Roeder v. Keller

• Decision Date: 22 December 1893
• Docket Number: 16,433
• Citation: 35 N.E. 1014,135 Ind. 692
• Parties: Roeder v. Keller
• Court: Indiana Supreme Court

35 N.E. 1014

135 Ind. 692

Roeder v. Keller

No. 16,433

Supreme Court of Indiana

December 22, 1893

From the Vanderburgh Superior Court.

The judgment is affirmed.

J. G Owen and G. A. Hoff, for appellant.

A Dyer, for appellee.

OPINION

Howard C. J.

The facts in this case, as found by the court, are briefly:

That on the 8th day of September, 1879, Theodore Roeder, husband of appellant, was the owner and in possession of certain lots, named, in the city of Evansville; that on said day he executed to appellee his promissory note for $ 465, due in four months after date, with interest at eight per cent. after maturity, which note, on the 19th day of September, 1879, he secured by mortgage on said real estate; that, prior to the execution of said note and mortgage, two judgments had been recovered against said Roeder, which were liens upon said land; that on June 24, 1880, said lots were sold by the sheriff for $ 587.62 to Elias and August J. Weber, to satisfy executions issued on said judgments.

The sheriff issued to said purchasers a certificate of sale on receiving from them $ 400 cash, being the amount needed to satisfy the execution and costs, and receiving, also, from Roeder a receipt for the remainder of the amount of the bid, $ 187.62, Roeder at the same time having claimed his exemption as a resident householder of the State; that on the 29th of June, 1880, the Webers assigned their certificate of purchase to James L. Orr, under an arrangement with Roeder that Orr would take the certificate as security for the $ 400 paid by him for the certificate, with interest at eight per cent.

Orr signed an agreement to assign said certificate to Charles Roeder, son of Theodore, within one year, on payment of said $ 400 and interest; that Charles Roeder did not pay Orr said $ 400, and no assignment was ever made to him, but the certificate was retained by Orr until the 22d day of November, 1890, when he presented it to the sheriff and received a deed for the lots. During the time he held the certificate, he received interest on the $ 400, at eight per cent., or $ 32 per annum, nine such payments being made by Theodore Roeder in person.

On November 4, 1890, Orr conveyed his interest in said real estate to the appellant, Louisa Roeder, for the amount due him on said certificate, being $ 400, with interest from June 29, 1890; that Theodore Roeder continued in the possession and ownership of said lots, using them as a home for himself and family until his death, November 30, 1889, when he died leaving the appellant surviving him as his widow, who has continued to occupy the real estate as her home until now; that, at the time of the execution of appellee's note and mortgage, the said Roeder was indebted to him for $ 100 only, but that the note and mortgage were made for $ 465 by Roeder to protect his property against his creditors, and in fraud of their rights, and was received by the appellee, he knowing the fraudulent purpose of said mortgagor in making such note and mortgage for a larger sum than due, but that such fraud did not affect the claim held by the appellant, the same being a prior lien on said real estate, and recognized as such by her husband; that there is due appellee on said note and mortgage $ 100, with interest at eight per cent. from January 8th, 1880, with five per cent. attorney's fees, making in all $ 203.35; that said Roeder had allowed said real estate to become delinquent for taxes, and the treasurer of Vanderburgh county, on the 13th day of September, 1880, sold the same to Josiah Locke for $ 161.37, the amount of taxes then due.

On January 7, 1885, the said Locke recovered judgment against said real estate for $ 438.40, and a lien was given him upon said lots for that sum, as the amount of all taxes, interest, and charges thereon to that date, besides $ 14.40, paid by said Locke; that on January 9, 1885, appellee, at the request of said Roeder, paid said judgment and costs to said Locke, which sum has not been repaid to appellee, but there is now due him thereon, principal and interest, $ 620; that at the time appellee paid the amount of said lien to said Locke, appellee had a valid and subsisting lien on said real estate, by virtue of his said mortgage, which was junior to the lien of said judgment lien in favor of said Locke; that the appellant, as the surviving wife of Theodore Roeder, is the owner of, and entitled to, the undivided one-third of said real estate, inasmuch as she did not join her husband in the execution of appellee's mortgage, nor was she a party to the suits which resulted in the sale to said Webers.

From the finding of facts the court concluded the law to be:

1. That the certificate of purchase, in the hands of James L. Orr, entitled him to hold a lien on the said real estate for $ 400 and interest, but that the taking of a deed from the sheriff did not pass to him the title to such real estate.

2. That the conveyance from the said Orr to appellant vested no title in her, but she became the owner of his lien under said certificate and sheriff's deed.

3. That appellee's mortgage was a fraud upon the creditors of Theodore Roeder, and void against all creditors sought to be defrauded thereby.

4. That as against the claim of appellant, said mortgage is not void, as such fraud was not intended to affect, and did not affect, appellant or either of the parties through whom she claims.

5. That appellee's mortgage is a valid lien upon the undivided two-thirds of said real estate, but inferior to the lien of appellant acquired through Orr.

6. That appellee had the right to pay the Locke judgment, for the...