Schissel v. Dickson

• Decision Date: 24 September 1891
• Parties: Schissel v. Dickson et al.
• Court: Indiana Supreme Court

129 Ind. 139

28 N.E. 540

Schissel

v.Dickson et al.

Supreme Court of Indiana.

Sept. 24, 1891.

Appeal from superior court, Marion county; Lewis C. Walker, Judge.

Action for partition by Cora B. Dickson and Simeon Dickson, her husband, against Otto Schissel. Judgment for plaintiffs. Defendant appeals. Affirmed.H. J. Milligan, for appellant. R. O. Hawkins, for appellees.

McBRIDE, J.

This was a suit for the partition of land. There was a trial by the court, a special finding of facts, and conclusions of law stated thereon. The case comes to us on exceptions to the conclusions of law. The facts as found by the court are substantially as follows: In the fall of 1868, one Mary J. Hilton died intestate in the city of Indianapolis, seised in fee-simple of certain real estate in that city, the property in controversy herein. She left surviving her, and as her sole heirs, her husband, William W. Hilton, and an infant daughter, Cora B. Hilton, who was born July 12, 1865. The daughter, on the 21st day of April, 1886, intermarried with one Simeon Dickson, and she and her husband are the appellees in this case. In the year 1875 said William W. Hilton, with his said infant daughter, removed to the state of Illinois, where they have ever since resided, and still reside. The county and state taxes on said real estate for the years 1873 and 1874 were allowed to become delinquent, and in February, 1875, the property was offered for sale at public sale to pay the same. It did not sell; and, July 31, 1875, the auditor of Marion county sold it at private sale to one Frank McWhinney for $44.97, the amount of the taxes. McWhinney afterwards paid the county and state taxes for the years 1875 and 1876, amounting to $12.80 and $12.85, respectively; and, there being no redemption from the sale, the auditor made him a deed on the 12th day of February, 1877. August 12, 1879, the city taxes on the property being delinquent in the sum of $257.84, the city treasurer sold it to McWhinney at private sale for that sum, and gave him a certificate of purchase.

September 5, 1879, McWhinney commenced suit in the superior court of Marion county to quiet his title to the property, making defendants thereto Wesley W. Hilton, ------ Hilton, (whose first name he alleged was unknown,) Henry H. Moon, and Emeline Moon. No process was ever served in said cause on either William W. Hilton or on the appellee Cora B. Dickson, neé Hilton, nor did either of them ever appear to said action, either in person or by attorney. An affidavit was filed in the following words: “State of Indiana, Marion county, ss.: Frank McWhinney vs. Wesley W. Hilton, ------ Hilton, Henry Moon, ------ Moon, his wife. The undersigned, being duly sworn, upon his oath says that he has been informed by Mr. Samuel Showalter, who says he is the agent for Wesley W. Hilton and ------ Hilton, (whose first name is unknown to this affiant,) and that he Showalter, is their agent for the purpose of renting and collecting rent of lot forty, (40,) in outlot one hundred and sixty-one in Indianapolis, Marion county, Indiana; and also informed affiant that said Hiltons both are non-residents of the state of Indiana, and have their residence in the state of Illinois; wherefore they cannot be served with summons in the state of Indiana, as the affiant verily believes. J. T. Lecklider. Subscribed and sworn to before me, this 5th day of September, 1879. Daniel M. Ransdall, Clerk.” On this affidavit there was publication of notice as to Wesley W. Hilton and ------ Hilton. The case came on for hearing at the November, 1879, term of the court, and was tried by the court without a jury. There was a finding of publication of notice as to the Hiltons, and a default of Wesley W. Hilton. A guardian ad litem was appointed for ------ Hilton, and Moon and wife appeared and answered. The guardian ad litem filed an answer for ------ Hilton. The court made a general finding that the tax-deed and tax certificate were insufficient to carry title, but were sufficient to and did give McWhinney a lien on the premises for all taxes and charges thereon paid by him, amounting to $491.65, including penalty and interest, which sum he was entitled to recover; and that ------ Hilton was the owner in fee-simple of the undivided two-thirds of the property, subject to its share of said $496.65; and that Henry H. Moon was owner of the undivided one-third of the property, subject to its share of said sum. The court thereupon ordered said ------ Hilton and said Moon to pay said sum into court within 20 days, together with all cost in the case, for the use of McWhinney. There was a further decree foreclosing the lien, and ordering that, in default of such payment, the premises be sold by the sheriff of Marion county as on execution, without relief from valuation and appraisement laws, and without right of redemption, and that, on such sale being made, a deed or deeds be at once executed to the purchaser or purchasers. The decree was rendered December 20, 1879, and on the 24th day of January, 1880, the property was sold by the sheriff. Moon bought the undivided one-third for $182.23, and McWhinney bought the undivided two-thirds for $364.46. On the same date Moon conveyed his interest to McWhinney. January 31, 1880, McWhinney and wife conveyed to one Lindley Vinton, and Vinton and wife conveyed to the appellant on the 4th day of November, 1881. Since that date the appellant has been in possession, claiming to be the owner of the entire premises. During that time he has collected rents amounting to $674, and has paid for taxes and repairs upon the property $225, of which $93.96 was for repairs, and $131.65 was for taxes. McWhinney also paid the following additional taxes: City taxes, 1879, $9.60; 1880, $13.60; and 1881, $12.35. County taxes 1879, $7.29; 1880, $7.84.

The court also found that the premises were indivisible without injury to the owners. The court thereupon stated its conclusions of law, holding that in the case of McWhinney v. Hilton et al. the Marion superior court acquired no jurisdiction of the appellee Cora B. Dickson, and that she was not bound by the decree in that case, but remained and is the owner of the undivided two-thirds of the property, subject to the said liens and equities of the appellant; that the decree and sale in that case were effectual to divest the title of William W. Hilton to the undivided one-third of the property, and that thereby and through the subsequent conveyances the appellant became and is the owner of such interest therein, and that he in the same manner succeeded to all the liens and equities of his immediate and remote grantors; that the tax-sale of August 28, 1879, by the officers of the city of Indianapolis to McWhinney was void, and transferred neither title nor lien, but that, by virtue of his prior purchase, July 31, 1875, for state and county taxes, McWhinney had acquired such an interest in the property that he had a right to pay said city taxes, and by virtue of such payment to have and hold a lien on such real estate for his reimbursement, the one-third interest which he afterwards acquired being chargeable with one-third of the amount paid, and appellee's two-thirds being chargeable with the residue; that as to all the state and county taxes paid by McWhinney before January 24, 1890, when he acquired title to the undivided one-third of the property, appellee was entitled to redeem, according to the provisions of the tax law approved December 21, 1872, by paying two-thirds of the sum total of such taxes, with 50 per cent. penalty thereon, and 6 per cent. interest on each payment from the respective dates thereof; that appellee is not chargeable with any penalty or interest on the amount paid at the sale for city taxes, nor with any penalty or interest on any taxes whatever since January 24, 1880; that after January 24, 1880, McWhinney and those claiming under him were tenants in common with appellee in the property, and as such were each liable to contribute, according to their respective interests, to the sums paid for taxes and repairs on the property, and were each entitled to share, according to such interest, in rents received for the same; and that on an accounting the tenant in common paying such taxes and repairs was entitled to a lien upon the share of the co-tenant to secure his reimbursement; that the appellee was not bound to make any tender to the appellant before instituting suit, for the reason that the amount, if any, due to the appellant could only be ascertained by an accounting, all the data for which were in the possession and knowledge of the appellant, who denied that the appellee had any interest in the property. The court, upon the foregoing basis, stated the account between the appellant and the appellee as follows: “The defendant aforesaid, [the appellant,] and those through whom he claims, have paid the amounts following, viz.: State and county taxes, paid by said McWhinney July 31, 1875, $44.97; total state and county taxes paid since July 31, 1875, and prior to 24th of January, 1880, $32.85; city taxes paid by McWhinney since August 28, 1879, and prior to 24th of January, 1880, $9.60; penalty of fifty per cent. on above, $43.71; interest on the above payments at the rate of six per cent. per annum from dates of respective payments, $68; city taxes paid by McWhinney at city tax-sale, August 28, 1879, $257.84; state and county taxes paid since January 24, 1880, $7.80; city taxes paid since January 24, 1880, $25.95; taxes paid by defendant, $131.05; repairs made by defendant, $93.96; total, $715.73.” The court thereupon charged the appellant with rents collected by him in the sum of $674. These sums were apportioned two-thirds to the appellee and one-third to the appellant, leaving a balance due to the appellant of $27.83, for which sum it was held that the appellant was entitled to have a lien on the undivided two-thirds of said...