Miller v. Hardy

• Decision Date: 12 January 1892
• Docket Number: 15,379
• Citation: 29 N.E. 776,131 Ind. 13
• Parties: Miller v. Hardy et al
• Court: Indiana Supreme Court

29 N.E. 776

131 Ind. 13

Miller v. Hardy et al

No. 15,379

Supreme Court of Indiana

January 12, 1892

Petition for a Rehearing Overruled March 19, 1892.

From the Montgomery Circuit Court.

Judgment affirmed.

G. D Hurley and M. E. Clodfelter, for appellant.

H. H Dochterman, A. W. Caldwell and J. L. Caldwell, for appellees.

OPINION

Miller, J.

The appellant filed her complaint in four paragraphs, against the appellees. Demurrers were sustained to the second and third paragraphs, and these rulings are complained of in this court.

The first paragraph of complaint was in the ordinary form, authorized by the code, for the recovery of real estate, damages for its detention, and for rents and profits.

The second and third paragraphs are each for the recovery of the same tracts of land described in the first.

The appellant was entitled to introduce all the evidence under the first paragraph that would have been admissible under either the second or third, and the special finding of facts made by the court shows that she did, in fact, introduce evidence to establish the cause of action set forth in these paragraphs, and that the facts so proven are included in the facts found by the court.

The fourth paragraph of complaint sought a redemption of the same land from a sale on the foreclosure of a mortgage executed by the appellant and her husband to one Byrns, alleging, among other things, that the defendants, claiming under the mortgage sale, had, while in possession of the land, received rents and profits. To this paragraph one answer was filed claiming that such defendants, while in possession, had paid out and expended large sums of money for lasting and valuable improvements, and for other specified purposes, which were necessary to the preservation of the property.

A demurrer was overruled to this paragraph of answer, and this is assigned as error.

The court found specially the facts upon which the plaintiff predicated her right of recovery, and concluded and adjudged that she was not entitled to redeem. The appellant, therefore, was not barred by the ruling of the court upon this demurrer.

If the court had found that the appellant was entitled to redeem, and it had thus been found necessary to have an accounting of rents and profits on the one hand, and expenditures for necessary improvements on the other, a very different question would be presented.

Some objections are urged to another paragraph of answer which sets up title in the defendants, founded upon the foreclosure of a mortgage executed by the appellant and her husband. We are satisfied that the facts therein set forth are well pleaded, and the other objections will be considered hereafter.

We do not consider it necessary to review the rulings of the court in sustaining demurrers to the paragraphs of reply, for the reason that we find that all the facts therein relied upon are fully set forth in the special finding of the facts made by the court, upon which finding conclusions of law were stated and excepted to by the appellant. It thus affirmatively appears that the appellant has not been deprived of the privilege of putting her whole case into the record for review by this court. Having excepted to the conclusions, she is entitled to a ruling upon them that will give her all the benefit to which the facts entitle her, and she is, therefore, not injured by the ruling of the court in sustaining demurrers to her replies, even if the rulings were erroneous. State, ex rel., v. Vogel, 117 Ind. 188, 19 N.E. 773.

A synopsis of so much of the special findings as are necessary to present the legal questions involved is as follows:

The plaintiff, Elizabeth Miller, was, and had been for many years, the wife of one John M. Miller, who, on and prior to the 10th day of December, 1877, was the owner of three hundred and fifty-nine acres of real estate in Montgomery county.

At the September term, 1877, of the Montgomery Circuit Court, the plaintiff obtained a judgment against her husband for $ 13,348.84. Subsequently this land was levied upon and sold upon an execution on this judgment to the plaintiff for $ 3,055.20, and, the land not being redeemed, she obtained a sheriff's deed for the same on the 11th day of November, 1878, which deed was in due time recorded.

On the 10th day of December, 1877, John M. Miller was, upon the petition of two of his creditors, adjudged to be a bankrupt and Henry C. Adams was duly appointed his assignee in bankruptcy. In April, 1878, Adams, as such assignee, filed his ex parte petition in the United States District Court for an order for the sale of the lands of the bankrupt, to make assets for the payment of his debts. That afterwards an order was made by the court for the sale of the land, and it was, on the 8th day of April, 1878, sold to Granville M. Ballard, subject to existing liens, for the sum of $ 60, and the sale reported to and confirmed by the court. In September, 1889, Ballard sold and conveyed the land to the plaintiff, and at the same time assigned to her all his claims for rents and profits of the land accruing subsequent to his purchase. On the 31st day of May, 1878, Miller received his discharge in bankruptcy. That on the 26th day of August, 1876, Miller and wife executed a mortgage on the land to secure a loan of $ 5,000 to one Ainsworth H. Byrns. That on the 15th day of February, 1878, the debt for which the mortgage was executed being due and unpaid, Byrns filed his petition in the United States District Court asking for leave to proceed in the Montgomery Circuit Court against the assignee to foreclose his mortgage during the pendency of said proceedings in bankruptcy. That said assignee made on the back of said petition the following indorsement, to wit: "On account of the amount of encumbrance on the real estate, do not...