State, ex rel. Longfellow v. Wimer

• Decision Date: 29 May 1906
• Docket Number: 20,790
• Citation: State, ex rel. Longfellow v. Wimer, 77 N.E. 1078, 166 Ind. 530 (Ind. 1906)
• Parties: State, ex rel. Longfellow, Auditor, v. Wimer
• Court: Indiana Supreme Court

77 N.E. 1078

166 Ind. 530

State, ex rel. Longfellow, Auditor, v. Wimer

No. 20,790

Supreme Court of Indiana

May 29, 1906

From Tipton Circuit Court; J. F. Elliott, Judge.

Suit by Jonas A. Wimer against Thomas W. Longfellow as Auditor of Tipton County and others. From a decree in favor of plaintiff on his complaint and on the cross-complaint of the State of Indiana, on relation of Thomas W. Longfellow, as Auditor of Tipton County, the cross-complainant appeals. Transferred from the Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Oglebay & Oglebay, for appellant.

Beauchamp Mount & Proctor and John P. Kemp, for appellee.

OPINION

Jordan, C. J.

Appellee, as plaintiff below, commenced this suit to quiet title to certain described real estate situated in Tipton county, Indiana. Thomas W. Longfellow, auditor of Tipton county, the board of commissioners and Francis H. Wheatley were made defendants to the suit.

Briefly stated, the first paragraph of the amended complaint alleges that the plaintiff is the owner in fee simple of the real estate described, which had been formerly sold as school lands, and a certificate of such sale issued to the purchaser; that the defendant Francis H. Wheatley had paid in full the purchase price to the treasurer of said county and that the auditor thereof had executed a deed of conveyance to him for the premises; that this deed had been lost, or mislaid, and that the defendants claim an interest in and to said lands.

The second paragraph of the complaint is in the statutory form, and thereunder plaintiff seeks to quiet his title.

By the third paragraph he claims title by reason of adverse possession for more than twenty years.

Part of the relief demanded by the first and second paragraphs is that the auditor of the county be ordered to execute a deed to the plaintiff.

The appellant in this appeal appeared to the action and filed a cross-complaint, making the plaintiff, Wimer, the sole defendant thereto. The cross-complaint alleges that the balance of the purchase money due the school fund in the sum of $ 500 is unpaid and that plaintiff had notice of this claim at the time he purchased said lands, and that the relator brings into court and tenders to plaintiff a deed to said real estate, duly executed in all things in accordance with the law regulating the making of deeds for school lands, which deed of conveyance had been duly entered and recorded in the records of the Board of Commissioners of the County of Tipton by the county auditor prior to the tender thereof. Wherefore the relator says there is due him as auditor, to the benefit of the school fund of congressional township twenty-one, the sum of $ 500 as the unpaid balance of the purchase price of said lands and interest thereon, and the demand is that said amount be adjudged the first lien on said real estate, and upon failure to pay the amount so found due within thirty days the land be ordered sold to pay the same, and upon the payment of the purchase price the sheriff of Tipton county shall execute to the purchaser a good and sufficient deed, etc.

The issues were duly joined between the plaintiff on his amended complaint and the defendants Thomas W. Longfellow, auditor of Tipton county, and the board of commissioners of said county. Plaintiff, as the sole defendant to the cross-complaint filed by the State, on relation of the auditor, answered the same (1) by a general denial, and (2) by plea of payment; and upon these pleadings the issues tendered were joined between the parties on the cross-complaint. There was a trial by court and a special finding of facts. Among others, the following are the facts disclosed by the special findings: The auditor of Tipton county, Indiana, on March 28, 1857, at private sale sold to John Peterson for the price of $ 210 the lands described in the amended complaint and the cross-complaint of appellant herein. The auditor issued to Peterson a certificate of purchase, which is set out in full in the finding. At the time of the sale Peterson paid the sum of $ 52.50 as part of the purchase price. The certificate of purchase provided that "if said Peterson shall pay, or cause to be paid, the interest in advance on the unpaid purchase money as it annually accrues, and the principal by the time it becomes due and payable, then said Peterson, or his assigns or legal representatives, shall be entitled to a deed in fee simple for said lands, to be executed by the county auditor according to law; but on failure of said Peterson to pay, or cause to be paid, the interest as it annually accrues, or the residue of the purchase money by the time same becomes due, the contract shall be forfeited and the land may be sold by the county auditor according to law."

Peterson, in 1859, assigned his certificate of purchase to John Puckett. The latter, in 1860, assigned it to Benjamin F. Brown and he, in 1865, assigned it to Francis Wheatley. All of these several assignments were duly acknowledged and recorded in the office of the county recorder. Wheatley and his wife, on April 6, 1896, conveyed the land by warranty deed to Oliver P. and Susan Campbell. On December 16, 1901, the latter parties received a deed of conveyance to the lands, which deed was executed by the auditor of Tipton county. The Campbells thereafter, in 1902, sold and conveyed the lands to one Hinkle, who, in 1903, sold and conveyed the premises to the plaintiff, Wimer. After the Campbells purchased the land, Oliver P., on May 4, 1901, appears to have filed a petition before the Board of Commissioners of the County of Tipton, alleging therein that the purchase price of said lands had been fully paid by said Francis Wheatley, but that the county auditor had failed to execute a deed for said real estate, and the petition prayed that a deed be executed.

The board of commissioners appears to have granted the petition and on December 10, 1901, the county auditor...