McClure v. Raber

• Decision Date: 20 March 1939
• Docket Number: 15927.
• Citation: 19 N.E.2d 891,106 Ind.App. 359
• Parties: McCLURE v. RABER et al.
• Court: Indiana Appellate Court

19 N.E.2d 891

106 Ind.App. 359

McCLURE v. RABER et al.

No. 15927.

Appellate Court of Indiana, in Banc.

March 20, 1939

Cook & Bailey, of Huntington, for appellant.

Eichhorn Gordon & Edris, of Bluffton, and Lesh & Lesh, of Huntington, for appellees.

LAYMON Judge.

This is an action instituted by appellee Eva I. Raber, on the 27th day of February, 1936, for the partition of certain land in Wells county, Indiana. Appellant and appellee Charles E Paul, receiver of the Markle State Bank, were made defendants thereto.

The complaint, which was in one paragraph, alleged that appellee Raber was the owner of an undivided one-third interest and that appellant was the owner of an undivided two-thirds interest in the real estate therein described; that appellant's interest was subject to a mortgage lien in favor of the appellee bank; and that said real estate was not divisible and could not be set off in severalty without damage to the owners. The complaint asked that appellee Raber and appellant be adjudged the owners of said real estate in the proportions as set forth and that, because of the indivisibility of said real estate, the court order the entire tract sold and appoint a commissioner to make said sale and distribute the proceeds derived therefrom among the parties as their interests might appear. Appellant unsuccessfully demurred to this complaint for want of facts and thereafter filed an answer in two paragraphs. Appellant also filed a cross-complaint to quiet title. Appellee bank answered the complaint in general denial and also filed a cross-complaint setting up its mortgage lien on the undivided two-thirds of the real estate owned by appellant and asking for personal judgment against appellant and a transfer of the lien of its mortgage to the proceeds of the sale of appellant's interest in said real estate. Appellant unsuccessfully demurred to this cross-complaint and thereafter filed his answer in general denial. An answer in general denial was also filed to the appellant's cross-complaint to quiet title. There were other pleadings filed, but they are not material.

There was a trial by the court, and, upon proper request, the court made a special finding of facts and stated its conclusions of law thereon, upon which judgment was rendered. The court adjudged and decreed that appellee Raber is the owner in fee simple of an undivided one-third interest and that appellant is the owner in fee simple of an undivided two-thirds interest in the real estate in question; that said real estate is indivisible; that the undivided two-thirds interest of appellant is encumbered by a mortgage lien in favor of the appellee bank, upon which there remains due and unpaid the sum of $6,267.67, together with interest; and that said mortgage lien be transferred fom the undivided two-thirds interest of appellant in said real estate to the proceeds derived from the sale of appellant's undivided twothirds interest. The court appointed a commissioner and made provision for the terms and conditions under which said real estate should be sold by said commissioner.

In due time appellant filed a motion for a new trial, which was overruled, and this appeal followed. Appellant has assigned as errors in this court the action of the trial court in overruling his demurrer to the complaint, in overruling his demurrer to the cross-complaint of appellee bank, in overruling his motion for a new trial, and error in each of the conclusions of law. The facts were stipulated by the parties and are not in dispute. They are: That Madella D McClure died intestate on November 22, 1925, the owner in fee simple of 80 acres of land in Wells county; that she left surviving as her only heirs at law her husband, Joseph R. McClure, her son, Leslie F. McClure (appellant), and her daughter, Eva I. Raber (appellee); that by descent each became the owner of an undivided one-third interest in said real estate; that on November 18, 1930, Joseph R. McClure and appellant executed a mortgage on their undivided interests in said real estate to the appellee bank to secure the payment of certain notes; that on February 27, 1935, Joseph McClure, by deed of conveyance, conveyed his undivided one-third interest in said real estate to appellant; that said real estate is indivisible; and that the mortgage of appellee bank is a valid lien on appellant's undivided two-thirds interest in said real estate, there remaining due and unpaid of the debt secured by said mortgage the sum of $6,267.67, with interest.

It is conceded that the only question for determination in this appeal is whether or not an owner of an undivided interest in real estate, who mortgages his undivided interest, is entitled to possession for one year and the right of redemption from sale of the real estate as incidents of the mortgage, as against the right of a cotenant to compel partition and sale of the entire tract of land in a partition proceedings.

Appellant contends that by ordering the entire tract of land in question sold and transferring the lien of appellee bank's mortgage to the proceeds of the sale he was deprived of the statutory right of redemption from the sale of his real estate and the statutory right to the possession, and rents and profits thereof, for one year after such sale; that the statutory right of redemption and the right of possession, of said real estate for one year inure to him by virtue of the mortgage debt and lien on his undivided two-thirds interest in said real estate and cannot be defeated by a partition proceedings, should the court find that the land sought to be partitioned is indivisible and order the entire tract sold and the lien of the mortgage transferred to the proceeds derived from the sale.

The statutes under which appellant asserts the right of redemption and the right of possession are sections 1, 2, and 3 of chapter 88 of the Acts of 1881 (Spec. Sess.), §§ 2-3909, 2-3919, and 2-4001, Burns' 1933, Secs. 622, 623 and 624, Baldwin's 1934.

Our statute governing the partition of real estate, section 3-2401 et seq., Burns' 1933, Sec. 1106 et seq. Baldwin's 1934, provides in part: "Any person holding lands as joint tenant or...