Pauley v. Cauthorn

• Decision Date: 10 March 1885
• Docket Number: 11,542
• Citation: 101 Ind. 91
• Parties: Pauley et al. v. Cauthorn
• Court: Indiana Supreme Court

101 Ind. 91

Pauley et al. v. Cauthorn

No. 11,542

Supreme Court of Indiana

March 10, 1885

From the Knox Circuit Court.

Judgment affirmed.

G. G Reily and W. C. Niblack, for appellants.

H. S Cauthorn and J. M. Boyle, for appellee.

OPINION

Elliott, J.

It is alleged in the complaint of the appellants that they are husband and wife; that on the 26th day of November, 1875, Ira H. Pauley was the owner of a lot in the city of Vincennes, and on that day conveyed it by way of mortgage to William Ross to secure the payment of $ 500, evidenced by a promissory note; that this mortgage was duly recorded on the 26th day of February, 1877; that on the 7th day of November, 1875, Edward Weisert recovered a judgment against Pauley for $ 633.31 and costs; on the 24th day of August, 1878, Pauley filed a petition in the United States District Court praying that he might be adjudged a bankrupt; that such proceedings were had as resulted in an adjudication that he was a bankrupt; that on the 28th day of November, 1878, he secured a discharge in bankruptcy; that while the bankruptcy proceedings were pending, the lot was conveyed by the register to James L. Weems, the assignee in bankruptcy; that the assignee, pursuant to an order of the court, sold and conveyed the lot to Charles G. McCord on the 8th day of May, 1880, subject to the liens thereon; that on the 10th day of December, 1881, William Ross commenced a suit to foreclose his mortgage, but made no other persons parties except the appellants, obtained a decree of foreclosure, on which sale was made to Charles G. McCord and John T. Bayard for $ 367.48; that by agreement between McCord and Bayard of the one part, and Ira H. Pauley, who acted for himself and his wife, of the other part, Bayard and McCord undertook to convey all of their interest in the property to Pauley; that pursuant to that agreement they did convey it to him; that as a part of the agreement Ross and Bayard and McCord made a sale and assignment of the decree to Pauley; that the assignment was evidenced by the following writing: "Received of Ira H. Pauley four hundred dollars in full of all claims which either of us have against the real estate herein described, and we each of us, in consideration of the said sum, forever relinquish, release and forever quitclaim any and all interest which any of us may have in the real estate described in said decree, and hereby direct the sheriff to return the same satisfied;" and that the decree was returned satisfied. It is also alleged that on the 9th day of September, 1882, Weisert by his attorney, the appellee, sued out an execution upon his judgment; that the sheriff levied it on the lot in controversy, sold it to the appellee, and issued to him a certificate of sale. The complaint prays that the cloud upon appellant's title created by the sale on Weisert's judgment may be removed, and that a decree of foreclosure issue in favor of the appellant.

Where a sale is made by an assignee in bankruptcy subject to existing liens, and there are such liens antedating the filing of the petition in bankruptcy, they are not divested by the assignee's sale. Swope v. Arnold, 5 Nat. B. R. 148; Marshall v. Knox, 8 Nat. B. R. 97; Catlin v. Hoffman, 9 Nat. B. R. 342; Clark v. Iselin, 11 Nat. B. R. 337; Wilson v. City Bank, 9 Nat. B. R. 97; In re Gold Mountain Mining Co., 15 Nat. B. R. 545; Haughton v. Eustis, 5 Law Rep. 505.

A judgment creates a lien on the land of the debtor, and the lien is such as neither the adjudication in bankruptcy nor the assignee's deed will divest. The discharge in bankruptcy released the bankrupt from personal liability on the judgment, but it did not relieve the land from the lien. Woodbury v. Perkins, 5 Cush. 86; S. C., 51 Am. Dec. 51; Buckingham v. McLean, 13 How. 150; Downer v. Brackett, 21 Vt. 599; In re Jaycox, 8 Nat. B. R. 241; Truitt v. Truitt, 38 Ind. 16; Pierce v. Wilcox, 40 Ind. 70.

It results from these settled principles that Weisert's lien was not divested by any...