Ætna Life Ins. Co. v. Stryker

• Decision Date: 04 April 1905
• Docket Number: No. 5,171.,5,171.
• Citation: 73 N.E. 953,38 Ind.App. 312
• Parties: ÆTNA LIFE INS. CO. et al. v. STRYKER.
• Court: Indiana Appellate Court

38 Ind.App. 312

73 N.E. 953

ÆTNA LIFE INS. CO. et al.

v.STRYKER.

No. 5,171.¹

Appellate Court of Indiana, Division No. 1.

April 4, 1905.

Appeal from Circuit Court, Pulaski County; T. E. Howard, Special Judge.

Suit by Jacob Stryker against the Ætna Life Insurance Company and others. From a decree in favor of complainant, defendants appeal. Transferred from the Supreme Court under Act March 12, 1901 (Acts 1901, p. 565, c. 247). Affirmed.

H. A. Steis and H. C. Petit, for appellants. Burson & Burson, for appellee.

MYERS, J.

On January 26, 1897, appellee began this action in the Starke circuit court against appellant James L. Alvey, also Anna Alvey, John Zurn, and Barbara Zurn, by complaint in one paragraph in the ordinary statutory form, seeking to recover the possession of 335 acres of land in Starke county, and for damages. To this complaint such proceedings were had that on March 17, 1897, defendants answered by general denial. On October 24, 1898, appellee, by leave of court, filed an additional or second paragraph of complaint, making James L. Alvey and the Ætna Life Insurance Company defendants. By this paragraph he sought to quiet his title to 335 acres of land in Starke county as against all the defendants, that an accounting be had of the rents and profits of said land while in the hands of the defendants, and that he be allowed to redeem from the sale of said land made by the sheriff by paying said defendants, or either of them, as the court may determine, such sum as the court may find to be due, if any, after deducting the reasonable value of the rents and profits received by the defendants or either of them, and that he have judgment and be awarded possession of said premises, and that the defendant Alvey be ejected therefrom, and for all other relief, etc. On the 5th day of December, 1899, appellee filed a supplemental complaint, demanding that upon the determination of this cause of action an accounting be had, and that defendants be required to account for the rental value of the land from the commencement of this action and up to the trial of the cause, which sum to be deducted from any sum that may be found to be unpaid on the note and mortgage described in the complaint, and that the court ascertain the equities of the parties, and make such order and decree as may be equitable, etc. Such proceedings were had that the venue of this action was changed to Pulaski circuit court, where the cause was put at issue and tried by the court without the intervention of a jury. The court, at the request of the parties to make special findings of fact and conclusions of law thereon, on October 1, 1902, submitted and filed special findings of fact and conclusions of law, in substance as follows:

(1) That on the 5th day of April, 1888, appellee was the owner in fee simple and in the peaceable possession of the land described in this complaint, and giving a particular description of the land.

(2) That on said 5th day of April, 1888, appellee borrowed of appellant the Ætna Life Insurance Company the sum of $3,000, for which he executed his note, together with certain interest coupon notes payable to said company, the principal note to become due five years from date; and, to secure the payment of said note and coupons appellee executed his mortgage upon the land described in his complaint, which mortgage provided that, upon default in the payment of any interest when due, the whole debt might be declared due and the mortgage at once foreclosed.

(3) That on the 23d day of August, 1889, appellee by deed conveyed said land to one Brayton V. B. Skinner, which deed was recorded in the recorder's office of Starke county, Ind., October 4, 1889; and that said Skinner on February 28, 1890, conveyed said land to one Stephen A. Valentine and wife, Anna, which deed was duly recorded April 22, 1890. That on November 17, 1892, appellee brought an action in the Starke circuit court against said Valentine and Skinner et al., including appellant Ætna Life Insurance Company, to quiet the title to said land. That at the time of filing his complaint in said action he also filed with the clerk of said court a lis pendens notice of the filing of said complaint, and of his claim of title to said real estate, which notice was duly recorded by said clerk. That on the 4th day of February, 1896, appellee dismissed said action as to appellant insurance company, and on February 4, 1896, in the Fulton circuit court, to which said cause was taken on change of venue, found “that the plaintiff's title to all of said land should be forever quieted and set at rest in him, and that the title claimed by said defendants, and each of them, to said land, is fraudulent and void, and of no effect whatever, either in law or equity”; and, by the decree of said court, plaintiff's title to all of said real estate was accordingly quieted.

(4) On November 5, 1887, in the Starke circuit court, one Elias W. Green was appointed guardian of the person and estate of appellee, who had been adjudged by said court a habitual drunkard and incapable of managing his estate. On March 14, 1888, by the judgment of said court, he was restored to his legal status, and said guardian discharged. That in the year 1889 appellee, in a proceeding before two justices of the peace of Starke county, was found to be insane, and on November 4th duly committed to the care of the Indiana Hospital for the Insane, from which hospital, by the superintendent thereof, on December 6, 1899, he was discharged “as not insane.” On March 29, 1893, on petition filed in the Starke circuit court, he was by the verdict of a jury found to be “restored to soundness of mind, and capable of managing his own estate”; and thereupon judgment was entered in accordance with the verdict.

(5) On August 4, 1891, the appellant insurance company filed its complaint in the Starke circuit court against appellee et al. to foreclose its said mortgage, and for judgment against appellee for the amount then due on said debt, and for the appointment of a receiver to take charge of said real estate. No summons was served upon appellee or notice given him of said action, nor did he demur or file any motion, answer, or other pleading in said cause, but on October 13, 1891, the court found that appellee was present by counsel, not naming any counsel, and he was “ruled to answer.” On October 20, 1891, appellee, not having answered, was called and defaulted, and judgment of foreclosure was entered against all of said defendants, with judgment over against appellee and his wife for balance due after sale of land. A receiver was appointed to take charge of the land and collect the rent. On December 19, 1891, said lands were sold under said decree by the sheriff of Starke county to appellant insurance company for $3,781.35, the amount of the judgment, interest, and costs. On December 29, 1892, the sheriff of said county executed to appellant insurance company a sheriff's deed for the land so sold.

(6) That on October 3, 1893, appellee filed his complaint in the Starke circuit court against said insurance company, averring that from a time prior to April 5, 1888, and until March 29, 1893, he was a person of unsound mind and incapable of managing his own estate, and that such fact was known to said company; that while so insane and confined in the insane asylum the said insurance company, in the Starke circuit court, foreclosed said mortgage; that at the time of said foreclosure he was not a resident of Starke county, nor for a long time before and after the date of filing said foreclosure complaint, and which said company well knew; that he had no notice of the filing of said complaint and the pendency of said action against him, and did not appear thereto either in person or by attorney, and no appearance for him was made; that a personal judgment was rendered against him in said action, which is still in full force and effect; that said mortgaged premises were, at the date of filing said complaint and the date of foreclosure, of the value of $10,000-praying that the judgment and decree of foreclosure against him, and the sheriff's sale and deed of conveyance thereunder be set aside, and be declared null and void, etc. To the foregoing complaint the said company filed its answer, setting up said notes and mortgage, averring default in payment of said debt, and foreclosure of the mortgage and sale of the real estate, and that said judgment was fully satisfied by said sale; also that on the 14th day of March, 1888, plaintiff was in the Starke circuit court found to be a person of sound mind, and that at the time the action was brought to foreclose said mortgage plaintiff was not the owner of said real estate, having on the 23d day of August, 1889, conveyed the same to Drayton V. B. Skinner; that since the purchase of said land on foreclosure said company has made permanent improvements thereon to the value of $1,000, and paid taxes and ditch assessments amounting to $600. To the answer so made the court sustained a demurrer for want of facts. Company excepted. Thereupon the court ordered said cause “docketed under the number and in the form of the original case, which is sought to be opened up by said Stryker by this proceeding.” “And thereupon the court ordered that the judgment and decree heretofore taken,rendered, and entered against him, the said Stryker, in said cause number 3019 [the foreclosure case mentioned in finding 5], be, and the same are hereby, set aside and held for naught, and the said Jacob Stryker is hereby allowed to file answer and make defense to said original complaint. And thereupon the plaintiff, the Ætna Life Insurance Company, asked the court for leave to dismiss its complaint and cause of action as against said defendant, Jacob Stryker; and said Stryker at the time objected to leave to dismiss being granted to said plaintiff without restoring or offering to restore to him his...