Gaines v. Walker

16 Ind. 361, 1861 Ind. LEXIS 186

• Court: Indiana Supreme Court
• Decided: June 10, 1861
• Status: Published

Opinion

Per Curiam.

Suit to foreclose a mortgage. The suit is against husband and wife. Order of sale, and of execution for the overplus against the defendants.

There was a paragraph of the answer alleging that a certain judgment creditor of the mortgagor, junior’to the mortgage, was not made a party defendant. This paragraph was not replied to. The judgment creditor had only a general lien upon the equity of redemption. Whitehead v. Cummins, 2 Ind. 58. And such creditor is not regarded in the light of a purchaser for a valuable consideration (Story’s Eq. PL, § 807), and is not a necessary party to a foreclosure suit. The issue of fact taken upon such a paragraph would be immaterial.

Another paragraph of the answer alleged that one Thatcher, now dead, once owned the land; that it was sold from him afe sheriff’s sale, and that his widow survives. This answer was bad for uncertainty. It should have shown that the sheriff’s sale was subsequent to 1853. Strong v. Clem, 12 Ind. 37.

M. M. Ray and B. F. Davis, for the appellants. T. A. McFarland, for the appellee.

. may remarked tihat there was a demurrer to the complaint, assigning for cause, “ defect of partiesbut the defect was not pointed out. It should have been. If it was meant that the assignor of the notes was a necessary party, it was a mistake, as the notes were assigned by indorsement.

The order of execution for the part of the judgment not satisfied by sale' of the mortgaged premises, is altered so as to operate only on Richard G. Gaines; and as thus modified, the judgment below is affirmed, with 1 per cent, damages and costs. The alteration of the order might have been procured on motion below. The error in it was doubtless merely clerical.

Affirmed, with 1 per cent, damages and costs.