Ætna Life Ins. Co. v. Stryker

Decision Date19 June 1906
Docket NumberNo. 5,171.,5,171.
Citation78 N.E. 245,38 Ind.App. 312
PartiesÆTNA LIFE INS. CO. et al. v. STRYKER.
CourtIndiana Appellate Court
OPINION TEXT STARTS HERE

On petition for rehearing. Overruled.

For former opinion, see 73 N. E. 953. See, also, 76 N. E. 822.

MYERS, J.

In this case (reported in 73 N. E. 953) appellants have filed a petition for a rehearing, assigning many reasons therefor, and supporting the same by a vigorous brief. In view of their apparent earnestness in this matter, we have taken the time to again thoroughly consider the record and arguments of counsel. From this investigation we are led to believe that appellants' trouble comes from a mistaken idea of the theory of this action. They admit they “were misled to directing a defense of a complaint to quiet title upon the grounds of undue fraudulent practices upon appellee during mental incapacity, whereby he was prevented from a hearing in court on the foreclosure suit.” The complaint does contain a number of averments relative to appellee's mental condition prior to and about the time the foreclosure proceedings were had. What may have been the pleader's object in pleading these facts is not clear, unless it was for the purpose of showing an excuse for not sooner offering to redeem, but these facts are not the leading and controlling facts in the pleading, and upon an examination of the whole record, evidence, and briefs of counsel (Carmel, etc. Imp. Co. v. Small, 150 Ind. 527, 435, 47 N. E. 11, 50 N. E. 476) it is apparent that the cause was tried upon the theory of an equitable proceeding to redeem the land from the foreclosure sale, as well as to quiet the title thereto.

Appellants' petition is largely predicated upon the fact that we did not, in our original opinion, take up each pleading separately and pass on it. There is no reason for extending the opinion for such purpose, where the special findings exhibit the same facts as those found in the pleadings, and error is assigned on an exception to the conclusions of law. Ray v. Baker, 165 Ind. 74, 74 N. E. 619;Ross v. Van Natta, 164 Ind. 557, 74 N. E. 10. A reference to our former opinion will show that the particular defects in the complaint most earnestly insisted upon by appellants, namely, failure to aver disaffirmance by appellee of his deed to Skinner, and facts showing that Alvey was not a good faith purchaser, are therein referred to and decided, and upon a re-examination of these questions we find no reason to change our former conclusion.

Appellants also insist that the complaint is not sufficient to withstand a demurrer for want of facts, as a complaint for equitable redemption, because there is no averment of a tender or offer to pay the amount of the Ætna judgment, together with interest thereon. While the complaint contains no direct averment of this fact, yet the facts averred show an excuse for not offering to pay the sum then due by averring facts showing that appellant, Ætna, is holding certain credits to which appellee is entitled, in reduction of the amount due to redeem, which can only be determined upon an accounting which is demanded, and that he “be allowed to redeem from the sale, as aforesaid, 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.” In our opinion the facts pleaded are sufficient to bring the case within the equitable doctrine, that where a lienholder has credits in his hands which should be applied to the discharge of the lien, it is not necessary to aver in a complaint for an equitable redemption, a tender of the amount fixed by the lien, or an offer to pay that amount, but an offer to pay whatever sum shall be found due upon taking the account. Kemp v. Mitchell, 36 Ind. 249, 255, and cases cited; Horn v. Indianapolis National Bank, 125 Ind. 381, 25 N. E. 558, 9 L. R. A. 676, 21 Am. St. Rep. 231;Coombs v. Carr, 55 Ind. 303, 309;Nesbit v. Hanway, 87 Ind. 400. Appellee was the mortgagor and was claiming to be the owner of the land, and that his deed to Skinner had been procured by fraud and without consideration. Appellant Ætna had notice of these claims upon the part of appellee while it was still a lien holder. These claims it could have put at rest by a suit to foreclose appellee's equity of redemption. Curtis v. Gooding, 99 Ind. 45, 48. This it did not do, and as appellee was not a party to the foreclosure proceedings, such proceedings as to him were a nullity. Watts v. Julian, 122 Ind. 124, 23 N. E. 698;Petry v. Ambrosher, 100 Ind. 510; Curtis v. Gooding, supra; Scates v. King, 110 Ill. 456;Gage v. Brewster, 31 N. Y. 218.

But appellants say that because appellee conveyed the land to Skinner prior to the beginning of the proceeding to foreclose its mortgage, he was therefore not a necessary party. As a general proposition, this statement is correct where the mortgagee is simply insisting upon the benefit of his lien, but where a personal judgment is sought against the mortgagor or grantor, as was done in that case, “then he must be made a party to the action in order to obtain a judgment against him, bar his equity of redemption or foreclose his rights,” Petry v. Ambrosher, 100 Ind. 512, and in any event he was a proper party, and the better practice required that he be made a party. Curtis v. Gooding, 99 Ind. 46. The exception to the general rule in this regard is well illustrated in the case at bar, as future developments proved the truth of appellee's contention, and therefore the controversy arising upon such a state of facts is properly submitted to a court of equity, that the interest of the parties may be considered and determined purely from merit, freed from formality, to the end that neither shall have an unconscionable advantage of the other.

We find no reason for changing our former opinion as to the effect of the lis pendens notice. The doctrine of such notice originated in equity, and is recognized as an important factor in determining property rights. Being wholly equitable in character, its application must be made along the line of equitable principles, and the maxim, equity regards substance and intent rather than form. Therefore it cannot be said that the advantage of this notice, in the furtherance of exact justice, shall be rendered ineffectual by technical construction. In speaking of this notice, appellants confidently assert that there is great difference between ownership absolute, as stated in the lis pendens, and notice of a right to redeem. This is true, for a right to redeem does not necessarily imply ownership or title, while ownership or title does carry with it, as a matter of law, the right to redeem. It must be admitted that appellant Alvey was a purchaser pendente lite, and as such had notice of the then pending action and of every fact pertinent to that issue. The character of his deed would also be a material fact in this proceeding. By reference to the special findings it will be observed that, in 1895, appellant Ætna conveyed the land by deed to his co-appellant Alvey. This finding is in accordance with Alvey's answer and the evidence. Therefore, the conveyance being by deed, and the kind of deed not found, we look to our statute, where we find two forms designated, quitclaim and warranty, and nothing to the contrary appearing, it may be inferred that one or the other of these forms was used. If the first, it served to pass only the present interest of the grantor. Sections 3343, 3347, Burns' Ann. St. 1901; Stephenson v. Boody, 139 Ind. 60, 38 N. E. 331 If the latter, it...

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