Sarver v. Clarkson

• Decision Date: 09 March 1901
• Docket Number: 18,904
• Citation: 59 N.E. 933,156 Ind. 316
• Parties: Sarver et al. v. Clarkson
• Court: Indiana Supreme Court

59 N.E. 933

156 Ind. 316

Sarver et al. v. Clarkson

No. 18,904

Supreme Court of Indiana

March 9, 1901

From the Montgomery Circuit Court.

Affirmed.

B Crane, A. B. Anderson and M. W. Bruner, for appellants.

T. E Ballard and E. E. Ballard, for appellee.

OPINION

Dowling, C. J.

The appellee, Clarkson, sued the appellant, Albert J. Sarver, to recover the possession of a tract of land. Upon her petition, Luella Sarver, the wife of the said Albert J., was, by the order of the court, made a defendant, and she filed her cross-complaint against Clarkson. Issues of fact were formed, and, upon the trial of the cause by the court, a special finding was made in favor of the appellee, and judgment was rendered thereon. The defendants below appeal. The errors assigned by the appellant Luella Sarver are upon the decisions of the court sustaining demurrers to the first and third paragraphs of her cross-complaint; overruling a demurrer to the first paragraph of the answer of the appellee to the second paragraph of her cross-complaint; and upon the conclusions of law against her. Albert J. Sarver separately assigns error upon the conclusions of law against him.

The material facts of the case as stated in the special finding were these: On September 27, 1893, the appellee, Clarkson sold, and by warranty deed conveyed, to the appellant Albert J. Sarver the land in Montgomery county, Indiana, described in the complaint and cross-complaint, and the grantee took possession under his deed. At the time of such sale the land conveyed was subject to a mortgage debt of $ 750, for which the grantor, Clarkson, was liable, and which the grantee, Albert J. Sarver, as a part of the consideration for said sale and conveyance, assumed and agreed to pay. For the balance of the purchase money, amounting to $ 2,670, he executed his promissory note to the appellee, Clarkson, payable three years after its date. Sarver afterwards paid off the mortgage debt of $ 750, but he failed to pay his note, or any part of the sum evidenced by it. Clarkson brought suit upon the note and to enforce his vendor's lien for the unpaid balance of the purchase money. The action was against Sarver alone, his wife not being joined as a defendant. Sarver appeared to the action, and such proceedings were afterwards had that Clarkson recovered a judgment against Sarver for $ 2,810 and costs, and for the enforcement of his lien by the sale of the land. It was found by the court that Sarver had no other property with which to pay said claim and debt. In pursuance of this judgment the land was afterwards sold by the sheriff and Clarkson became the purchaser. Sarver failed to redeem within the year, and a deed for the premises sold was executed by the sheriff to Clarkson. The value of the land was about $ 3,000. Sarver owned personal property of the value of $ 650, subject to execution, although the court found that he owned none. Luella Sarver was the wife of Albert J. Sarver when he bought the land from Clarkson, and is yet his wife. Sarver was, during all the period covered by these proceedings, a resident householder of said Montgomery county. The appellant Luella Sarver claims title to the one-third of the land in controversy, by virtue of her right as the wife of Albert J. Sarver, and she insists that on the sale of the premises under the judgment in favor of Clarkson her inchoate interest became vested and absolute, and that in this action she is entitled to have her title quieted and to partition. She asserts that, as she was not a party to the suit to enforce the vendor's lien for the unpaid purchase money, she is not bound by the judgment and proceedings in that case, and that her interest in the land was not affected by that judgment and sale. She contends that, even if the judgment against her husband and the sale thereunder were prima facie sufficient to cut off or destroy her inchoate interest in the land, yet she has the right to show that Clarkson waived his lien, and that the judgment directing the enforcement of the lien by the sale of the real estate was erroneous as to him, and void as to her, for the reason that at the time of the commencement of the action, and at the date of the judgment, her husband owned personal property situated in ...