Watts v. Julian

• Decision Date: 08 February 1890
• Citation: 23 N.E. 698,122 Ind. 124
• Parties: Watts et al. v. Julian.
• Court: Indiana Supreme Court

122 Ind. 124

23 N.E. 698

Watts et al.

v.Julian.

Supreme Court of Indiana.

Feb. 8, 1890.

Appeal from circuit court, Jay county; J. R. Bobo, Judge.

Headington & La Follette, and Thompson, Marsh & Thompson, for appellants. Julian & Julian, for appellee.

Olds, J.

This action was commenced by the appellee against the appellants. The complaint is in two paragraphs. The first paragraph seeks to establish the right to redeem certain real estate therein described, and the second asks to have a sheriff's sale of the real estate declared illegal and set aside. The following named persons are made defendants: Isaiah P. Watts, Ann E. Watts, Calvin W. Diggs, Joseph R. Jackson, guardian of James Moorman, a person of unsound mind, and James Moorman. The first paragraph of the complaint alleges that in January, 1874, Harpers bought of William P. Macy the N. E. 1/4 of section 6, township 24, range 13 E., in Jay county, Ind., and executed to said Macy a mortgage on this tract of land to secure the payment of three several promissory notes; that said notes, except the last one, were paid by said Harpers; that the note which matured last, together with the mortgage, was assigned to appellant Calvin W. Diggs; that Harpers, on the 23d day of November, 1874, conveyed the land to appellant Isaiah P. Watts, subject to the mortgage, who, in turn, on the 1st of December, 1874, sold and conveyed by warranty deed the south half of this tract of land to Julian, Bradbury & Julian, and their deed was duly recorded; that Watts retained the other half of said land, and never conveyed it to any one; that afterwards, to-wit, March 17, 1876, Bradbury sold his interest in the south half of this quarter to Julian & Julian, whereby appellee became the owner of the undivided one-half interest in said south half of this quarter section; that January 15, 1877, Calvin W. Diggs, assignee of the original mortgage on the whole quarter, brought suit to foreclose the mortgage, to which suit he made the Harpers, Watts and wife, Jacob B. and Martha Julian, Arthur L. Wright, and George H. Bonebrake defendants, but did not make appellee a defendant, and that he had no notice of the same; that such proceedings were had that Diggs foreclosed said mortgage on said quarter section, with a direction in the decree that the north half should be first sold to pay said judgment; that on the 17th of April, 1877, the sheriff sold the whole quarter to said Diggs for the sum of $1,150.72, and afterwards received a sheriff's deed for the same, and on the 24th day of May, 1881, conveyed the whole quarter to James Moorman, who yet holds and owns the same. It is then averred that while Diggs held the land he received for rent of the same $500, and sold timber from the same, for which he realized $500; that the north half of said land was worth sufficient to pay the whole amount of this mortgage debt; that the appellant Jackson is the guardian of James Moorman, a person of unsound mind; that the suit and proceedings by Diggs to foreclose his mortgage were regular and binding on all the parties thereto; and then it prays an accounting as against Diggs and Moorman, and that the amount required to redeem may be ascertained by the court, and a decree ordering the sale of the north half to pay and satisfy such sum necessary to redeem. The second paragraph of the complaint contains all the material averments of the first, except the one as to the legality and validity of the sheriff's sale; and in addition it avers that when the sheriff proceeded to sell the quarter section on the Diggs decree, he did not first sell the north half, but that he only offered the north half, and, receiving no bid therefor, then offered and sold the whole quarter together, and that, therefore, the sale was illegal and void. The first paragraph then seeks, as the appellee's remedy, the redemption of the whole quarter, while the second seeks to set aside the sales of this land by the sheriff to Diggs, and by Diggs to Moorman. The second paragraph of the separate answer of Jackson, guardian, is to so much of the complaint as sets up the interest and title appellee derived from and through the deed of Bradbury to appellee and Jacob B. Julian, and avers that the deed of Bradbury to them was not, at the time that either Diggs or Moorman bought the land, of record; that they, nor either of them, had any notice or knowledge that such deed had been made until long after each had bought the land and paid the purchase money in full, and that neither Jacob B. Julian nor appellee has ever been in the possession of said real estate. The amended fourth paragraph of answer was pleaded by way of estoppel, and in this answer the same matter is set up as in the second paragraph of Jackson's answer; and in addition it is averred that, before Diggs brought his suit to foreclose his mortgage, appellee and one Jacob B. Julian were in partnership; that Jacob B. went into bankruptcy; that appellee prepared and filed the schedule and affidavit of the said Jacob B., in which verified schedule so prepared by appellee for Jacob B. it was averred that he, the said Jacob B., owned the whole of the south half of the quarter in controversy, and that this affidavit was made with the full knowledge of appellee, and this real estate was conveyed to Arthur L. Wright, assignee; that appellant Diggs had full notice and knowledge of all these facts at the time he foreclosed, and when he bought in the quarter at the sheriff's sale; that appellee knew when said mortgage was being foreclosed, and all the steps that were taken before it was foreclosed, and stood by and allowed the mortgage to be foreclosed, and the property bid in, and said nothing, and made no claim of title; that after the purchase by appellant Diggs of the real estate, and before James Moorman bought of him, appellee filed his petition in the United States district court to be adjudged a bankrupt, and as part of such proceedings he filed a schedule of all his property, both real and personal, which was verified by his affidavit, and in which schedule he swore and made oath that he owned no real estate of any kind or description whatever; that at the time Moorman bought he had notice of the fact that this schedule and affidavit had been filed, and of their contents, and believed the statements therein contained to be true; and, relying upon them, bought the land appellee now seeks to recover, and paid the purchase price in full.

Demurrers were filed to the complaint, and overruled, but no objection is presented to the complaint. Appellants Watts & Watts filed their joint answer in two paragraphs. Appellant Diggs filed an answer in two paragraphs. Appellant Jackson, as guardian of Moorman, filed an answer in four paragraphs, and afterwards filed an amended fourth paragraph. Appellee filed demurrers to the second paragraphs of the answers of Watts & Watts and of Diggs; also filed a demurrer to the second, third, and amended fourth paragraphs of the separate answer of Jackson, as guardian of Moorman. The demurrer to the second paragraph of answer of Watts & Watts was sustained, and...