Shirk, Executor v. Whitten
| Decision Date | 29 April 1892 |
| Docket Number | 15,767 |
| Citation | 31 N.E. 87,131 Ind. 455 |
| Parties | Shirk, Executor, v. Whitten et al |
| Court | Indiana Supreme Court |
From the Marshall Circuit Court.
Judgment affirmed.
J. D McLaren, E. C. Martindale and J. Mitchell, for appellant.
W. B Hess, for appellees.
The appellant is the executor of Elbert H. Shirk, deceased, and prosecutes this suit in his representative capacity. He avers in his complaint that his testator bought of James N. Tyner a tract of land and received from Tyner a warranty deed on the 6th day of December, 1884; that the warranty was subject to a mortgage for one thousand dollars, executed by a grantor of Tyner on the 13th day of May, 1882; that on the 26th day of September, 1885, the testator paid the mortgage and it was entered satisfied of record; that, on the 7th day of February, 1883, a petition praying for the construction of a ditch was filed in the St. Joseph Circuit Court; that a judgment was entered establishing the ditch, and levying assessments upon lands for the cost of its construction; that among the lands assessed was the tract bought by the testator of Tyner, upon which an assessment for nine hundred and fifty dollars was levied; that the testator had no notice or knowledge of the proceedings for the establishment of the ditch. The prayer of the complaint is that the mortgage paid by the testator be declared a prior lien upon the land, and foreclosed for the benefit of the appellant.
No attack is made upon the proceedings on the petition for the establishment of the ditch, and we must assume that they were valid. As the appellant's testator bought the land after the proceedings were commenced, he could not successfully assail them except upon the ground that there was no jurisdiction, and as the court had jurisdiction of the general subject, the presumption is that it had jurisdiction of the particular case. We conclude, therefore, that the proceedings were valid and effective.
As the appellant's testator bought the land while the proceedings were pending in a court of competent jurisdiction, he was a purchaser pendente lite, and bound by the judgment rendered. He acquired title subject to the lien of the assessment, and he holds the land subject to that lien unless some principle of equity subordinates the lien of the assessment to the lien of the mortgage paid by him.
We know of no principle that will authorize the subordination of the assessment lien to that of the mortgage. Shirk paid the mortgage as the owner of the land, and, presumptively, as part of the purchase-money, so that there is no equity which will keep it alive to the destruction of the ditch assessment. Atherton v. Toney, 43 Ind. 211; Bunch v. Grave, 111 Ind. 351, 12 N.E. 514; Hancock v. Fleming, 103 Ind. 533, 3 N.E. 254; Robins v. Swain, 68 Ill. 197; Weiner v. Heintz, 17 Ill. 259; Mines v. Moore, 41 Ill. 273; Johnson v. Zink, 51 N.Y. 333; Russell v. Allen, 10 Paige, 249; Cleveland v. Southard, 25 Wis. 479. Where a person pays an encumbrance he is under a duty to pay, or for which he is primarily liable, he extinguishes it. Shields v. Moore, 84 Ind. 440; Kreider v. Isenbice, 123 Ind. 10, 23 N.E. 786. The cases to which we have referred are decisively against the appellant.
The theory of counsel that equity will subrogate the appellant to the rights of the mortgagee under the mortgage paid by his...
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