Stuart v. Brown

Decision Date10 October 1893
Docket Number16,233
Citation34 N.E. 976,135 Ind. 232
PartiesStuart et al. v. Brown et al
CourtIndiana Supreme Court

From the Fountain Circuit Court.

The judgment is affirmed, with costs.

H. H Dochterman and D. W. Simms, for appellants.

C. M McCabe and J. Bingham, for appellees.

OPINION

Dailey, J.

This was an action by the appellees, against the appellant Zachariah Stuart, who was the purchaser of the rents and profits of certain real estate, at sheriff's sale, and the other persons named as appellants, who were judgment defendants in the judgment and decree, to set aside such sale.

The appellant Stewart demurred to each paragraph of complaint.

The court sustained the demurrer as to the second, and overruled the same as to the first paragraph of the complaint, to which Stuart excepted. Stuart answered the remaining paragraph of the complaint by a plea in denial, with request that if the sale be set aside he be subrogated to the rights of plaintiffs. The cause was submitted to the court for trial and at the request of said Stuart the court made a special finding of facts and stated conclusions of law thereon. There were two conclusions of law, and the appellant Stewart excepted to each.

These conclusions were such that a judgment was entered setting aside said sheriff's sale and subrogating appellant Stewart to the rights of the judgment plaintiff in the judgment and decree on which the sale was made. From the judgment, said Stewart has appealed to this court, and made his codefendants coappellants, and caused notice of the appeal to be served upon them and the appellees.

The appellant Stuart has assigned as errors against him the following:

1st. That the court erred in overruling the demurrer of said Stuart to the first paragraph of the complaint.

2d. That the court erred as against Stuart in its first conclusion of law.

3d. That the court erred as against said Stuart in its second conclusion of law.

The appellant Stuart declines to discuss the first assignment of error, challenging the sufficiency of the complaint. We therefore proceed to the consideration of the questions in the case arising on the second and third assignments of error.

These assignments of error call in question the conclusions of law. If the first conclusion of law was wrong, so was the second, and so we may consider the assignments of error together. The first conclusion of law was "That the plaintiffs are entitled to have the sheriff's deed and sale set aside."

Whether the conclusion of law is correct, depends on the findings of fact on which it is based.

The findings of fact are as follows:

1st. The court finds that the premises mentioned and described in the complaint were owned by Simon Brown at the time of his death.

2d. That Simon Brown, by his last will, devised said premises, for life, to the plaintiffs, with remainder in fee to their children, and, by his will, specially charged the plaintiffs with the taxes assessed against the same, and provided that on the failure of the plaintiffs to pay said taxes, his executor should take charge and possession of said lands, or so much thereof as should be necessary for the purpose, and apply the rents to the payment of such taxes, and that Simon Brown died on the 6th day of May, 1874.

3d. The court further finds that after the death of Simon Brown, the plaintiffs failed and neglected to pay the taxes charged and assessed against said lands, and that said premises were sold by the county treasurer for the taxes charged and assessed against said land for the years, to one Sampson Reed, and that no one redeeming said land from said tax sale the auditor of said Fountain county executed to said Reed a tax deed therefor.

4th. The court further finds that afterwards the plaintiff Esau Brown procured one J. Mahlon Coffing to purchase the interest of Sampson Reed in said premises, under a verbal agreement that said Coffing should purchase said tax title and foreclose, by due procedure in court, the lien given by statute on the premises to purchasers of lands at void tax sales, and that said premises should then be, by order of said Coffing, sold at sheriff's sale to pay said decree, and that at said sale Coffing should buy in said property and hold the same for the use and benefit of said plaintiffs until the rents thereof should repay said Coffing the amount by him advanced to pay said tax lien and the costs of said foreclosure suit, with interest thereon, and also pay to said Coffing a debt owing by the plaintiff Esau Brown to said Coffing, and should thereupon convey said premises to said plaintiffs or their children.

5th. The court further finds that under and pursuant to said agreement, the said Coffing did purchase, from said Reed, his interest in said premises under said tax deed, and that said Coffing did, on the 8th day of March, 1890, procure a decree from the Fountain Circuit Court foreclosing said tax lien upon said premises, for the sum against the plaintiffs and the defendants, other than Zachariah Stuart; that said Coffing procured a decretal order to issue, by the clerk of said court, directing the sheriff of said county to sell said premises to pay and satisfy said lien, and that, on the 7th day of June, 1890, the said sheriff of said county sold the rents and profits of said premises, for a term of seven years, to the defendant Zachariah Stuart, for the sum of $ 455.82, the principal, interest and costs due on said decree, which sum said Stuart paid in cash, and said Coffing, the plaintiff in said decree, received said sum from the sheriff, and receipted said officer therefor upon said writ.

6th. The court further finds that the rents, issues and profits of said premises for the term of seven years were, at the time of said sale, fairly worth $ 1,500.

7th. The court further finds that said premises consisted of a farm of one hundred and forty acres, and that at the time said decree was so rendered as aforesaid, the defendant Zachariah Stuart had leased sixty acres of the same from the plaintiffs, for a period of five years, for the annual rental of $ 225, for which sum he had executed his notes, payable, as said rent became due, to the plaintiffs, two of which notes had, prior to said sheriff's sale, been assigned by the plaintiffs, under such circumstances as to preclude the defendant from making any defense thereto, and that a third note was, by the plaintiffs, with the consent of said Stuart, assigned to J. Mahlon Coffing, who had, at the time, full notice of the consideration for said note as security for the payment of a debt from Emma Brown to said Coffing, and that said defendant Stuart was not a party to said proceeding to foreclose said tax lien, nor was his lease, though in writing, of record in the recorder's office of said county.

8th. The court further finds that it was a part of the agreement of said Coffing and the plaintiffs that he, the said Coffing, would protect the rights and interests of said Stuart under his lease.

9th. The court further finds that the plaintiffs had a large family of children, some of whom were born prior to the death of Simon Brown, and some subsequent to the death of Simon Brown, and that plaintiffs conceived the idea that all of their said children born subsequent to the death of Simon Brown would be excluded from any share in said lands upon the death of the plaintiffs, and that their object and purpose in entering into the agreement heretofore set out, with said Coffing, was to procure the title to said lands to be so fixed that upon the death of the plaintiffs their children would all share alike in the same.

10th. The court finds that neither of the plaintiffs attended said sale, but relied upon said Coffing to bid off said property for them at the same.

11th. The court further finds, that on the day fixed by the sheriff for the sale of said premises, the executor of the will of Simon Brown appeared at said sale and proposed to bid off the rents and profits of said lands for a sum sufficient to satisfy said sum, rather than have the fee in said lands sold; that the defendant Stuart appeared as a bidder, and said Coffing also appeared, and that for the purpose of avoiding competition from said Coffing, as a bidder at said sale, the defendant Stuart agreed with said Coffing to bid off the property sold in his, Stuart's, name, but really for said Coffing, and that said Coffing should receive the sheriff's deed for said premises, in his own name, but should protect the interests of Stuart under his lease.

12th. The court further finds that, relying upon the promises of said defendant Stuart, said Coffing did refrain from bidding on said property when so offered by said sheriff for sale, and that the same was struck off and sold to said Stuart, without competition, for the sum of $ 455.82, and that afterwards said Stuart refused to comply with his said contract and agreement with said Coffing.

13th. The court further finds that at the time said Stuart bid off the premises, as aforesaid, and at the time of making the agreement with said Coffing to purchase said lands for him, the said Coffing, said Stuart had full notice and knowledge of the agreement between the plaintiffs and said Coffing with respect to said lands.

14th. The court further finds that the attorney for the plaintiffs was present at the sale, and was fully cognizant of the agreement between Coffing and Stuart in reference to bidding off the property at the sheriff's sale.

15th. The court further finds that said sale fully paid and satisfied said decree, and that the sheriff executed a deed of lease to said defendant conveying to him said premises for the term of seven years.

Counsel for appellants, in criticizing the conclusions of law,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT