Shirk v. Andrews
| Decision Date | 08 January 1884 |
| Docket Number | 10,940 |
| Parties | Shirk v. Andrews |
| Court | Indiana Supreme Court |
From the Huntington Circuit Court.
Judgment reversed.
L. P Milligan and O. W. Whitelock, for appellant.
W. H Trammel, T. L. Lucas, J. C. Branyan and M. L. Spencer, for appellee.
The complaint of the appellant alleges that he was the holder of several notes executed by Isaac Beal; that to secure their payment Beal executed a mortgage on eighty acres of land; that Flora Andrews, the appellee, purchased an interest in the land with full knowledge of appellant's mortgage; that after her purchase, but without any knowledge of it, he instituted a suit for foreclosure, and obtained a decree; on this decree the land was sold and bought by him; that appellee was not made a defendant to the action, for the reason that the appellant believed the land to be owned by her husband, who was at one time the owner; that after the execution of a deed by the sheriff, the appellant sold and conveyed the land to Jacob Krieg, and that he prosecutes the action for Krieg's benefit.
The second paragraph of the appellee's answer sets forth the proceedings in the foreclosure suit, the sale thereon, and avers that the mortgage and judgment were thereby satisfied. To this answer a demurrer was overruled, and upon this ruling rests the assignment of error.
Appellee makes the point that even if the answer was bad it was not error to overrule the demurrer, because it appears on the face of the complaint that the appellant is not the proper plaintiff. It is true that the rule is that a demurrer to an answer will search the record, and if the complaint is bad there will be no error in overruling it even if the answer is bad; but this general rule does not apply where the question is as to parties. It applies only where the merits of the action are involved. Generally, the question of proper parties can only be raised by answer or demurrer, and we think that it should be held in this case, that the question as to whether the appellant was the real party in interest ought to have been raised by demurrer or answer. Prior to the act of 1881 (R. S. 1881, section 1073), a deed made while another was in adverse possession was ineffectual, and actions to recover possession or quiet title must have been brought by the grantor, and, as this case is governed by the old rule, it may well be doubted whether it was not properly...
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...junior lienholder's interest even though Countrywide had sold the property to Fannie Mae. This procedure was approved in Shirk v. Andrews, 92 Ind. 509 (1884), where A loaned money to B, secured by a mortgage (as such, A was the senior lienholder). B subsequently conveyed the property to C (......
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Robertson v. Van Cleave
...rendered in a subsequent suit. Jefferson v. Coleman, 110 Ind. 515, and authorities cited, p. 517, 11 N. E. Rep. 465 et seq.; Shirk v. Andrews, 92 Ind. 509;Curtis v. Gooding, 99 Ind. 45. As the right of the appellants to a partition depends upon their interest in the land, it was proper to p......
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Alvin Johns v. James Wilson
...but he cannot recover the costs of the previous sale.' State Bank v. Abbott, 20 Wis. 570; Stackpole v. Robbins, 47 Barb. 212; Shirk v. Andrews, 92 Ind. 509; Brackett v. Banegas, 116 Cal. 278, 48 Pac. 90; Morey v. Duluth, 69 Minn. 5, 71 N. W. 694; Benedict v. Gilman, 4 Paige, 58; Georgia P. ......
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Robertson v. Cleave
...independent decree rendered in a subsequent suit. Jefferson v. Coleman, 110 Ind. 515, 11 N.E. 465, and authorities cited, p. 517; Shirk v. Andrews, 92 Ind. 509; Curtis v. Gooding, 99 Ind. As the right of the appellants to a partition depends upon their interest in the land, it was proper to......