Stalcup v. Dixon

• Decision Date: 20 December 1893
• Docket Number: 16,548
• Citation: 35 N.E. 987,136 Ind. 9
• Parties: Stalcup et al. v. Dixon
• Court: Indiana Supreme Court

35 N.E. 987

136 Ind. 9

Stalcup et al. v. Dixon

No. 16,548

Supreme Court of Indiana

December 20, 1893

From the Greene Circuit Court.

The judgment is affirmed.

J. D Alexander and H. W. Letsinger, for appellants.

W. W Moffett and C. E. Davis, for appellee.

OPINION

McCabe, J.

The appellee sued the appellants in the court below, to recover the possession of certain lots in the town of Worthington, in Greene county, Indiana, alleging that he was the owner thereof in fee and entitled to the possession thereof, and that appellants were in possession without right, and unlawfully kept him out, and to quiet his title.

The second paragraph of appellee's complaint disclosed that his title to the lots in question was an auditor's deed on a sale for taxes, and that such tax sale was not valid and asking to foreclose the lien for taxes, penalty, and interest.

The appellantEli Stalcup, filed a cross-complaint asking that his title be quieted.Issue, trial by the court, special finding, conclusions of law, and judgment thereon in favor of appellee, foreclosing the lien for the amount of such tax, penalty, and interest, and a decree quieting appellant's title to said lots.The assignment of errors calls in question the conclusions of law.

The special finding is as follows:

"1st.That the plaintiff purchased, on March 5th, 1883, at public sale for delinquent taxes, the following real estate (describing the same lots described in the complaint) for the sum of $ 46.80.

"2d.That said sale was made by the treasurer of said county, and the auditor of said county acted as clerk of such sale.

"3d.That said sale was duly advertised in the Bloomfield News, a newspaper of general circulation, printed and published in said county, and by posting a copy of the notice thereof in a conspicuous place at the court house door and in a public place in each township in said county for three weeks prior to the day of sale.

"4th.That said sum so paid by the plaintiff was the tax duly and regularly assessed against said lots in said county up to said date for State, county, and township purposes for the year 1881, which had become delinquent and the current taxes thereon for 1882, together with the penalty, interest, and costs.

"5th.That appellantEli Stalcup derived his title through a sheriff's sale and deed on a decree foreclosing a mortgage on the lots.

"6th.That the auditor's deed was not attested by the treasurer of said county, and that the owner of the lots owned personal property in the said county at the date of said sale and long prior thereto, out of which said taxes might have been made.

"7th.That the defendant Stalcup was the wife of Eli Stalcup at the date of his purchase of said lots under said foreclosure, and still remains his wife.

"8th.That said sale to plaintiff for taxes was made on the 5th day of March, 1883, and a certificate of such purchase was duly issued to him by the then auditor of said county, on the 6th day of March, 1883, therefor, which certificate of purchase was, in January, 1889, presented to Andrew J. Cox, the auditor of said county, by the holder thereof, and the deed in suit was then and there duly made and executed to the plaintiff by said auditor, on the 2d day of January, 1889.

"9th.That since said purchase of said lots by the plaintiff, he has paid taxes thereon to the treasurer of said county for State, county, and township purposes, which were regularly assessed thereon for the years 1884 to 1887, both inclusive, the aggregate sum of $ 44.10.

"10th.That plaintiff is entitled to twenty per cent. interest per annum on the said $ 46.80 so paid March 5th, 1883, as aforesaid, from that date, and the same rate of interest on each of said subsequent payments from the date thereof.

"11th.That the said $ 46.80, so paid March 5th, 1883, with twenty (20) per cent. interest thereon per annum, amounts to $ 128.70, and the said subsequent payments of taxes with the interest thereon on each sum, at the same rate of interest per annum, amounts to $ 97.53.

"12th.That the defendantEli Stalcup is the owner in fee of the said real estate, subject to the lien of the plaintiff for said purchase money, taxes, penalty, interest and costs, amounting in all to the sum of $ 226.23.

"John C. Briggs, Judge.

"Dated December 12th, 1891."

And the court stated the following conclusions of law:

"1st.That the plaintiff is not entitled to a decree quieting title to said real estate in his favor.

"2d.That the defendant, Eli Stalcup, is entitled to have his title quieted as against plaintiff, subject to the lien of the plaintiff thereon, for $ 226.23 for purchase money at the sale for taxes and taxes paid on said real estate since the 5th day of March, 1883.

"3d.That the plaintiff is entitled to a foreclosure of his lien on said lots for $ 226.23, and that the same be declared a first lien thereon.

"John C. Briggs, Judge.

"Dated December 12th, 1891."

The error which appellants principally complain of is that the trial court allowed too much interest, and hence the finding and judgment foreclosing the lien was for a sum greater than appellee was legally entitled to.Though the assignments of error are six in number, they present and raise no other question than that of the correctness of the conclusions of law.

There was no motion for a new trial or for a venire de novo.

It is true the rate of interest, or whether appellee was entitled to any interest, or during what part of the time he was so entitled, were all questions of law.The only conclusion of law stated having any bearing on that question is the third and last one, which concludes that appellee is entitled to a foreclosure of his lien for $ 226.23.The objection to this conclusion is not that appellee was not entitled to a foreclosure of his lien for some amount, but that it is for a larger amount than appellee is legally entitled to.That is, the amount found due for the taxes for which the sale was made, subsequent taxes paid, penalty, interest, and cost.

Appellants concede that a part of it was due, and that appellee was entitled to a foreclosure for such amount.It is true the tenth special finding states a conclusion of law, namely, that appellee is entitled to twenty per cent. interest on the amount of tax for which he had bid in the lots and the subsequent taxes paid by him.

In a special finding of facts, the conclusions of law must embrace matters of law only and not matters of fact.Kealing v. Vansickle,74 Ind. 529.

And likewise conclusions of law erroneously cast into the finding of facts do not control, for the court must act upon the facts found.City of Indianapolis v. Kingsbury,101 Ind. 200.

The rule thus stated has for its foundation a good reason.When the trial is by the court its finding of the facts takes the place of the verdict of a jury.When the court states its conclusions of law it acts in an entirely different capacity, in no sense that of a jury.

The finding of facts is as separate and distinct from the conclusions of law as if the facts had been found by a jury and the conclusions of law stated by the court.Now, if the jury should fail to find some essential fact in their special verdict, the court, in declaring the law thereon, could not supply the missing fact.So, too, if the jury should state in their special verdict a conclusion of law which the court omits in its declaration of the law arising thereon, such conclusion of law in the verdict could not be looked to in aid of the declaration of the law by the court.So there being no conclusion of law stated, the appellee was entitled to twenty per cent. interest, and if, as a matter of law, he was not entitled to that much interest, the final conclusion of law, which really embraced the twenty per cent. interest, was erroneous.

But we have looked into the question, and find that appellants have no cause to complain, even of the conclusion of law cast into the special finding of facts, as to the interest.

They first contend that as the appellee did not take his auditor's deed on the tax sale until the 2d day of January, 1889, no interest was allowable after two years and six months next following the date of the tax sale on March 5th, 1883, namely, from and after September 5th, 1885, to the day of trial, to wit, December 12th, 1891, no interest could be legally allowed at all on the amount due appellee on his certificate, which would be a little more than six years and three months; and that the trial court did embrace in its finding interest during said period.

This contention is based on the provisions of the R. S. 1881, section 6466, reading as follows:

"The owner or occupant of any land sold for taxes, or any other person having an interest therein, may redeem the same at any time during the two years next ensuing, in the following manner: If redeemed within six months from the day of sale, he shall pay to the county treasurer, for the use of the purchaser, his heirs or assigns, the full sum of the purchase-money named in his certificate, and all the costs of sale, together with ten per centum in addition; if redeemed after six months and within one year, h...