Cartright v. Briggs

Worden, J. —Action by appellant against appellee. Demurrer to complaint sustained; exception; and final judgment for the defendant. The error assigned questions the correctness of the ruling on the demurrer. The complaint contains two paragraphs, -but they are not essentially dissimilar. The following are the substantial facts briefly stated. In 1839, the school commissioners of Sullivan county sold to one Henry Rotramel, forty acres of land in section sixteen, in one of the townships of that county, supposed to be school land, the purchaser paying a part of the purchase-money, and taking a certificate of purchase, which he afterward assigned to the plaintiff. The plaintiff also pur [185] chased another forty-acre tract of the school commissioners, in the same section. Afterward, the auditor of the county made deeds to the plaintiff of the land, and took from him the usual school-fund mortgage to secure the payment of the unpaid purchase-money and the interest thereon. The plaintiff took, and still retains, possession of the land, and has made lasting and valuable improvements thereon. But it is alleged that the title to the land was not in the inhabitants of the township, but on the contrary, that another section had been set apart to the inhabitants of that township for school purposes, instead of section sixteen, and that section sixteen had been granted to the State of Indiana for the extension of the Wabash and Erie Canal. It is alleged that the defendant, the auditor of the county, is about to sell the land under the mortgage, to make the unpaid purchase-money and interest. Prayer that he be enjoined until the plaintiff's title shall be made good. We are of opinion that the demurrer was correctly sustained. There are several substantial reasons why the col-' lection of the unpaid purchase-money and interest, by a sale of the premises, should not be enjoined. In the first place, there are no covenants broken, nor is any fraud alleged. In the case of Laughery v. McLean, 14 Ind. 106, it was held that in the absence of covenants and fraud, a failure of title was no defence to an action for purchase-money. This case has been approved and followed in many others since. We cite the following: The Terre Haute, etc., R. R. Co. v. Norman, 22 Ind. 63; Coleman v. Hart, 25 Ind. 256; Starkey v. Neese, 30 Ind. 222 ; James v. Hays, 34 Ind. 272. In this case, however, there is no attempt being made to hold the plaintiff personally liable for the residue of the purchase-money and interest, but only to subject the land to the payment thereof. If the inhabitants of the township had no title, and if the plaintiff has none, we do not see how a sale of the land under the mortgage could injure the plaintiff. He has just such title as the inhabitants of the township had, and he mortgaged back just such title as he re [186] ceived. If nothing passed to him by his deeds, and if he mortgaged nothing, then nothing would pass to a purchaser under the mortgage, and he could not be hurt by such sale. It is held that in a suit to foreclose a mortgage given for purchase-money, want of title in the vendor is no defence to the foreclosure. Hubbard v. Chappel, 14 Ind. 601; Hume v. Dessar, 29 Ind. 112; Rogers v. Place, 29 Ind. 577; Hanna v. Shields, 34 Ind. 84. y. C. Denny, G. G. Reily, and W. C. yohnson, for .appellant. y. M. Allen, W. Mack, ÍY. H. Duncan, and S. Coulson, for appellee. Besides all this, the plaintiff is in the quiet and undisturbed possession of the premises. This possession may ripen, if it has not already, into a perfect title. The statute of' limitations runs against the State. 2 G. & H. 164, sec. 224. Even had there been a covenant of seizin in the plaintiff’s deeds, he could only have recovered nominal damages thereon until he was evicted. See cases cited in Hanna v. Shields, supra. The judgment below is affirmed, with costs.