World Building, Loan And Investment Company v. Marlin

• Decision Date: 21 December 1898
• Docket Number: 18,662
• Parties: World Building, Loan and Investment Company v. Marlin et al
• Court: Indiana Supreme Court

52 N.E. 198

151 Ind. 630

World Building, Loan and Investment Company v. Marlin et al

No. 18,662

Supreme Court of Indiana

December 21, 1898

From the Jay Circuit Court.

Affirmed.

J. J M. LaFollette and O. H. Adair, for appellant.

D. T Taylor, for appellees.

OPINION

Monks C. J.

Appellant brought suit in the court below to foreclose a mortgage on real estate in said county. A judgment and decree of foreclosure were rendered in favor of appellant in said action, and said real estate was sold on said decree for the full amount of the judgment, interest, and costs to appellant. A few days after the sale, on application of appellant, a receiver was appointed by the court below, to take charge of and rent the real estate so sold to appellant, and collect said rents during the year appellee John M. Marlin was entitled to redeem the same. Appellees were duly notified of said application, but did not appear thereto, and were defaulted. After the year for redemption expired, and no one having redeemed from said sale, a sheriff's deed was executed conveying said real estate to appellant. When the receiver made his report, showing the rents received from said real estate during the year of redemption, appellee John M. Marlin filed a motion asking that said money be paid to him, on the ground that he was the judgment debtor and the owner of said real estate at the date of the judgment and decree, and at all times since until the sheriff's deed was executed, and was entitled to the possession and rents and profits thereof during the said year of redemption. The court ordered said money paid over to said appellee, and from the order so made, appellant prosecutes this appeal. Said notes and mortgage were executed, and all of said proceedings had, since the redemption law of 1881 took effect.

Appellant insists that the statute only gave Marlin the right to occupy said real estate during the year of redemption, and as he did not occupy the same in person, or redeem the real estate, that appellant, as purchaser at sheriff's sale, was entitled to the rent received by the receiver during said year of redemption. Section 779, Burns' R. S. 1894 (767, Horner's R. S. 1897), provides that "The owner of the real estate or interest therein, sold as aforesaid, shall be entitled to the possession of the same for one year from the date of such sale." It was provided in section 2 of redemption law of 1861, Acts Sp. Sess. 1861, [151 Ind. 632] p. 79, 2 Davis' R. S. 1876, p. 220, that "The judgment debtor shall be entitled to the possession of the premises for one year after the sale, and in case they are not redeemed at the end of the year as provided in this act, he shall be liable to the purchaser for their reasonable rents and profits." Under said section of the redemption law of 1861, this court held that neither the grantee nor tenant of the judgment debtor, nor any one else except the judgment debtor, was liable to the purchaser of the real estate at sheriff's sale, for the rents and profits during the year of redemption, if the same was not redeemed. Bryson v. McCreary, 102 Ind. 1, 3, 4, 8, 1 N.E. 55, and cases cited; Adams v. Glidden, 111 Ind. 528, 529-531, 13 N.E. 46. It was held in Gale v. Parks, 58 Ind. 117, that the right to recover from the judgment debtor the reasonable rents and profits of the real estate during the year of redemption, did not depend upon said section of the redemption law of 1861, but existed at common law, and such liability could be enforced if the statute was silent upon that subject. This holding was based upon the theory that the title of the purchaser under the sheriff's deed related back to the date of sale. It was afterwards held in Wilson v. Powers, 66 Ind. 75, citing earlier cases than Gale v. Parks, supra, but without referring to the last named case, that there was no liability except as fixed by statute, and that under the statute no one except the judgment debtor was liable to the purchaser for the reasonable rents and profits. In Bryson v. McCreary, supra, p. 56, it was expressly held that, so far as any cases held that the execution purchaser might recover independent of the statute, they should be regarded as overruled. See, also Merritt v. Gibson, 129 Ind. 155, 163, 15 L. R. A. 277, 27 N.E. 136.

In 1879 another redemption law was enacted, section 1 of which provided, in effect, that the owner of real estate sold at sheriff's sale should be entitled to possession thereof during the year allowed for redemption, but, if the same is not redeemed, he shall be liable for the reasonable rents, profits or use thereof and "If such owner is not the actual occupant of the premises sold, but the same is occupied by a tenant or other person, such tenant or other person shall be liable to the purchaser for the reasonable rent or use, and occupation of the premises, and may be treated, in all respects, as the tenant of the purchaser, who shall, in case the property is redeemed, allow, as a payment upon his judgment, the amount of the rent by him collected." Acts 1879, p. 176. It was held in Bryson v. McCreary, supra, that the redemption law of 1879 did not impair the obligation of contracts entered into while the redemption law of 1861 was in force, because the main object of the last named law was accomplished by the law of 1879 in requiring the judgment debtor, if he occupied the premises and did not redeem, to account to the purchaser for the reasonable rents, and by allowing the purchaser to collect the reasonable rents in the first instance from other occupants of the premises, and keep them if the premises were not redeemed, and, if they were redeemed, to allow a credit on the judgment for the amount collected; that this additional authority on the part of the purchaser to collect rents from others than the judgment debtor, as under the law of 1861, operated in the way of security.

The redemption law of 1881, of which section 779 (767) supra, forms a part, was held unconstitutional as to sales made after said act took effect, under decrees foreclosing mortgages executed before it took effect, whether executed while the redemption law of 1861 or the redemption law of 1879 was in force, for the reason that it impaired the obligation of all contracts made under such laws, in not providing for the recovery by the purchaser at sheriff's sale of the reasonable rents and profits during the year for redemption. Travellers Ins. Co. v Brouse, 83 Ind. 62; Bryson v. McCreary, supra, p. 8. In Davis v. Rupe, 114 Ind. 588, 17 N.E. 163; Robertson v. VanCleave, 129 Ind. 217, 228-230, 15 L. R. A. 68, 26 N.E. 899, and Merritt v. Gibson, supra, p. 161, the soundness of the...