Reed v. Kalfsbeck

• Decision Date: 01 December 1896
• Docket Number: 17,893
• Citation: 45 N.E. 476,147 Ind. 148
• Parties: Reed v. Kalfsbeck et al
• Court: Indiana Supreme Court

45 N.E. 476

147 Ind. 148

Reed v. Kalfsbeck et al

No. 17,893

Supreme Court of Indiana

December 1, 1896

Rehearing Denied Feb. 26, 1897, Reported at: 147 Ind. 148 at 157.

From the White Circuit Court.

Affirmed.

A. W Reynolds and A. K. Sills, for appellant.

C. C Spencer, R. J. Million and R. P. Davidson, for appellee.

OPINION

Jordan, C. J.

Appellant instituted this action to quiet his title to certain real estate situated in White county, Indiana. He alleged in his complaint that he was the owner in fee simple of the lands described, and that the defendant's claim of title was "unfounded" and a cloud upon his title, and he demanded that his title be quieted, and that appellee's claim be adjudged null and void. Appellees answered the complaint by a general denial, and under the issues thus joined, a trial was had, and there was a special finding of facts, and as a conclusion of law the court found that appellant was not entitled to have the title of the real estate in dispute quieted against appellee, and rendered judgment accordingly. The error assigned by appellant in this court is based upon the court's conclusion upon the special finding. The facts in this case apparently show a chain of title to the land in controversy to Adaline Clark, William Wilie, and Colin M. Reed; that before the commencement of this action these parties died leaving the appellant and certain other persons as their heirs at law, and in 1895 these other heirs conveyed their interest to appellant. In June, 1875, one Fuller conveyed these lands to one Bushnell, but Fuller, in 1859, had conveyed the same real estate to John L. King, a remote grantor of appellant, and this latter deed was recorded in 1860, consequently Fuller's deed conveyed no title or interest to Bushnell. In November, 1877, Bushnell attempted by deed to convey the lands to William Turpie, and subsequently in 1879, the latter attempted to convey them to Alexander S. Brown. This deed to Brown was recorded November 8, 1879. For the years of 1882, 1883, and 1884, the real estate in question was, according to the tax duplicate in the office of the county auditor, assessed for taxation in the name of Alexander S. Brown, and from said duplicate he appeared to be the owner thereof, during the aforesaid mentioned years. In 1863 the remote grantors of appellant, then owners of the land, quit paying taxes thereon and took no action concerning the same until a short time before the beginning of this action. On September 3, 1884, one David Byroad, the owner of lands which would be benefited by drainage, but which could not be accomplished in the best and cheapest manner without affecting other real estate, applied to the circuit court of White county for the construction of a public ditch, or drain, under the statutes then in force. Such proceedings were had in accordance with said statutes, that on September 30, 1884, the White Circuit Court referred Byroad's petition to the commissioners of drainage. These commissioners made their report to the court on November 29, 1884, but upon a hearing of objections upon the part of certain land owners, this report was referred back to the commissioners, who subsequently, on May 8, 1885, made another report. In this report the commissioners assessed benefits to several tracts of land in the name of Alexander S. Brown, and among the same was the tract in controversy, upon which the benefits were assessed by reason of said drainage at $ 75.00. After making this report on May 26, 1885, the court made an order approving the benefits mentioned in the report, and ordered that the ditch be established. These proceedings appear to be substantially in compliance with the statute relative to drainage of lands. On September 6, 1886, the commissioners of drainage, in the name of the State of Indiana, commenced an action in the White Circuit Court against Alexander Brown to enforce the collection of the seventy-five dollars so assessed as benefits against the land in dispute. Such proceedings were had in said action that the defendant, Brown, who it appears had been duly served with notice of said action, was defaulted and there was a finding by the court that there was due the State of Indaina for the use of the commissioner of drainage, the sum of seventy-five dollars upon said assessment, and the further sum of twelve dollars for attorney's fees, and that the same was a lien upon the real estate now in suit and the court ordered it to be sold in payment and satisfaction of this lien. Under and by virtue of this decree the sheriff of White county, after duly advertising the time and place of sale, sold said land on July 2, 1887, at public auction to one Jitce Kalfsbeck, for $ 25,00, and issued to him a certificate of purchase, which for a valuable consideration, he assigned and transferred to the appellee, Detz Kalfsbeck, and on September 2, 1895, the sheriff executed to the appellee a deed on said certificate for the lands in question, under which, prior to the commencement of this action, he took possession. Under these facts counsel for appellant insist that the latter is shown to be the owner in fee of the realty described in the complaint, and that his right to a decree quieting his title cannot be denied or defeated by any claim asserted by the appellee under the drainage proceedings. Appellant's contention specifically stated is that Brown was not the real owner of the land at the time he was made a defendant to the action to foreclose the ditch lien, hence the insistence is that as the true owner was not a party to the foreclosure suit, that the sale of the land by the sheriff under the decree is void, and that no title or interest passed by the sheriff's deed to the appellee.

Upon the part of appellee's counsel it is contended that the foreclosure proceedings were valid, and they further say that conceding that the sheriff's deed did not vest the title to the land in the appellee, still, a lien was created by the drainage proceedings, which was discharged at least in part by the amount bid and paid at the sheriff's sale by the purchaser, from whom appellee obtained the certificate of purchase, and this lien to the extent of the amount discharged by the sale inured to the benefit of appellee. That appellant is not entitled to cut off this lien by a decree quieting title without first paying or tendering the amount due to appellee. This we think is the controlling question to be considered in this appeal, and a determination thereof does not require us to decide as to the validity of the decree of foreclosure. The facts show that the land at the time Byroad petitioned the circuit court for the construction of the public ditch, appeared upon the tax duplicate in the name of Alexander S Brown. This petition was filed under the amendatory act of 1883 (Acts 1883, p. 173). Section one of this act provides that "whenever any owner or owners of lands which would be benefited by drainage, which cannot be accomplished in the best and cheapest manner without affecting other lands, shall desire such drainage, he, she or they may apply for such drainage by petition to the...