State ex rel. Woodward v. Smith, 12485.

• Decision Date: 24 June 1926
• Docket Number: No. 12485.,12485.
• Citation: 152 N.E. 836,85 Ind.App. 56
• Parties: STATE ex rel. WOODWARD, Auditor, et al. v. SMITH et al.
• Court: Indiana Appellate Court

85 Ind.App. 56

152 N.E. 836

STATE ex rel. WOODWARD, Auditor, et al.

v.SMITH et al.

No. 12485.

Appellate Court of Indiana, in Banc.

June 24, 1926.

Appeal from Wells Circuit Court; J. W. Hamilton, Judge.

Action by Jennie B. Smith against the State, on the relation of Wilson A. Woodward, Auditor, and others. Judgment and decree for plaintiff, and the defendant named and others appeal. Affirmed.Virgil M. Simmons, of Bluffton, for appellants.

Charles E. Sturgis, Robert W. Stine, and Elmore D. Sturgis, all of Bluffton, for appellees.

NICHOLS, J.

Action by appellee Smith against appellants on a promissory note for $2,000 executed by appellees Jessie Olive Kitchen, Ruth Annetta Roe, and Masyl G. Baker, and to foreclose a mortgage securing the same on certain real estate situated in Wells county, Ind., and which mortgage was executed by said appellees Baker, Roe, Kitchen, and their husbands. The relief sought by the action was a personal judgment against the payors of the note and decree of foreclosure of the mortgage as to all defendants, an order for the sale of the real estate described in the mortgage to satisfy the judgment, and to remove and cancel a judgment lien against the said real estate asserted by the state of Indiana for the use of the common school fund. There was a personal judgment for appellee against the makers of the note, and a decree foreclosing the mortgage, with further judgment that the judgment on the school fired mortgage had been fully paid and an order that it be released of record. Appellant assigns as error the court's conclusions of law. It appears by the special findings, briefly stated, that on and prior to December 15, 1903, Emma I. High was the owner in fee simple of 94.50 acres of real estate in Wells county, Ind., and on that date she and her husband, Samuel D. High, executed their note to the state of Indiana for the use of the common school fund for the sum of $1,800, as evidence of a loan made from said school fund on said date, together with a school fund mortgage to secure the same. After the execution of said note and mortgage, Emma I. High died intestate, leaving as her only heirs at law her husband and three daughters, Jessie Olive Kitchen, Masyl G. Baker, and Ruth Annetta Roe.

At the time of the death of said Emma I High, said note was unpaid and said mortgage was a first lien on said 94.50 acres of real estate, and remained unsatisfied. Thereafter an action for the partition of said land was commenced in the Wells circuit court, and prosecuted to final judgment and 49.5 acres of said 94.50 acres were set off to the said Samuel D. High as his interest therein, and 45 acres of said real estate were set off to said daughters, as tenants in common and as their interest therein.

After said 49.5 acres of real estate were set off to said Samuel D. High, he executed his note for the sum of $2,000 to Albert H. Knight and Oris A. Knight, and at the same time his mortgage on said 49.5 acres of real estate to secure the payment of said note. Thereafter the state of Indiana, on the relation of Clement T. Kain, auditor of Wells county, commenced an action in the Wells circuit court for personal judgment on said note against said Samuel D. High and to foreclose said school fund mortgage, making defendants to its said complaint the said High, the owner of said 49.5 acres, and the said daughters the owners of said 45 acres, and their husbands, and said Knights.

Cross-complaint was filed and issues made and joined in said foreclosure proceedings, and on the 20th day of April, 1917, a final judgment and decree was entered in said cause on the school fund note and mortgage foreclosing the mortgage and ordering the sale by the sheriff, first of the 49.5 acres, and, if insufficient to pay and satisfy the school fund judgment, then to sell the 45 acres. A personal judgment and decree of foreclosure was also rendered on the Knight note, and a decree foreclosing the mortgage on said 49.5 acres securing the note with priority in favor of the school fund judgment.

On May 26, 1917, appellees Jessie Olive Kitchen, Ruth Annetta Roe, and Masyl G. Baker executed their note to Elizabeth Beeler for $2,000 and on the same...