Brown v. Wuskoff

Olds, J. The complaint is in two paragraphs, each alleging a similar state of facts. The facts which are important for the determination of the questions presented, as they appear from the complaint, are as follows: On January 23d, 1877, defendants Moses Wuskoff and Daniel Husburg obtained a judgment for $163.40 against William R. Fry and Willian J. Ott, before Scott Noel, a justice of the peace of Parke county. On February 15th, 1877, execution issued thereon, and August 22d, 1877, the execution was returned by the constable nulla bona. [570] December 6th, 1880, the appellant, Joseph S. Brown, defendant "William R. Fry, and one Aaron H. Blair, purchased a tract of land at an agreed price of $5,000, containing twelve acres, situated in Montgomery county, from one Alexander Thompson, who held it as trustee. The' purchasers paid one-third cash, each furnishing.his proportionate share of the amount, and executed their notes for the balance of the purchase-money. Aaron Hughes and wife held a life-estate in the land, and Brown, Blair and Fry purchased their life-estate for $1,000, and paid cash therefor, each contributing his proportionate share thereof, and Thompson, Hughes and Hughes conveyed said land by warranty deeds to Brown in trust for himself, Blair and Fry, the purchasers executing a mortgage to Thompson for the balance of the purchase-money due him, and the deeds and mortgage were duly recorded. Brown, Blair and Fry surveyed and platted the land into lots, numbering from 1 to 42, inclusive, as Brown, Blair and Fry’s addition to Crawfordsville. April 8th, 1883, Fry borrowed $3,000 of the First National Bank of Crawfordsville, Indianá, and executed his note to the bank for the' same, with Brown and one Insley as sureties; he also executed his mortgage to Brown on his undivided one-third of all the unsold lots to indemnify Brown as such surety. January 8th, 1883, Blair sold and conveyed by warranty deed all his interest in the lots to Brown. May 9th, 1883, appellees Wuskoff and Husburg filed a duly certified transcript of their judgment against Fry and Ott in the office of the clerk of the Montgomery Circuit Court, and the same was by said clerk on said day duly recorded in the order-book of the court, and the judgment was entered in the judgment docket. May 23d, 1883, Brown, as trustee for himself and Fry, sold and conveyed by warranty deed lot 25 to William Halehan in consideration of $325, and put Halehan in possession of the same. September 25th, 1883, Fry sold and by warranty deed conveyed to Alexander Thompson all his interest in tlm lots yet remaining unsold, Thompson, in consideration for the571 conveyance, to pay $1,800 remaining unpaid on the note to the First National Bank of Crawtordsville. October 10th, 1883, Thompson paid off the note to the bank, on which Brown and Insley were sureties, and Brown entered satisfaction of the indemnity mortgage. August 31st, 1887, Thompson sold and conveyed by warranty deed all his interest in the lots to Brown. March 23d, 1888, Wuskoff and Husburg procured from the justice, Scott Noel, a certificate that an execution had been duly issued by him on the judgment in their favor against Fry and Ott, to the proper constable, and the constable had returned the same nulla bona, and on the same day filed the certificate in the office of the clerk of the Montgomery Circuit Court, and the clerk duly recorded it in the order-book of the court. March 30th, 1888, Wuskoff and Husburg caused an execution to be issued by the clerk of the Montgomery Circuit Court on the judgment, and delivered the same to appellee McCloskey, as sheriff of Montgomery county, and directed him to levy the execution on the real estate which had been so conveyed to, and was then owned by, Brown; also, on lot 25, which had been sold and conveyed to Halehan. The sheriff levied the execution on the said real estate, including lot 25, and advertised all of the said lots for sale. Thereupon, on the 23d day of April, 1888, the appellant brought this suit, alleging the facts as herein stated, asking that the sheriff be enjoined from executing said writ and selling the lots, that his title to the same be quieted, and that the indemnity mortgage be declared a first lien on the lots and foreclosed to pay the balance of the $1,800. Appellees Wuskoff and Husburg filed a joint demurrer to each paragraph of the complaint, and defendant McCloskey filed separate demurrers to each paragraph of complaint. The cause came up for hearing and the court sustained each of the demurrers to each paragraph of the complaint, to which decision of the court the appellant duly excepted, refused kv amend, and the court rendered judgment, in favor of appel [572] lees, against appellant for costs. The errors assigned are the •sustaining the demurrers to the complaint. The questions presented are: First. The justice before whom the judgment was rendered, and who certified the same, resided in Parke county, the real estate is situated in Montgomery county, and the transcript was filed and recorded in the clerk’s office of the Montgomery Circuit Court; the official character of the justice not being certified to by the clerk of the Parke Circuit Court, was the transcript entitled to record, or had it any validity as a lien without the certificate of the clerk of the Parke Circuit Court as to the •official character of the justice ? Second. More than ten years having elapsed between the rendition of the judgment before the justice of the peace and the issuing of the execution by the clerk of the Montgomery Circuit Court, Fry having disposed of all his interest in the lots before execution issued, •and Brown having become the owner of the same, except lot 25, which he had conveyed by warranty deed to Halehan, but the execution issuing less than ten years from the time •of filing the transcript, was the transcript still a lien on the interest Fry owned in the lots at the time the transcript was filed which could be enforced by execution ? A further question is presented as to the right of the appellant to have a foreclosure of his mortgage. Section 608, R. S. 1881, provides: “All final judgments in the Supreme and circuit courts for the recovery of money or costs shall be a lien upon real estate and chattels real, liable to execution in the county where judgment is rendered, for the space of ten years after the rendition thereof, and no longer, exclusive of the time during which the party may be restrained,” etc. Section 612 provides: “ It shall be the duty of every justice of the peace in this State, when requested by the plaintiff or his agent, to make out and certify a true and •complete transcript of the proceedings and judgment in any •cause upon any docket legally in his possession. The plain [573] tiff may file such transcript in the office of the clerk of any court in this State.” Section 613 provides: “ It shall be the duty of the clerk,, forthwith, to record the transcript in the order-book, and docket the judgment in the judgment docket. The judgment set forth in the transcript shall be a lien upon the real property of the defendant within the county, to the same extent as judgments of the court, from the time of filing the transcript.” The provision in section 613 is, that the judgment rendered before a justice of the peace, when certified and recorded in the order-book in the clerk’s office, shall be a lien on the real property of the defendant to the same extent as judgments of the court, from the time of filing. Section 608 declares the extent of the lien to be for the space of ten years after the rendition thereof, and no longer. Therefore, manifestly the proper construction to be given to section 613 is that the lien shall take effect from the time of filing the transcript, and that it shall extend and be in force for the period of ten years from the rendition of the judgment. In the case of Martin v. Prather, 82 Ind. 535, this court says: “ True, the filing of a transcript after the ten years had expired would not make the judgment a lien upon real estate.” It is contended by counsel for appellees that the lien extends ten years from the time of filing the transcript. We can not agree with that theory. There is no time fixed by the statute when the transcript shall or may be filed in the office of the clerk. It may be filed at any time during the lifetime of the judgment, although it would not be a lien after the ten years from the rendition thereof. Proper steps being taken, execution might be issued any time during the lifetime of the judgment, and levied by the sheriff on real estate owned by the execution defendant at the time of the levy; but to hold that the lien extends ten years from the date of filing and recording the transcript, would be to hold that ten years additional life might be given to a judgment [574] rendered before a justice of the peace by waiting until the day before the judgment is barred by the statute of limitations and then filing a certified transcript in the office of the “clerk of the circuit court. . More than ten years having elapsed between the rendition of the judgment by the justice of the peace and the issuing of the execution by the clerk of the circuit court, the lien created by the transcript had expired. Fry having before that time parted with the title to the réál estate, the appellant having become the owner of it, except lot 25, which he had before that time conveyed to Halehan by warranty deed, and the appellees, claiming a valid lien on the lots by virtue of the judgment, having had an execution issued and levied upon the lots and advertised them for sale, the appellant, on the facts stated in the complaint, was manifestly entitled to have his title to the lots quieted as against appellees, and to a restraining order to prevent the sale. The court, therefore, erred in sustaining the demurrers to the complaint. As this one question settles the whole case, it is unnecessary to pass upon the others. Lake Shore, etc., R. W. Co. v. Cincinnati, etc., R. W. Co., 116 Ind. 578. Filed Jan. 10, 1889. The judgment is reversed and cause remanded, with instructions to the court below to overrule the demurrers to each paragraph of the complaint.