Travellers Ins. Co. v. Patten

• Decision Date: 15 November 1884
• Docket Number: 10,198
• Citation: 98 Ind. 209
• Parties: Travellers Insurance Company v. Patten et al
• Court: Indiana Supreme Court

98 Ind. 209

Travellers Insurance Company v. Patten et al

No. 10,198

Supreme Court of Indiana

November 15, 1884

From the Sullivan Circuit Court.

F. H Levering, S. Coulson, U. Coulson, D. V. Burns and C. S Denny, for appellant.

OPINION

Best C.

The appellant brought this action. Its complaint consisted of two paragraphs. The first sought the foreclosure of a mortgage against the appellees as subsequent purchasers. The second alleged that the appellant acquired title to the premises in the complaint described through the foreclosure of said mortgage, and sought to quiet such title and to recover possession.

The appellee James B. Patten filed a cross complaint of two paragraphs, in each of which he claimed title to said land through prior liens, and he sought to quiet such title against the appellant's mortgage.

Issues were formed, a trial had, the facts specially found, conclusions of law stated, a new trial denied appellant, and judgment rendered for the appellees, awarding James B. Patten the several sums of money expended by him for improvements, for taxes and in purchasing the land at sheriff's sale, and in default of the payment of said sums within a stated time, it was ordered that the title of said James B. Patten be quieted as against the appellant's mortgage. Exceptions were reserved to the conclusions of law, and to the ruling upon the motion for a new trial. These are assigned as error.

The facts found and the conclusions of law stated are in these words:

"First. It was agreed by the parties at the trial, that William T Crawford, in the year 1870, had a good fee simple title to the following described real estate, situate in Sullivan county, in the State of Indiana, to wit: The southeast quarter of section sixteen (16), township nine (9) north, and range eight (8) west, containing 160 acres, and continued to have and hold the same until the 14th of November, 1874.

"Second. The court finds that said Crawford conveyed the same to N. G. Buff, on the 14th day of November, 1874, and the deed was recorded in the recorder's office of Sullivan county, Indiana, on the day of -----, 1874.

"Third. On the 11th day of May, 1875, said Buff conveyed the same to Fidelia Stover, and said deed was recorded in said office on the day of -----, 187-.

"Fourth. On the 28th day of December, 1875, said Stover and her husband conveyed the same to William T. Crawford, and said deed was recorded on the day of -----, 187-.

"Fifth. On the 22d day of January, 1876, said Crawford mortgaged the same and other lands to the plaintiff, to secure the payment of $ 5,000. Said mortgage was recorded in said office on the 25th day of January, 1876.

"Sixth. On the 17th day of July, 1879, the circuit court of the United States for the District of Indiana, entered a decree of foreclosure of said mortgage.

"Seventh. In pursuance of said decree and by virtue thereof, the said real estate was regularly sold on the 12th day of September, 1879, and the plaintiff became the purchaser, and having complied with the terms of the sale, obtained a certificate of purchase; that said real estate was not redeemed within one year, and on the 9th day of November, 1880, said plaintiff received a deed therefor.

"Eighth. On the 21st day of January, 1874, in the Sullivan Circuit Court, Peter Hill recovered a judgment against William M. Weir and Martin L. Buff, for $ 614 and $ 10.60 costs.

"On the 23d day of February, 1874, execution was issued thereon, and went into the hands of the sheriff of Sullivan county, on the same day, at 9 o'clock a. m. While the execution was in the hands of the sheriff, to wit, on the 21st day of March, 1874, one J. M. Weir signed the following entry, which was written by the clerk in the margin of the order-book, opposite the judgment of Peter Hill against William M. Weir and Martin L. Buff, to wit:

"'We acknowledge ourselves replevin bail for the payment of this judgment, interest and costs, within the term prescribed by law for the stay of execution. March 21st, 1874.

"'J. M. Weir,

"'....'

"There was no approval endorsed by the clerk, nor did he notify the sheriff that execution was stayed.

"On the 9th day of May, 1874, the sheriff returned the execution with this endorsement thereon, to wit:

"'May 4th, 1874. We acknowledge ourselves replevin bail for the payment of this judgment, interest and costs, within the time prescribed by law for the stay of execution.

"'B. R. Lucas,

"'N. G. Buff.

"'May 9th, 1874. This execution returned stayed.

"'John F. Curry, Sheriff.'

"Which recognizance was copied by the clerk in the execution docket, but was not indexed in the name of N. G. Buff.

"On the 24th day of April, 1877, said judgment was assigned by the plaintiff therein to the Vincennes National Bank, and execution for its benefit issued thereon, on the 1st day of May, 1877, against the original judgment defendants and said Lucas and N. G. Buff as replevin bail, and on the 31st day of August, 1877, N. G. Buff, per G. W. Buff, paid to the sheriff $ 200 thereon. Between the time of issuing the first execution on said judgment and the 24th day of April, 1879, several executions had issued, and a portion of the judgment satisfied, but not in full, but the property of the original judgment defendants was exhausted. On the 24th day of April, 1879, execution issued thereon for the balance then due, to wit, $ 225.67 and $ 100 costs against the original judgment defendants, and the said Lucas and Buff as replevin bail, and was by the sheriff levied upon said real estate as the property of N. G. Buff, the original judgment debtors having no property out of which the same could be levied; and after duly advertising the same sold the said real estate at the door of the courthouse of Sullivan county, on the 12th day of July, 1879, by public outcry and vendue, and the defendant James B. Patten became the purchaser at the price of $ 100, that being the highest bid, and paid the sheriff the same, and received from him a certificate of purchase; and said sum was a grossly inadequate price for said land; and the said real estate was not redeemed within the year, and on the 13th day of July, 1880, the sheriff of said county conveyed said real estate to said Patten, and it was duly recorded on the 29th day of July, 1880.

"Ninth. On the 7th day of March, 1879, Walter S. Maple, assignee of the estate of William T. Crawford, bankrupt, sold and conveyed said real estate to James B. Patten, and on the face of said deed it was recited that it was subject to plaintiff's mortgage. The assignee also sold to said Patten the growing crop of wheat then on the land.

"Tenth. On the 23d day of April, 1879, one George W. Buff, who was then and is now the law partner of the defendant James B. Patten, purchased at private sale at the auditor's office, in said county, the said real estate for $ 98.77, being the amount of taxes due on said land returned as delinquent in the name of William T. Crawford for the non-payment of taxes, costs and charges for the years 1875, '76, '77 and '78. The said purchase was made by said Buff for said Patten with partnership funds, and at the instance of said Patten, and the certificate of purchase issuing to the said Buff was by him assigned to the said Patten, and on the 25th day of May, 1881, the auditor conveyed the said land to the said Patten.

"W T. Crawford owned no property out of...