Stockwell v. State ex rel. Johnson

• Decision Date: 06 May 1884
• Docket Number: 10,567
• Parties: Stockwell et al. v. State, ex rel. Johnson, Auditor
• Court: Indiana Supreme Court

101 Ind. 1

Stockwell et al. v. State, ex rel. Johnson, Auditor

No. 10,567

Supreme Court of Indiana

May 6, 1884

Reported at: 101 Ind. 1 at 12.

From the Gibson Circuit Court.

Judgment affirmed with costs.

A Gilchrist, L. C. Embree and T. R. Paxton, for appellants.

F. T. Hord, Attorney General, J. W. Ewing and C. O. Erwin, for appellee.

OPINION

Zollars, C. J.

This is an action by the State, on the relation of John W. Johnson, auditor of Gibson county, to foreclose a school fund mortgage executed by Willis S. Hargrove and wife, on the 12th day of November, 1866, to secure the payment of a note for one thousand dollars.

The defendants Stockwell and Viele demurred to the evidence. This was overruled, and a decree was rendered foreclosing the mortgage against all of the defendants. As to appellants Stockwell and Viele, the overruling of their demurrer to the evidence is the first and the important question for decision.

The complaint charges the execution of the note and mortgage by Hargrove and wife upon real estate in Gibson county, describing it, the recording of the mortgage in that county in January, 1867, the death of Hargrove and wife, and that since the execution of the mortgage the land has been conveyed to appellants Stockwell, Viele and Paxton, who claim to be the owners thereof; that they hold by privity of title with said Hargrove, and that their rights are junior to the lien of the mortgage in suit. A copy of the mortgage was filed as an exhibit, and as a part of the complaint. In the mortgage, the State and county are not given in the description of the land.

A joint answer by all of the defendants, setting up title in themselves by virtue of a sale of the land for taxes in 1877, was held insufficient on demurrer. The only remaining answers were a general denial and payment. To the latter, there was a reply of general denial. To make its case, the State introduced the following documentary evidence:

First. A deed for the land from John L. Key in 1864, to said Hargrove.

Second. The note and mortgage described in and filed as a part of the complaint, dated the 12th day of November, 1866, together with a certificate of the clerk and recorder of Gibson county, and an affidavit of Hargrove, which were upon the same paper with the mortgage, and were also filed with the complaint, as a part of the mortgage. These were made for the purpose of procuring the loan from the State. In this certificate, it is stated that the land mortgaged by Hargrove is in Gibson county, this State, and had not been conveyed or encumbered by Hargrove, nor by any person under whom he claimed title. In the affidavit by Hargrove, he stated that he was the legal owner of the land, and traced the title from himself, through mesne conveyances, back to the United States.

Third. A deed from the sheriff of Gibson county to Caleb Trippet for thirty-five acres off of the east end of the land, dated the 10th day of May, 1876. This deed is based upon a judgment in favor of Trippet against Hargrove in 1874. It appears from the recitations in the deed, that the whole of the land described in the mortgage was bought in by Trippet; that he received a sheriff's certificate for the whole, and that before getting a deed, he so assigned the certificate to one Lucius French as to entitle him to the west forty-five and one-half acres of the land so purchased. Hence the sheriff's deed to Trippet conveyed only the remaining east thirty-five acres.

Fourth. A deed from Trippet to appellant Thomas R. Paxton for this thirty-five acres, dated March 2d, 1878.

Fifth. A deed from the sheriff of Gibson county to appellants Stockwell and Viele, for the forty-five and one-half acres above mentioned, dated April 20th, 1880. This deed is based upon a judgment and decree in favor of said appellants, against said Lucius French, rendered at the August term, 1878, of the Gibson Circuit Court.

There was oral testimony on the part of the State as to the genuineness of the signatures of Hargrove and the clerk and recorder to the several documents executed by them as above; that during the year 1866 Hargrove lived on the Key farm in Gibson county; that during that year he was auditor of Gibson county, and that he died in 1879.

The above and foregoing was the evidence, substantially, in favor of the State. For the purpose of a decision upon the ruling of the court below, in overruling the demurrer to the evidence, we need not set out the evidence offered by appellants.

In the case of Lindley v. Kelley, 42 Ind. 294, it was held that upon a demurrer to evidence no advantage can be taken of any defect in the pleadings as a reason for sustaining the demurrer; that upon such demurrer the court will infer from the evidence every conclusion that the jury could reasonably have inferred from it; that all of the facts of which there is any evidence are admitted, and all conclusions which can fairly and logically be deduced from those facts.

In the case of Ruff v. Ruff, 85 Ind. 431, it was held that by demurring to the evidence when conflicting, the demurring party withdraws from the consideration of the court whatever is favorable to himself, and consents that whatever reasonable inferences can, shall be drawn from the evidence against him.

In the case of Ruddell v. Tyner, 87 Ind. 529, the same rule was announced, and it was further held, that where there has been a demurrer to the evidence, a motion for a new trial presents no question.

In the case of Talkington v. Parish, 89 Ind. 202, it was held that a demurrer to the evidence admits all facts which the evidence tends to prove, and all reasonable inferences which may be drawn from them, but that forced and violent inferences are not admitted.

In the case of Kincaid v. Nicely, 90 Ind. 403, it was held that where, upon a demurrer to the evidence, there is evidence tending to sustain the party having the burden of the proof, the demurrer should be overruled.

In the case of Miller v. Porter, 71 Ind. 521, it was said, that by demurring to the evidence, the demurring party waives all objections to its admissibility, and admits as true every conclusion which the jury could reasonably have drawn from it.

We need not here determine as to the competency of all of the evidence on the part of the State. By demurring to it, appellants Stockwell and Viele have treated it as competent, and consented that such weight shall be given to it, and such inferences drawn from it, as the rules of law will warrant. Thus regarding the evidence, and applying the rules established by the above cases, the evidence, at least, tends to show that Hargrove was the owner, and in the possession, of the land at the time the mortgage was executed by him, and that the title came to him, through mesne conveyances, direct from the United States. This being so, whatever title appellants had, if any, was subordinate to his and to the mortgage in suit.

If any force be given to the recitation in the sheriff's deed to Trippet, that French, by the assignment of the certificate, acquired an interest in the forty-five and one-half acres, then it clearly appears that appellants Stockwell and Viele derived title through Hargrove subsequent to the mortgage. In such case, they were proper and necessary parties defendants. If no force is to be given to such recitation, then there is nothing to show that French had any interest in or title to any portion of the land, and consequently nothing to show that Stockwell and Viele had any title, although they had a sheriff's deed based upon a judgment against French. Having such deed, they were proper parties defendants. If they indeed had no title, it is difficult to see how they could be injured by the foreclosure. They had a deed, and if they claimed anything under it, although they acquired no title by it, appellee was entitled to a foreclosure against them. Upon a demurrer to the evidence, whatever the rule may be in other cases, it was not essential that the proof should correspond exactly to the averment in the complaint, that Stockwell and Viele held in privity with Hargrove. They were brought into court to answer to the complaint charging that they claimed an interest, and that it was junior and subordinate to the mortgage. This was a challenge to them to set up whatever title they had or claimed to have. Hose v. Allwein, 91 Ind. 497. In response to this challenge, they set up no title except the tax title, and this went out upon demurrer.

If these appellants held or claimed through or under Hargrove, they were bound to take notice of the school mortgage, although it was not recorded as required by the general registry laws. Deming v. State, ex rel., 23 Ind. 416. If they did not so hold or claim, it is immaterial whether or not they had any notice of the mortgage, as French, from whom they claim to have derived title, unless he derived his title through Hargrove and subsequent to the mortgage, is not shown to have had any title whatever. As against the showing in favor of title in Hargrove, by a direct line of conveyances from the United States, we can not surmise, upon the demurrer to the evidence, that French may have, in some way, acquired a title superior to the lien of the mortgage.

It is insisted further by these appellants, that the demurrer to the evidence should have been sustained because of a failure to give the county and State, in the description of the land in the mortgage. In their argument upon this point, which is elaborate and able, we are asked to overrule the case of Dutch v. Boyd, 81 Ind. 146, in which it was held, that it appearing upon the face of the mortgage and from the certificate of acknowledgment, that the mortgage was executed in this State, between residents of the...