Rout v. King
| Decision Date | 18 November 1885 |
| Docket Number | 11,794 |
| Citation | 3 N.E. 249,103 Ind. 555 |
| Parties | Rout v. King et al |
| Court | Indiana Supreme Court |
From the Adams Circuit Court.
Affirmed, with costs.
J. S Dailey, L. Mock, J. W. Headington, J. J. M. LaFollette and E G. Coverdale, for appellant.
R. S Peterson, E. A. Huffman, J. T. France, W. J. Vesey and J. T. Merryman, for appellees.
It appears from the record in this case that certain real estate in Adams county had been sold by a commissioner appointed by the court for that purpose, in a partition proceeding.
John W. Rout, the appellant, bid the land off at forty-five hundred dollars. Three thousand dollars of the purchase-price was paid in cash, and for the residue the purchaser gave his note, payable to the commissioner, with one King as surety. A certificate of purchase was thereupon issued to Rout, reciting that upon confirmation of the sale, and full payment of the purchase-price, he would be entitled to a deed. The sale was reported to and confirmed by the court, and the money paid was distributed to the persons entitled to receive it.
When the note for the deferred payment matured, the purchaser neglected to make payment, and the commissioner, without the order of the court, sued the makers of the note, and recovered judgment against the one as principal and the other as surety.
The purchaser, who it is alleged was insolvent, assigned the certificate of purchase to his wife. This, it was charged, was done for the purpose of defrauding the surety. The judgment remaining unpaid, King and the commissioner, each by separate petitions, in which the facts were stated at length, applied to the court for an order that the commissioner should re-sell the land. The purchaser, having been duly notified, appeared and resisted the applications thus made. After overruling separate demurrers to the several petitions, upon an issue made, the court ordered that in default of payment of the unpaid purchase-money at the end of ninety days, the commissioner should advertise and re-sell the land. It was ordered that out of the proceeds the judgment previously taken against the purchaser and his surety should be first paid, and that the residue should be brought into court to abide its further order.
From this order the purchaser has appealed, and the errors assigned bring into question the power of the court to order a re-sale on the facts stated in the several petitions.
The contention of the appellant is that King, who was surety for the purchaser, had no such relation to the case as entitled him to intervene by petition, and that as the commissioner might have proceeded to collect the money from the surety, or by a foreclosure of the vendor's lien and sale of the land, his petition to re-sell should not have been entertained.
In respect to both positions taken we think he is in error. Prior to the code of 1852 in this State, as in England, tenants in common might have been compelled to make partition by writ at common law, or by proceedings in equity. The usual and most appropriate mode, however, was by a resort to the courts of equity. Lease v. Carr, 5 Blackf. 353; Foust v. Moorman, 2 Ind. 17; Cox v. Matthews, 17 Ind. 367.
Since the code of 1852 went into force, the distinction in pleading and practice in actions at law and suits in equity, except as to the right of trial by jury in cases which formerly were of exclusive equitable cognizance, no longer exists.
The result is that the jurisdiction formerly exercised by common law courts, and courts of equity, is now combined in the courts having jurisdiction of proceedings in partition. In the exercise of its chancery powers, the court may settle both the legal and equitable rights of all the parties to the record; both are equally within its cognizance and protecting power. Martindale v. Alexander, 26 Ind. 104; Milligan v. Poole, 35 Ind. 64; Applegate v. Edwards, 45 Ind. 329; Ferris v. Reed, 87 Ind. 123; Elrod v. Keller, 89 Ind. 382.
As the court in which this proceeding was pending had power to exercise chancery jurisdiction, it results that both the purchaser and his surety were subject to its control and protection. In 2 Daniell Ch. Pr. 1061 n., it is said: Mosby v. Hunt, 9 Heisk. 675.
In the case of Wood v. Mann, 3 Sumn. 318, 30 F. Cas. 458, it was said by Story, J., that the purchaser under a decree in chancery as well as his surety on a bond given to secure the deferred payments of purchase-money, become parties to the proceedings. The learned judge said further: In re Attorney General v. Continental Life Ins. Co., 94 N.Y. 199; Dunham v. Minard, 4 Paige Ch. 441.
As King, by becoming surety for the purchase-money, became also a party to the proceedings in this case, he occupied such relation to it as that he could with propriety invoke the aid of the court for his protection.
The inquiry then remains, was it within the power of the court to order a re-sale of the property? That it was seems to be abundantly settled both on principle and upon authority.
Sales in cases of this kind are made in pursuance of the order or decree of the court. The commissioner appointed is nothing more than the instrument through whom the sale is accomplished; the order of the court is made...
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