Turpie v. Lowe

• Court: Indiana Supreme Court
• Writing for the Court: Dowling, J.
• Citation: Turpie v. Lowe, 158 Ind. 314, 62 N.E. 484 (Ind. 1902)
• Decision Date: 14 January 1902
• Docket Number: 19,583
• Parties: Turpie et al. v. Lowe

62 N.E. 484

158 Ind. 314

Turpie et al. v. Lowe

No. 19,583

Supreme Court of Indiana

January 14, 1902

Rehearing Denied April 8, 1902.

From Cass Circuit Court; C. W. Watkins, Special Judge.

Proceeding by William Turpie and others against Hugh Lowe to redeem from an execution sale of real estate. From a judgment in favor of defendant, plaintiffs appeal.

Affirmed.

E. B Sellers, M. Winfield and D. C. Justice, for appellants.

Guthrie & Bushnell, for appellee.

Dowling J. Baker, J., Concurs in result only.

OPINION

Dowling, J.

The fifth paragraph of the complaint, docketed as a separate action, states in substance that William Turpie and James H. Turpie, were the owners of a tract of land situated in White county, Indiana, containing 440 acres, upon which one Braxton held a mortgage; that a judgment of foreclosure had been rendered in a suit upon the mortgage; that the mortgaged lands had been duly sold by the sheriff of White county to Braxton under the decree, and that a certificate of purchase had been executed to Braxton by the sheriff; that the time for the redemption of said lands from the sale expired December 15, 1885; that before the date last named Braxton agreed to extend the time allowed by law for the redemption of said lands, in consideration of the payment of the amount of the bid with eight per cent. interest thereon, and to assign the certificate of purchase to the said Turpie and Turpie, or to such other person as they might designate; that on December 15, 1885, the said Turpie and Turpie informed the appellee, Lowe, of their agreement with Braxton, and in consideration of the payment of $ 2,700, the amount then due upon the certificate of purchase, and for delinquent taxes, and the further sum of $ 100, Lowe agreed to advance and pay for the said Turpies the amount due to Braxton, and the said taxes, the Turpies promised that they would cause Braxton to assign the said certificate of purchase to Lowe, who was to hold the same as security only, for the repayment of the said sum of $ 2,800, with interest thereon at the rate of eight per centum; that Lowe advanced the $ 2,700 to Braxton, and that, at the request of the Turpies, Braxton assigned the certificate of purchase to Lowe, who thereafter held the same as security for the repayment of $ 2,700 advanced by him, and the $ 100 bonus agreed to be paid him; that immediately after obtaining the said certificate, Lowe, without the consent of the Turpies, surrendered the same to the sheriff of White county, and procured a deed for said lands, which he caused to be placed on record; that thereafter Lowe denied that the Turpies had any rights to, or interest in, said lands; that he thereupon took, and ever since has held, possession of said lands, adversely to the Turpies, claiming to be the owner thereof; that he has held such possession for fourteen years, receiving the rents and profits of said lands which were worth $ 1,000; that he has refused to account to the Turpies for such rents and profits, and that they exceed any sum advanced by him; and that the Turpies stand ready to pay any sum found due from them to Lowe. The complaint concludes with a prayer that the Turpies be allowed to redeem the land, and that they recover judgment for the excess of the rents and profits received by Lowe over the amount due to him.

Pending the action, one of the plaintiffs, James H. Turpie, died, and his heirs at law were substituted as parties plaintiff.

The defendant answered in denial, and also set up the defense of the statute of limitations of six and ten years. Demurrers to the special answers were overruled, and the plaintiffs filed their reply, the first paragraph of which was a general denial. The defendant below filed a cross-complaint, alleging his ownership of the land, and that the plaintiffs wrongfully asserted an interest in or title to the same. He asked that his title be quieted. Answer in denial of cross-complaint. A special finding of facts was made, with conclusions of law thereon, and, over a motion for a new trial, judgment was rendered for the defendant and cross-complainant, Lowe. The plaintiffs below appeal, and assign for error the overruling of the demurrers to the answers setting up the statute of limitations and the overruling of the motion for a new trial.

The decision of the court upon the demurrers to the answers alleging that the cause of action did not accrue within six years or ten years before the commencement of the suit was plainly erroneous. The action was one of equity jurisdiction, and its object was the redemption of the lands held by the defendant under a sheriff's deed absolute upon its face, but alleged to be in fact a mortgage or security only for the repayment of a debt. None of the specifications of § 293 Burns 1901 applies. Nor was this an action for the recovery of real property sold on execution, brought by the execution debtor, to which specification third of § 294 Burns 1901 relates. The case belonged to that class of actions not barred by any other statute, and was governed by the limitation of fifteen years. § 295 Burns 1901; Barr v. Vanalstine, 120 Ind. 590, 22 N.E. 965; Ringle v. First Nat. Bank, 107 Ind. 425, 429, 8 N.E. 236; Nutter v. Hawkins, 93 Ind. 260, 264.

But, while the ruling on these demurrers was erroneous, it does not follow that the judgment must be reversed. The plaintiffs below did not stand upon this decision, but filed replies to the answers setting up the bar of the statute and went to trial. The special finding and the proof show that they failed to sustain the material allegations of their complaint, and that the judgment was properly rendered in favor of the defendant. It was averred in the complaint that Lowe took an assignment of the certificate with the agreement that he would hold the same as security only for the amount paid by him to Braxton, and for the delinquent taxes, together with the bonus of $ 100, with eight per cent. upon the whole amount, and that he would not procure a deed upon the certificate. The court found that the agreement between the Turpies and Lowe was that the former should redeem the lands within one year from December 7, 1885; that the Turpies never did redeem; and that no claim of such right was made by them for more than five years from the time of the assignment of the certificate of purchase. The assignment of certificates of purchase of real estate at sheriff's sales is expressly authorized by statute. § 778 Burns 1901; Splahn v. Gillespie, 48 Ind. 397; Maddux v. Watkins, 88 Ind. 74; Conger v. Babcock, 87 Ind. 497.

It is well settled that the statutory period within which lands sold on execution may be redeemed may be extended by contract without otherwise affecting or impairing the rights of the holder of the certificate of purchase. The leading case upon this subject is Southard v. Pope, 48 Ky. 261, 9 B. Mon. 261, in which it is said: "The extension of the time of redemption is merely a waiver of the forfeiture of the right until that period arrives, and cannot, without an evident perversion of the true design of the parties, have the effect of converting the purchase into a mere lien to secure the repayment of the purchase money. As an agreement by the purchaser to prolong the time, might operate to prevent a redemption within the legal period, a refusal by the purchaser to accept the money and permit the redemption to be made within the time agreed, would be a fraud upon the defendant in the execution, and authorize an application by him to a court of equity for relief. But where the purchaser acts in good faith in extending the time, and the defendant in the execution fails to redeem within that time, his equity of redemption is lost. The extension of the time does not justify the inference that the purchaser intends to surrender the benefit of his purchase. Such an inference would be forced and unwarranted. Such is not the understanding or design of the parties, or the legal effect of the act. The purchaser derives no advantage from the indulgence; it is intended exclusively for the benefit of the other party. It is not inconsistent with the right claimed, to hold the land under the purchase in the event of a failure to redeem before the expiration of the time. The omission to redeem, according to the agreement, renders the purchase absolute and irredeemable. This is evidently the expectation and understanding of both parties in such a case, and the indulgence being obviously for the benefit of the debtor should not be prohibited, which in effect it would be, by giving it the legal operation contended for. Although, therefore, an extension of the time was given, yet as Southard did not pay the purchase money and interest within the time, it gave him no right to redeem after the time had expired." See, also, Ferguson v. Smith, 70 Ky. 76, 7 Bush 76; Ross v. Sutherland, 81 Ill. 275.

The general rule is thus stated in Rorer on Judicial Sales (2nd ed.), § 1159: "But a mere agreement to extend the time of redemption from execution sale is only a waiver for the time being of the forfeiture of the right to redeem during the time so specified, and will not have the effect of converting the purchase into a lien for repayment of the purchase money."

While no decision upon the precise question presented here has been made by this court, it has repeatedly been held that delay of the purchaser in procuring a deed does not affect his rights under his certificate. Jones v. Kokomo Building Assn., 77 Ind. 340; Maddux v Watkins, 88 Ind. 74, 79. So, too, it has been declared that a valid assignment of the certificate may be made by the purchaser as well after as before the expiration of the year allowed for redemption. Conger v. Babcock, 87 Ind. 497; ...