the mortgage was sent by plaintiff, by a special messenger, to be paid to the President of the said Sinking Fund, for the purpose of paying said interest then due, viz.: $ 35; which, along with $ 5 to pay cost of advertisement, the officer having charge of said fund at Indianapolis refused to receive, alleging that the land mortgaged, as aforesaid, had been purchased by the State of Indiana and resold to one James Gavin;" "but," says the complaint, "no certificate of sale had then been delivered to said Gavin." The certificate was executed on December 12, 1858, as appears by its date.

4. "That he, plaintiff, has always been ready and willing to pay said interest and all costs appertaining thereto, and has offered the same, but neither the said Moore, nor the said Sinking Fund will receive the same."

A demurrer was sustained to the complaint, because it did not contain facts constituting a cause of action.

The points made in the brief of plaintiff are:

1. "That the law, at the date of forfeiture and sale, does not authorize such an extra judicial sale as the one made by the Sinking Fund Commissioner, as shown in the complaint, purports to be; and that it is doubtful whether any law is in force at all authorizing any other sale than a foreclosure by a Court of competent jurisdiction, under the Constitution."

2. "But if there was such a law, still the commissioner should have sold only so much of the land mortgaged as would have brought the amount of the loan and interest."

3. "That Hunt's mortgage was executed in 1837, when although the board might sell the land to a bona fide purchaser, there was no law to authorize the State to buy it in. Nor was there any law authorizing the Auditor of State to issue his mandate, and oust the owner of the land of possession without either judge or jury, without inquiring whether the mortgagor was in default or not--in other words, to dispossess a man without being heard. This extraordinary power was given in 1845. See Statute of 1845, §§ 7 and 8, p. 19. To the granting of which appellant was no party, and not consenting thereto."

We examine these points in their order:

In 1834 an act was passed creating a State bank. This was under the old Constitution, which did not limit acts to a single subject; and the last ten sections of that bank act created and regulated the management of a sinking fund. They prescribed the securities on which the fund might be loaned; the mode of enforcing collections out of said securities; and that "In the examination of the title to real estate, fixing the value thereof, and the amount for which it is to be mortgaged; the amount of the loan; its duration and rate of interest; the nature of the mortgage; the registering, canceling, or foreclosing thereof; and in the making and collecting any of said loans, with the interest thereon, the said board [the Board of Commissioners] shall be governed, in all respects, by the provisions of the several acts authorizing the loaning of the Seminary funds." R. S. 1838, § 115, p. 114.

The Seminary acts were passed prior to the bank act. R. S. 1831, pp. 495-499. And the provisions of them, touching loans and foreclosures, were, in legal effect, incorporated by reference into the part of the bank act regulating the Sinking Fund; and, hence, were continued in force, so far as they made a part of that act, and for the purposes of that act, by the Code of 1852, vol. 1, divisions 17 and 19, p. 431, which continues in force, "All acts relative to the Sinking Fund" and "All laws regulating the Sinking Fund."

The provisions of the Seminary act, then, so far as incorporated in the bank act, being in force for the purposes of Sinking Fund loans and sales, we inquire, In what manner do they authorize sales to be made?

On failure to pay the interest in advance, of any given year they authorize, at a given time and place, on sixty days notice, an offer of sale of the land mortgaged, for cash down; and if no one bids the amount of the debt, damages and costs, they authorize the land to be bid in for the beneficiary of the fund, at the above...