McMakin v. Schenck

• Citation: 98 Ind. 264
• Decision Date: 11 November 1884
• Docket Number: 11,496
• Parties: McMakin et al. v. Schenck
• Court: Supreme Court of Indiana

98 Ind. 264

McMakin et al. v. Schenck

No. 11,496

Supreme Court of Indiana

November 11, 1884

From the Switzerland Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to overrule the demurrers to the second and third paragraphs of answer, and for further proceedings.

J. A Works and L. O. Schroeder, for appellants.

-- Carter and -- Tandy, for appellee.

OPINION

Howk J.

In this case the appellants, the defendants below, have assigned as errors the decisions of the circuit court in sustaining demurrers to the second and third paragraphs of their answer.

The complaint of the appellee, Schenck, contained two paragraphs. The first paragraph was a complaint in the ordinary form, to recover the possession of certain real estate, particularly described, in Switzerland county; and the second paragraph was a complaint to quiet the appellee's title to the same real estate as against the appellants. The answer of the appellants was in three paragraphs, of which the first was a general denial. After the court had sustained demurrers to the second and third paragraphs of answer, the appellants withdrew their general denial, and, having excepted to the rulings on the demurrers, they declined to amend or plead further, and judgment was rendered against them as prayed for in appellee's complaint.

In the second paragraph of their answer the appellants admitted that Jonathan McMakin and his wife, Margaret, executed the mortgage on the real estate in controversy to Robert A. Knox as charged in the second paragraph of appellee's complaint; that such mortgage was foreclosed and the real estate sold, and a certificate of sale executed to Solomon Froman, and by him assigned to the appellee, and the execution of the sheriff's deed of such real estate to the appellee, as alleged in the second paragraph of such complaint; and the appellants averred that the appellee had no other or different title or claim upon such real estate than such as he obtained by and through such sheriff's sale; that after such real estate was sold to said Solomon Froman, and while he held the certificate of such sale, the said Margaret McMakin and the appellant Jonathan McMakin were about to enter into an agreement with said Froman, under which he was to execute a title-bond of such real estate to said Margaret McMakin, and give her time to pay the amount of his bid therefor; that the appellee, learning of their intention, proposed to said Margaret and the appellant, her husband, that he would buy the certificate of sale from said Froman, and enter into an agreement giving them time to pay the money to be paid by him to said Froman, and that he would make to said Margaret a title-bond for said real estate as soon as he received a deed therefor; that the said parties accepted said proposition, and, in pursuance of said agreement, the appellee purchased such certificate of sale and paid therefor the amount bid on such real estate by said Froman, and interest thereon; that, in pursuance of said agreement, after such certificate of sale had been endorsed to the appellee, and before the year for redemption had expired, the appellant paid the appellee, of the purchase-money paid by him, the sum of $ 500, which was accepted by appellee as a payment thereon; that when the sheriff's deed was executed to the appellee, it was agreed by the appellant Jonathan McMakin and the appellee that, for the purpose of concealing from other creditors the real transaction, and to cause it to be believed that the appellee had become the absolute owner of such real estate, he had claimed that the appellant retained possession of the real estate as his tenant, and that the...