Reichert v. McCool

• Decision Date: 05 December 1929
• Docket Number: No. 13517.,13517.
• Citation: 92 Ind.App. 406,169 N.E. 86
• Parties: REICHERT v. McCOOL et al.
• Court: Indiana Appellate Court

92 Ind.App. 406

169 N.E. 86

REICHERT

v.McCOOL et al.

No. 13517.^*

Appellate Court of Indiana, in Banc.

Dec. 5, 1929.

Appeal from Probate Court, Vanderburgh County; Edwin C. Henning, Judge pro tem.

Action by Henry F. McCool against Luella Reichert, doing business as the Louis Reichert Construction Company, and another, in which defendant Ruth Burket filed a cross-complaint. From the decree, defendant Reichert appeals. Reversed and rendered.

French Clements, of Evansville, for appellant.

Meyer, Fine & Mitchell and Edmund L. Craig, all of Evansville, for appellee.

McMAHAN, J.

This is an action by Henry F. McCool against Luella Reichert, appellant herein, and Ruth Burket, to quiet title to certain real estate in the city of Evansville. Ruth Burket filed an answer of general denial and a cross-complaint alleging that, at the regular tax sale in February, 1922, she purchased the land in question, and, there being no redemption, the auditor, on March 4, 1924, executed a deed conveying the land to her; that the plaintiff, McCool, was claiming her tax deed was invalid and not effectual to convey title, that the defendant Reichert was claiming a lien on the lot because of a certain street improvement and had brought suit to foreclose such lien, that, if the tax deed be found invalid as claimed by the plaintiff, she should be subrogated to the rights of the state, and that the amount paid by her for taxes at the tax sale and subsequent thereto was a prior lien to any lien of Reichert; and asking that the land be not sold for the payment of the street improvement lien until the court ascertained the priorities of the liens and for all other proper relief.

Luella Reichert, for answer to the complaint and to the cross-complaint of Ruth Burket, alleged that on September 2, 1927, she commenced an action in the Vanderburgh probate court against Ruth Burket for the foreclosure of a street improvement lien against the real estate described in the complaint; that McCool appeared in that action and filed an intervening petition claiming to be the owner of the property, and on his motion was made a party defendant; that Burket and McCool filed their answers therein relative to their rights in the real estate; that thereafter a judgment was rendered in that action in favor of the plaintiff in the foreclosure proceeding, and that such decree of foreclosure settled and adjudicated all the rights of the parties as to all issues presented by the complaint of McCool and by the cross-complaint of Burket in the instant case, all of the formal allegations to make such answer good being alleged. The decree rendered in the action for foreclosure of the street improvement lien is set out and made a part of this answer. This decree shows the appearance of McCool and Burket; the dismissal of the cross-complaint filed therein by Burket; a finding against McCool and Burket and for the plaintiff therein against both defendants that all of the allegations of the complaint were true; that there was due the plaintiff therein on account of the street improvement assessment $256.01; that the same was a lien on the real estate; that such lien should be foreclosed and the real estate ordered sold; that the sheriff, upon sale of the property, should, out of the proceeds, first pay the costs, then the amount found to be due on the street improvement lien, and the balance, if any, to Ruth Burket. The judgment followed the finding.

The issues in the instant case, being closed by answer and replies, were tried by the court and resulted in a decree adjudging McCool to be the owner of the real estate; that Ruth Burket was the holder of a first and prior lien for taxes amounting to $199.21; that appellant had a lien in the sum of $306.70, for the street improvement, which was junior and inferior to such tax lien; that such street improvement lien was, by the foreclosure, merged in the sheriff's certificate of purchase which appellant held; that McCool should within 10 days pay to the clerk the $199.21 due Burket on her tax lien; that, upon his failure so to do, appellant should within 20 days thereafter pay said sum to the clerk for use of Burket; that, if both parties failed to make such payment, the property should be sold, and, after payment of costs, the proceeds should be applied (1) to the payment of the claim of Burket, (2) to the payment of the claim of Reichert and (3) any balance to McCool. It also provided that, if the land was sold to pay the lien of Burket, the sale should be made free from the lien of Reichert, and that her lien should attach to the proceeds not required to pay the tax lien.

Luella Reichert appeals from this decree, and assigns as error the overruling of her motion for a new trial, the specifications of which are (1) that the decision of the court is not sustained by sufficient evidence; (2) that it is contrary to law; and (3) error in excluding certain evidence.

The facts in this case as proven by the undisputed evidence are as follows: At the regular tax sale held February 13, 1922, the land in question was sold to Ruth Burket, hereafter designated appellee, and on March 4, 1924, the auditor issued a tax deed to her. In July, 1925, John L. Newman, in an action brought by him against appellee and the devisees of the person who owned the land at and prior to the time of the tax sale recovered a decree in the Vanderburgh circuit court, foreclosing an assessment lien held by him, and ordering the real estate sold. The land was sold by the sheriff under that decree to appellee, and, there being no redemption from such sale, a sheriff's deed was, in January, 1928, issued to McCool as assignee of the sheriff's certificate.

We will not set out the evidence relating to the advertising of the property for sale for delinquent taxes, but it is sufficient to say the auditor did not follow the statute in making up this record, and, because of such failure, the tax deed was invalid and ineffectual to convey title. Such sale, however, was sufficient to transfer to her the lien of the state for taxes.

In September, 1927, appellant commenced an action in the Vanderburgh probate court to foreclose a street improvement lien held by her; appellee being the only defendant named in the complaint, which alleged a state of facts showing that all of the proceedings relating to such improvement, including the passage of the declaratory resolution, the letting of the contract for the construction of the improvement to appellant, the completion of the improvement by her, and the making of the assessment roll levying an assessment against the real estate in question in the name of and as being owned by appellee. The giving of all notices to be given the landowners including appellee, of the amount of their respective assessments, were had after the execution of the tax deed, and the complaint in that action specifically alleged that the real estate in question was the property of appellee, that she had failed to execute any waiver or pay the assessment; and that she had been notified that the assessment was delinquent against her lot and must be paid or an action would be commenced to foreclose the lien of such assessment. The prayer of the complaint was that the lien of said assessment be foreclosed, and that the lot be sold to satisfy the amount due by reason of such assessment, including attorney fees, and for all other proper relief.

McCool, claiming to own the property, was, on his application, made a defendant in that action, and filed an answer of general denial. Appellee filed an answer in two paragraphs; the first being a general denial. The second paragraph alleged that she purchased the property in 1922, at tax sale, the issuance to her of a tax deed; that such tax sale was ineffectual to convey title; that, by reason of such sale, she had a tax lien which was prior to the street improvement lien of appellant; and that such tax lien should be first paid. She also filed a counterclaim alleging that she was the owner of the real estate, and asking that her title be quieted. A demurrer...