Mettart v. Allen
| Decision Date | 13 December 1894 |
| Docket Number | 16,965 |
| Citation | 39 N.E. 239,139 Ind. 644 |
| Parties | Mettart et al. v. Allen |
| Court | Indiana Supreme Court |
From the Wayne Circuit Court.
The judgment is affirmed.
J Brown, L. A. Brown and L. E. Kepler, for appellants.
B. F Mason and T. J. Study, for appellee.
This action was brought by the appellant, Mettart, against the appellee, Mary Allen, to quiet the title of said Mettart to certain real estate described in his complaint. The appellee filed a cross-complaint in the case, making the appellant George T. Kepler a party thereto, for the reason that he held a mortgage on said land, and in her cross-complaint set up a mortgage covering a part of the premises claimed by the appellant, executed to her deceased husband, John Allen, on the 10th day of January, 1885, to secure the payment of a note calling for the sum of four hundred dollars, which note and mortgage the executor of the will of said John Allen had assigned to the appellee, Mary Allen, and which mortgage she claimed was a first lien on the land.
The court made a special finding of facts, with conclusions of law thereon, and found that appellee's said mortgage was the first lien on a part of the land, and rendered a decree foreclosing said mortgage and ordering the sale of that portion of the real estate covered thereby. The evidence is not in the record, and the facts must be presumed to have been correctly found by the trial court. The result therefore, of the case in this court depends upon the correctness of the conclusions of law drawn upon the facts found by that court. From these findings it appears that the southwest quarter of section 7, in township 17, range 13 east, in Wayne county, Indiana, contains only 114.24 acres, which quarter was purchased by William Brown of the United States, February 27, 1836, and the certificate therefor was duly recorded in the recorder's office of said county; that on the 13th day of October, 1842, said Brown sold, and by deed conveyed, to Philander Fowler 35 acres off the north end of said quarter, which deed was duly recorded in the recorder's office of said county on October 24, 1842, leaving unconveyed and still owned by said Brown 79.24 acres of said quarter; that on the 14th day of February, 1850, the 35 acres were conveyed by John M. Knight commissioner, to James Walker, the deed therefor being duly recorded in said recorder's office on December 18, 1850; that on the 16th day of August, 1847, said William Brown sold, and by deed conveyed, said quarter section to James Brown, except said 35 acres, which, said deed recited, had been previously sold to James Walker, and the deed from William to James Brown was duly recorded in the recorder's office on the date of its execution; that said James Brown, on the 10th day of November, 1853, sold and conveyed to James Walker 39.62 acres off the north side of said 79.24 acres, which he purchased of William Brown, and which was described in the deed as the north half of the residue of said quarter. On the 6th day of October, 1854, said Walker sold and by deed conveyed to Elisha Brown 39.62 acres off the south side of said quarter, the premises being described as "the south half of the residue of said quarter," and this deed was duly recorded in said recorder's office January 18, 1855, and upon the execution of said deed to said Elisha Brown he took possession of the tract therein described and held the same until October 1, 1881, when he sold and conveyed it by deed to Catharine Morrical by the description of the south half of the residue of said quarter, which deed was duly recorded in said recorder's office on March 4, 1882, and upon the execution thereof the grantee took possession of the premises and kept and held the same until the 4th day of December, 1882; that on said day the grantees sold and by deed conveyed said tract to Sarah Fouts by the description of the south half of the residue of said quarter, which deed was duly recorded in said recorder's office on the 16th day of January, 1885, and upon the execution thereof to said Fouts she took possession of said tract and held the same until the 19th day of January, 1885, except 20 acres off the west end thereof, which she sold to the appellant Mettart, and Samuel and David Fouts; that on the 19th day of January, 1885, said Sarah Fouts sold and conveyed said tract of 39.62 acres, except 20 acres off the west end thereof, to Martin Worl, by the description of the south half of the residue of said quarter, which deed was duly recorded in said recorder's office on the 10th day of November, 1885, and upon the execution of said deed to him he took possession and kept the same until the 25th day of January, 1887; that on the 10th day of January, 1885, and while said Worl owned and was in possession of said 39.62 acre tract, except said 20 acres off the west end thereof, he executed the mortgage thereon to said John Allen, now held by the appellee, Mary Allen, to secure the payment of said note of $ 400 which she also holds; that said mortgage was duly recorded in the recorder's office of said county on the 26th day of January, 1885, and in which said land was described as being the south half of the residue of said quarter, except 20 acres off the west end thereof; that on the 25th day of January, 1887, said Worl sold and conveyed said 39.62 acres, except said 20 acres off the west end thereof, to Susannah Baker, which were described as being 33 acres off the east end of the south half of said quarter, and as being the same land heretofore conveyed by Catharine Morrical to Sarah Fouts, and by her conveyed to Martin Worl, January 19, 1885; that the deed to said Baker was duly recorded in the recorder's office of said county on January 27, 1887, and she took possession of said real estate at the time of the execution of the deed, and held the same until January 25, 1887, when she sold and conveyed the same to Jacob L. Baker, by the same description by which it was conveyed to her, which land said grantee held until January 27, 1887, when he sold and transferred it by deed, by the same description, to appellant Mettart; that when said Sarah Fouts conveyed said 20 acres off the west end of said 39.62 acres off the south side of said quarter to the appellant Mettart and Samuel and David Fouts, on February 7, 1884, it was described in the deed to them as 20...
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