Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση
[merged small][merged small][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

A contractor constructing a street improvement may choose between the remedies given by Acts 1901, p. 537, c. 231, § 6, providing that delinquent assessments for benefits shall be collected in the same manner that delinquent taxes are collected, or by a foreclosure of the lien, though the council in its order of assessment provided that it should be collected as taxes are collected.

4. SAME-RESOLUTION FOR STREET IMPROVEMENT-COMPLIANCE.

A resolution by the council of a city, declaring generally the existence of the necessity for the improvement of a street by grading and graveling the roadway and curbing the gutters in accordance with specifications, is satisfied if, when the improvement is completed, every part of the street is in the condition prescribed in the specificatons.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 888901.]

5. SAME.

A resolution for a street improvement declared the existence of the necessity for the improvement of a street by grading and curbing the roadway and curbing the gutters in accordance with specifications. The improvement was accomplished by a contractor under the direction of the city engineer and in accordance with the contract, by improving the east half of the street, as before the commencement of the proceedings the west half of the street had been improved in accordance with the specifications. Held, that the improvement was a substantial compliance with the resolution.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 888901.]

6. SAME ASSESSMENT FOR BENEFITS-STATUTES.

Acts 1901, p. 536, c. 231, § 3, provides that the cost of a street improvement shall be paid for by assessments on the property benefited in proportion to the benefits. Pursuant to a resolution of the council of a city providing for the improvement of a street, the east half of the street was improved, as the west half had been improved, in accordance with the specifications at the cost of the property owners on the west side. Held, that an assessment against the property on the east side of the street for the cost of the improvement was valid. 7. CONSTITUTIONAL LAW-EQUAL PROTECTION OF THE LAW ENFORCEMENT OF ASSESSMENTS-ALLOWANCE OF ATTORNEY'S FEE. The provision of the statute providing for an allowance of a reasonable attorney's fee in a suit for the foreclosure of a lien against real estate for an assessment for street improvement is valid.

[ocr errors]
[blocks in formation]

the city. A resolution of a city council providing for a street improvement provided that bids for the work would be received up to 6 o'clock October 30th, and ordered the clerk to give notice of the letting of the contract for three weeks before October 6th. The clerk gave notice by publication, the first of which was on October 1st, and the last on October 22d. The notice stated that bids would be received up to 5 o'clock October 30th. Held, that the notice was sufficient.

Appeal from Circuit Court, Cass County; David S. Fickle, Judge.

Action by William Hupp against Elbert W. Shirk, trustee. From a judgment for plaintiff, defendant appeals. Affirmed.

G. E. Ross, for appellant. Nelson, Myers & Yarlott, for appellee.

HADLEY, J. Appellee, as the contractor, instituted this suit to foreclose a lien against the real estate of appellant for the improvement of a street in the city of Logansport, under the act of 1901 (Acts 1901, p. 534, c. 231). A demurrer to the complaint for insufficiency of facts was overruled, and the issue closed by a general denial. There was a trial by the court, special finding of facts, and conclusions of law in favor of appellee. Appellant's motions for a new trial and to modify the judgment were overruled. Error is assigned on all adverse rulings.

Appellant's first objection to the complaint is that it is so drawn as to admit of two theories; and that it is uncertain whether the plaintiff bases his action on the bonds issued by the city in anticipation of the assessments for the improvement, or on the lien created by the assessment of benefits against the defendant's property. It is entirely immaterial whether one theory or the other is intended by the plaintiff. He may sue upon the assessment and rely upon his statutory lien, or he may sue upon his bonds, which are nothing more nor less than evidence of the indebtedness, and pursue the same statutory lien. Acts 1901, p. 537, c. 231, § 6; Scott v. Hayes, 162 Ind. 548, 70 N. E. 879. Besides, if appellant was in doubt about how to answer, or how to present his defense, that doubt might have been removed by a timely motion to make more specific. A further objection to the complaint is that it shows upon its face that the common council in its order of assessment provided that it should be collected as taxes are collected, and, having so provided, collection by foreclosure is contrary to the terms of the order, and therefore forbidden. If the council did so provide in the order, it was surplusage and without legal significance. The duty of the council ended with the making of the assessment. That body had nothing to do with the collection, or with the providing of a mode of collection. The Legislature (section 6) specifically points out how collection of such assessments may be accomplished as follows: "Such delinquent installments shall be collected in the same manner that delinquent taxes are col. lected, or may be collected by foreclosure of

the lien thereof, in any court of competent jurisdiction, as a mortgage is foreclosed." The owner of the lien was entitled to choose between these remedies. We perceive no infirmity in the complaint and the demurrer thereto was properly overruled.

2. The initial resolution adopted by the common council declared generally that there existed a necessity for the improvement of North Fifth street between Linden and Miami streets, by grading and graveling the roadway 46 feet wide and curbing the gutters 42 feet wide with bowlders, the street to be brought to a proper subgrade and graveled to a depth of 18 inches in the center and sloped to 6 inches at the gutters, all to be done in accordance with specifications and drawings on file in the office of the city engineer, in conformity to the established city grade, and under the supervision of the city engineer. It is shown by the findings that said improvement was accomplished by appellee under the direction of the city engineer and in accordance with the order and contract, and that in the performance all the work actually done by appellee, a contractor, was on the east half of North Fifth street between Linden avenue and Miami street; and the west half of said street had been, before the commencement of these proceedings, improved in accordance with said specifications, and paid for in full by the property owners on the west side. And the total assessment under these proceedings was laid against the property on the east side. Under these findings appellant insists that the court's conclusions of law in favor of appellee were erroneous (1) because the work done and sued for was not the work provided for by the ordinance or declaratory resolution, and (2) because the common council had no power to assess the total cost of the improvement, as benefits, to abutters on the east side.

By Acts 1901, p. 536, c. 231, § 4, when an assessment is once made by the common council its validity cannot be questioned, except by a direct appeal to the circuit court. This is quite a different action, but, since counsel have earnestly argued the questions last above stated, we have deemed it proper to consider them.

First. The resolution in general terms called for the improvement of North Fifth street between Linden and Miami streets. The fair implication of the language is that the full width and length of the street should be articially constructed in conformity to the "specifications and drawings for the doing of said improvement on file in the engineer's office." It is not specified that every part of the street should be excavated and then refilled with gravel 18 inches in the center and sloped to 6 inches at the gutter. The resolution was satisfied, if, when the improvement was completed, every part of the street to its full width and length was found to be in a condition strictly in accordance with the specifications referred to, and that form

ed the basis of the contract. The law does not indulge in such folly as would demand a destruction of a part of the street that might be found in the condition required, without more substantial reason than that of imposing upon the contract or the burden of restoring it. The bids were received and contract let for so much per cubic yard for gravel, and so much per lineal foot for bowldering the gutter, and if, under the guidance of the city engineer, as provided by the contract, it was found that the west half of the street was already satisfactorily improved, and that its condition in all ways met the requirements of the improvement order, we see no reason why an improvement of the east half, and the bringing of it to the same. condition as the west half, did not accomplish an improvement of the whole street, and a substantial compliance with the resolution.

Second. In considering the fact that the cost of the improvement was all assessed as benefits against property on the east side of the street, it should be borne in mind that this proceeding is under the act of 1901 and the assessment of the cost is not made by the old front-foot rule, but upon the principle of actual special benefits received. The act of 1901 applies only to cities "not operating under a special charter." Logansport is a city of this class. The act provides (section 3) that after the improvement has been completed, and the costs thereof ascertained, the city engineer shall report these facts to the common council, which shall refer the report to the city commissioners, who "shall meet at the time and place fixed by the common council and shall proceed to view the lots, lands and parcels of ground affected by said improvement * and assess the cost of said improvement upon the property benefited thereby in proportion to the benefits derived therefrom, but not in excess of such benefits." (Italics ours.) If the total special benefits thus ascertained are less than the cost of the improvement, the remainder shall be paid from the general funds of the city. Under the act of 1901 the taxing district is limited only by accruing special benefits. All abutting lots and lands are not necessarily assessable; neither are all assessments necessarily confined to abutting property. The theory of this statute is to seek out the lots and lands that have received a particular and special benefit from the improvement, not common to nor shared by the other inhabitants of the city, and against such property lodge assessments of cost to the extent of such peculiar benefits, when necessary. And if it turns out, for any reason, that the special benefits resulting from a street improvement, all fall on one side of the street, that side alone is assessable. The court did not, therefore, for this reason, err in holding the assessment valid.

The statute provides for, and the court allowed plaintiff's attorney, a reasonable fee in the foreclosure decree. This appellant

claims was a violation of the Constitution. | 2. MORTGAGES
This court has decided to the contrary and
we still adhere to the opinion heretofore
announced. Dowell v. Talbot Paving Co.,
138 Ind. 675, 688, 38 N. E. 389; Railroad Com-
pany v. Fish, 158 Ind. 525, 529, 63 N. E. 454;
Judy v. Thompson, 156 Ind. 533, 535, 60 N. E.
270.

[blocks in formation]

REDEMPTION ACTION FO REDEMPTION COMPLAINT ALLEGATION OF TENDER OF PAYMENT NECESSITY. A complaint for equitable redemption from a mortgage foreclosure sale which alleges that the mortgagee is holding certain credits to which the mortgagor is entitled in reduction of the amount due to redeem which can only be determined on an accounting which is demanded, and that he be allowed to redeem from the sale by paying such sum as the court may find to be duc, is sufficient as against the objection

of the foreclosure judgment.

[Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 1837, 1838.]

3. SAME-TENDER OF AMOUNT DUE-NECES

SITY.

Where a lien holder 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 what sum shall be found due on taking the account is sufficient.

[Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 1837, 1838.] 4. SAME PARTIES FAILURE TO MAKE MORTGAGOR A PARTY — EFFECT.

FORECLOSURE

Section 1 of the statute provides that the common council shall give notice of the letting of such contracts by 3-weeks' publica-that it fails to aver a tender to pay the amount tion in a newspaper of general circulation published within the city. Appellant claims that the notice given in this case was insufficient, and the letting of the contract illegal and void. In the declaratory resolution the common council fixed, as matter of record, that it would receive bids for the work up to 6 o'clock, October 30, 1901. An order to the clerk directed him to cause notice to be published for the letting of the contract for three weeks before (as appears of record) the 6th day of October, 1901. The record further discloses that the city clerk proceeded to and did give notice pursuant to the order; that bids would be received up to 5 o'clock, October 30, 1901, the first of which publication was on the 1st, and the last on the 22d, day of October, 1901. Appellant argues that the notice given by the city clerk under the direction of the council is no notice at all by the council, within the meaning of the statute, because not in accordance with the direction of the council. What instructions the clerk received from the council concerning notice is of little consequence. The essential things for the council to do with respect to the time for the letting of the contract were, first, to fix the time, upon their record, for the letting of the contract; and, second, to cause notice of the time and place of said letting to be given by publication for three weeks in a newspaper of general circulation in the city. As exhibited by the record, the time was fixed

and the notice actually given as required by the statute, and the public thus afforded a fair and equal chance to bid, and in this respect it must he held to be a substantial compliance with the statute.

There are a number of other unimportant questions, chiefly relating to the sufficiency of the evidence to sustain particular findings, and to the admission and exclusion of evidence, each of which we have examined, and find no reversible error. Judgment affirmed.

(38 Ind. A. 312)

ETNA LIFE INS. CO. et al. v. STRYKER.

(No. 5,171.)

A mortgagor conveyed the mortgaged premises to a third person and the mortgagee sued to foreclose without making the mortgagor a party, though it knew that the mortgagor claimed to be the owner and that his deed to the third person had been procured by fraud, and without consideration. Held, that the foreclosure proceedings were, as to the mortgagor, a nutv.

[Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 1280, 1685, 16852.] 5. SAME-NECESSARY PARTIES.

Where, in a suit to foreclose a mortgage, a personal judgment is sought against the mortgagor, the mortgagor must be made a party to obtain judgment against him or foreclose his rights.

[Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 1272-1280.] 6. VENDOR AND PURCHASER-BONA FIDE PurCHASER-FORM OF CONVEYANCE-STATUTES.

declaring that a deed of quitclaim shall pass all the estate which the grantor could convey, and prescribing the form of a quitclaim deed, a quitclaim deed is a warning to the purchaser as to the strength of title conveyed, and is sufficient to put him on inquiry regarding it.

Under Burns' Ann. St. 1901, §§ 3343, 3347,

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 469-473.] 7. APPEAL-FINDINGS-PRESUMPTIONS.

Plaintiff sued to quiet title to land, making his grantee and his mortgagee defendants. The suit was commenced before the mortgagee, who had foreclosed, had received his deed and recorded his lis pendens. Pending the suit a third person purchased from the mortgagee after the latter had received his deed. Subsequently plaintiff withdrew the suit as against the mortgagee and obtained a judgment against the grantee, and thereafter sued to recover from the mortgagee and the third person. The court, finding in favor of plaintiff, found that the

(Appellate Court of Indiana, Division No. 1. mortgagee conveyed the land by deed to the

June 19, 1906.)

1. APPEAL PLEADINGS SUFFICIENCY REVIEW.

Where error is assigned to the conclusions of law on special findings exhibiting the same facts as those alleged in the complaint, the sufficiency of the complaint will not be determined.

third person without stating whether the deed was quitclaim or a warranty deed. Held, that as all reasonable presumptions are to be indulged in favor of the proceedings of the trial court, it would be presumed that the deed executed by the mortgagee was a quitclaim deed so that the grantee therein was put on inquiry regarding the mortgagee's title.

8. MORTGAGES

DEEM.

REDEMPTION

TIME TO REWhere a mortgagor was not a party to a foreclosure suit and was the owner of the land or the equity of redemption, his right to redeem was not limited to the statutory period of one year.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 1733-1737.]

9. SAME-ALLOWANCE OF RENTS AND PROFITS. In a suit by a mortgagor against his mortgagee, who foreclosed the mortgage, and a third person, who obtained a deed from the mortgagee, to redeem from the mortgage, the mortgagor is entitled to have the court determine the issue of taxes, rents, and improvements as between himself and the mortgagee and the third person.

[Ed. Note.-For cases in point, see vol 35, Cent. Dig. Mortgages, §§ 1778-1782.]

10. APPEAL-WAIVER OF ERRORS ON ORIGINAL HEARING-CONSIDERATION OF ERRORS

REHEARING.

ON

An appellant failing to present a question in his original presentation of the case is not entitled to raise it on a petition for a rehearing.

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 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 conclu

sions 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 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 Etna 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, Etna, 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 Etna 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 Ñ. Y. 218. N.

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 coappellant 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 shall be deemed to convey a fee-simple title with covenants that the grantor "is lawfully seised of the premises, has good right to convey the same, and guarantees the quiet possession thereof;

that the same are free from all incumbrances, and that he will warrant and defend the title to the same against all lawful claims." Section 3346, Burns' Ann. St. 1901. The force and effect of these deeds as a warning to the purchaser as to the strength or character of title or interest conveyed is widely different. The former is of itself notice to the purchaser that he is accepting a doubtful title, and is sufficient to put him upon inquiry regarding it. Meikel v. Borders, 129 Ind. 529, 533, 29 N. E. 29; Steele v. Bank, 79 Iowa, 339, 44 N. W. 564, 7 L. R. A. 524, 18 Am. St. Rep. 370; Arlington, etc., Elev. Co. v. Yates, 57 Neb. 286, 77 N. W. 677; Peters v. Cartier, 80 Mich. 124, 45 N. W. 73, 20 Am. St. Rep. 508; Condit v. Maxwell, 142 Mo. 266, 44 S. W. 467; Smith v. Rudd, 48 Kan. 296, 29 Pac. 310; Goddard v. Donaha, 42 Kan. 754, 22 Pac. 708; Gest v. Packwood (C. C.) 34 Fed. 368; Clemmons v. Cox, 114 Ala. 350, 21 South. 426; 2 Pom. Eq. Jur. 753. While a "title by warranty, for like reason, the form of the latter deed furnishes sufficient assurance to justify confidence that upon inquiry the title" will be found good and unincumbered. Rinehardt v. Reifers, 158 Ind. 675, 677, 64 N. E. 459.

Applying the rule that all reasonable presumptions are to be indulged by this court in favor of the proceedings of the trial court, Campbell v. State, 148 Ind. 527, 47 N. E. 221; Center School Township v. State, ex rel. 20 Ind. App. 312, 50 N. E. 591, it might be said that the deed in this case, in the absence of a contrary showing, was a quitclaim, and that appellee is entitled to the benefit of this fact in support of his judgment. As bearing on the question of facts known to the purchaser, or which he might have known by making inquiry, this court in Toledo, etc., R. R. Co. v. Fenstemaker, 3 Ind. App. 151, 154, 29 N. E. 440, said "One cannot purchase property where there are facts known to him sufficient to put him on inquiry, and hold it free from prior claims or equities of which due inquiry would have given him information. A party in possession of certain information will be chargeable with knowledge of all facts which an inquiry suggested by such information would have disclosed to him."

On the question of appellee's right to redeem after the year allowed by statute therefor, as we see this case, is beyond question. It might be inferred from appellant's argument that they question this proposition, for in substance they say, if appellee was the owner of the land at the time he filed his lis pendens, he has ever since been the owner, and might have redeemed at any time. during the year allowed by our statute for redemption. This is true, but if he was not a party to the foreclosure proceeding, and was the owner of the land, or rather the equity of redemption, his right to redeem was not limited to the statutory period. Jewett v. Tomlinson, 137 Ind. 326, 329, 36

« ΠροηγούμενηΣυνέχεια »