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court rendered judgment for appellee, the, 258. The rights of the junior incumbrancer Adams Brick Company, as the equitable as- are neither diminished nor increased by such signee of the first mortgage bondholders, in proceeding. Deming-Colborn, etc., Co. v. Unthe sum of $38,584, the same being the ion National, etc., Ass'n, 151 Ind. 463, 467, 51 amount, principal and interest, of the first N. E. 936. mortgage debt, and also rendered judgment In Hosford v. Johnson, supra, the Atlas in favor of the note holders secured by the Insurance Company held a first mortgage on second mortgage in the sum of $52,141, the a parcel of real estate, which became insame being the aggregate second mortgage cumbered with a second mortgage. The comindebtedness. A sale of the mortgaged prop-pany foreclosed its mortgage without making erty was ordered, providing that appellee's the junior mortgagee a party. At the sale judgment should be first paid from the proceeds of the sale.

In appellants' pleadings it is denied that any liens existed on the property, when ordered sold at receiver's sale, which were superior to the lien of either mortgage.

one Hosford became the purchaser. The junior mortgagee instituted a suit to redeem. It was contended by Hosford, among other things, that the junior mortgagee, in order to redeem, must pay the amount of the foreclosure judgment and costs. In determining Appellants contend that, inasmuch as they the matter, this court said: "The doctrine were not parties to the receivership proceed- may be regarded as settled in this state that ings, the latter, as to them, can in no way the rights of a junior incumbrancer are in affect them, and that they are entitled to a no wise affected by the foreclosure of a sendecree awarding them priority of payment ior mortgage unless he is made a party to out of the proceeds of the proposed fore- the foreclosure proceeding. This closure sale, excepting $12,000 thereof, and being the case, the amount of redemption interest thereon, which it is conceded right- money to which Hosford was entitled dependfully belongs to appellee, by virtue of the doc-ed on the terms of the mortgage and not on the trine of subrogation.

Appellee maintains that the first mortgage bondholders, by accepting the dividend ordered paid by the receiver, became bound by that decree as much as if originally made parties to the petition to sell; that appellee occupies the position of equitable assignee of the first mortgage and consequently entitled to priority for the entire amount thereof; and that it is immaterial whether the Marion superior court erroneously ordered the payment of inferior liens to the extent of $6,500, as that is a matter of no concern except to the first mortgage bondholders. The trial court adopted appellee's theory of the law.

[1] As to appellants, the order of sale by the receiver, entered by the Marion superior court, was a nullity for lack of jurisdiction over their persons. Hosford v. Johnson, 74 Ind. 480.

[2] The first mortgage bondholders, by accepting the $12,000 dividend, estopped themselves from questioning the order, by virtue of which the receiver made the sale, and became bound by it as fully as if made parties to the petition; and, as to them and the mortgagor, the receivership sale was valid. [3] The parties here occupy a position closely analogous to that where a first mortgagee forecloses his mortgage without making a junior lienholder a party to the proceeding. In such case the rights of the junior mortgagee are unaffected. The purchaser at such sale acquires and combines the rights and interests of the mortgagor and senior mortgagee. By the deed he acquires the legal title and right of redemption of the mortgagor, and in addition thereto equity may maintain the life of the senior mortgage for his benefit. Catterlin v. Armstrong, 101 Ind.

* * *

foreclosure judgment nor on the amount he paid at the sheriff's sale. Had he purchased the property for less than the amount due upon the mortgage, the junior incumbrancers could not redeem by paying the sum of his purchase money, with interest, but would be required to pay the whole mortgage debt." In McKernan v. Neff (1873) 43 Ind. 503, appellees were holders of a second mortgage and had not been made parties to a foreclosure suit by the holder of the first mortgage. This court said: "The decree of foreclosure and sale of the mortgaged premises have not affected the rights of the appellees. * * * As to the appellees, the foreclosure can only have the effect to transfer to the purchaser the interest of the mortgagee in. the mortgage foreclosed, who occupies the position of an assignee." Gaskell v. Viquesney, 122 Ind. 224, 23 N. E. 791, 17 Am. St. Rep. 364; Spurgin v. Adamson, 62 Iowa, 661, 18 N. W. 293; 27 Cyc. 1827.

[4-6] Appellants contend that no principle of equity prevents the advancement of a junior lien, where the senior one is reduced by gift or otherwise; that under the facts here disclosed the purchaser's rights arise from the doctrine of subrogation only and are not measured by the rule applicable to equitable assignees.

There was no intent to reduce the first mortgage indebtedness by gift to the second mortgagee or other person. The debt was not reduced in any other manner. The first mortgage bondholders accepted the $12,000 dividend for the presumed reason that they thought they could do no better. Had they legally assigned the first mortgage to the purchaser, the second mortgagees could not have been heard to question the amount of the consideration received therefor. While

ignorance of law does not relieve a person of the consequences of its operation, appellants are not in a position, while lawfully treating the receivership sale as a nullity, as to them, to obtain any advantage from the legal mistakes of the first mortgagee or purchaser, growing out of a transaction founded on a decree binding on them but not on the second mortgagees.

In a foreclosure sale under a decree to which the junior mortgagee was not a party, it seems to be the settled rule in this jurisdiction, in a subsequent action by the second mortgagee, to treat the purchaser as the holder, by equitable assignment, of the first mortgage. Disregarding form and considering only the substance of the transaction, the same rule should apply to the facts here. Appellants were not bound by the receivership decree and lawfully elected to treat it as a nullity as to them; and, while so treating it, they are not in a position to obtain any advantage from the mistakes of those bound by the judgment. Stevens v. MidHants R. Co., 8 Law. Rep. 1064.

Whether the Marion superior court erred in decreeing the payment of the $6,500 to lienholders other than the first mortgagee is immaterial here. It is evident that appellants were not entitled to it and were not injured by the erroneous application of such funds. The Montgomery circuit court did not err in treating the purchaser as an equitable assignee of the first mortgage indebtedness and decreeing priority to the extent of

the entire debt.

Judgment affirmed.

HERRING et al. v. KENEIPP. (No. 21,778.)1 (Supreme Court of Indiana. Oct. 9, 1913.) 1. DOWER (§ 114*) - "ALIENATION" — WHAT CONSTITUTES.

The sale under execution of land which a widow took in fee from her husband is an alienation within Burns' Ann. St. 1908, § 3015, providing that, if a widow shall marry a second time holding real estate by virtue of her previous marriage, such widow may not during the second marriage alienate such estate.

[Ed. Note.-For other cases, see Dower, Cent. Dig. $$ 367-373, 376, 377; Dec. Dig. § 114.* For other definitions, see Words and Phrases, vol. 1, pp. 302-306; vol. 8, p. 7571.] 2. DOWER (§ 117*)-RIGHTS OF CREDITORSJUDGMENT LIENS.

Where a widow who took lands from her husband incurred debts before a second marriage, such debts did not become a lien or a charge upon her interest in her husband's land until they were reduced to judgment.

[Ed. Note.-For other cases, see Dower, Cent. Dig. 375; Dec. Dig. § 117.*] 3. DOWER (§ 114*) - REMARRIAGE — ALIENA

TION.

Under Burns' Ann. St. 1908, & 3014, providing that, if a husband die leaving a widow, one-third of his real estate shall descend to her in fee simple, and section 3015, providing that, if a widow shall marry again holding any real

estate in virtue of any previous marriage, she may not during the second marriage alienate such marriage the real estate shall go to her such real estate, and if she shall die during children by the marriage in virtue of which it came to her, a widow cannot after remarriage former marriage, nor is the land subject to inalienate land which came to her by virtue of a voluntary alienation even for the payment of debts incurred during widowhood.

[Ed. Note.-For other cases, see Dower, Cent. Dig. §§ 367-373, 376, 377; Dec. Dig. § 114.*] 4. DOWER (§ 114*)—ALIENATION OF PROPERTY -INVOLUNTARY ALIENATION.

her first husband incurred debts during her widowhood, but remarried before they were reduced to judgment, the judgment did not authorize a sale of the fee, for Burns' Ann. St. alienate such property after remarriage, and 1908, § 3015, provides that the widow cannot to permit such a sale would allow the widow to do indirectly what she cannot do directly.

Where a widow who took real estate from

[Ed. Note.-For other cases, see Dower, Cent. Dig. §§ 367-373, 376, 377; Dec. Dig. § 114.*] 5. CONSTITUTIONAL LAW (§ 178*) — IMPAIRMENT OF OBLIGATION OF CONTRACTS-WHAT CONSTITUTES.

Defendant traced his title through a purchaser at execution sale of the interest of plaintiffs' mother in the lands of their father, which was sold under a judgment recovered continuance of such marriage. 1 G. & H. p. against her after her remarriage and during the 294, § 18, now Burns' Ann. St. 1908, § 3015, prohibited a widow who remarried from alienating land which descended to her from a former husband, and provided that in case of her death during such marriage the land should descend to the children of the first marriage. Before the purchase of defendant's grantor or the recovery of the judgment under which the lands were sold, this statute was held to prevent the sale of such lands under execution during the coverture of the widow under a second marriage; there being children of the first living. Held that, as the widow died during the second marriage, the rights of her children by the first marriage could not be defeated on the theory that there would be an impairment of the obligation of the contract, because an earlier decision had permitted the sale of a widow's interest under execution after her second marriage had been dissolved by death of her second husband.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 521; Dec. Dig. § 178.*] 6. ADVERSE POSSESSION (§ 62*) HOLDING WHAT CONSTITUTES.

ADVERSE

Where a widow who had children by her first husband, remarried, she then had only a first marriage, and took real estate from her base fee in the land, determinable upon her death during coverture, consequently purchasers of her interest at execution sale upon a judgment recovered after the second marriage did not acquire the fee; but, as she had the right of possession, such purchasers did not, by holding the land until her death during coverture, acquire any adverse title against the children of the first marriage.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 324-327, 329–332; Dec. Dig. § 62.*]

7. DOWER (§ 118*)-RIGHTS OF WIDOW.

Where a widow remarries, her children by her former husband have no interest in the real estate which vests in her from the former husband before the time of her death during coverture, consequently the rights of such children are not barred by limitation where an

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

action for such land is brought within a year | the undivided one-third of the lands of which after the widow's death. her first husband died seised was sold by the [Ed. Note.-For other cases, see Dower, Cent. sheriff April 5, 1879, to satisfy said judgDig. 378; Dec. Dig. § 118.*]

Appeal from Circuit Court, Gibson County; Herdis Clements, Judge.

Re

ments, being purchased by Henry M. Summers, one of the principal judgment creditors, for the sum of $535.44, the amount of all the judgments and costs. That the lands levied upon by Henry M. Summers et al. were appraised for the sum of $1,490.66%; that on cuted a deed to Henry M. Summers for the the 10th day of April, 1880, the sheriff exe

Action by Henry Herring and others against George T. Keneipp. From a judgment for defendant, plaintiffs appeal. versed and remanded, with directions to sustain demurrers to the answer and the cross-land sold, through whom by mesne conveycomplaint.

John W. Brady, of Evansville, and Luther Benson and Claude A. Smith, both of Princeton, for appellants. Oscar M. Welborn, Lucius C. Embree, and Morton C. Embree, all of Princeton, and William L. Smothers, of Owensville, for appellee.

MYERS, J. This cause was transferred from the appellate court in view of a supposed conflict in cases in this court, and from the fact that a constitutional question was raised on appellee's brief. See Herring v. Keneipp, 46 Ind. App. 424, 92 N. E. 742. This was an action by appellants against appellee in ejectment and to quiet title to certain real estate in Gibson county, Ind. On April 18, 1875, Thomas Herring died intestate, the owner in fee simple of certain lands in Gibson county, Ind., leaving surviving him Susan Herring, widow, and appellants Henry Herring, son, then of the age of five years, and Barbara Herring, daughter, then of the age of one year, issue of said marriage. While Susan remained a widow, and the children of the first marriage were living, and prior to her marriage to James L. Knowles on October 16, 1878, whose wife she continued to be until her death in December, 1909, she contracted debts, alleged to be for goods, wares, and merchandise, part of which were alleged to have been necessary to the support of herself and said minor children, and alleged to have been goods, wares, and merchandise sold to said Susan, for which debts she gave notes payable one day after date to three several creditors. After her remarriage actions were commenced by her various creditors for the collection of said notes, alleging that she had no other property, and seeking to subject one-third of the land of which Thomas Herring died seised to the payment of this indebtedness in each of the actions, and that her one-third interest in the real estate be sold. Her husband, Knowles, was also made a party defendant. She answered that by reason of the facts set out herein the land was not subject to sale for the payment of these debts. It was adjudged in the trial court that it was so subject, and it was ordered sold, and there was no appeal. These judgments were rendered February 3, 1879. Executions issued, and

ances appellee claims title. On the 30th day of August, 1880, Henry M. Summers and John W. Harmon, as guardian of Henry Herring and Barbara Herring, minors, filed in the Gibson circuit court of Indiana what they denominated an ex parte petition for the partition of the lands of which Thomas Herring died seised, in which it was alleged that Henry M. Summers had become the owner of an undivided one-third through the proceedings aforesaid.

[1-3] Appellants rely on 1 G. & H. p. 294, "Sec. §§ 17, 18, Burns' 1908, §§ 3014, 3015. 17. If a husband die testate, or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors; Provided, however, that where real estate exceeds in value ten thousand dollars, the widow shall have onefourth only, and where the real estate exceeds twenty thousand dollars, one-fifth only, as against creditors."

"Sec. 18. If a widow shall marry a second or any subsequent time, holding real estate in virtue of any previous marriage, such widow may not,

during such marriage, with or without the assent of her husband, alienate such real estate; and if, during such marriage, such widow shall die, such real estate shall go to her children by the marriage in virtue of which such real estate came to her, if any there be." Approved May 14, 1852.

Appellants bring this suit, alleging that their mother, Susan Knowles, had no power to alienate said lands, and claiming the land described in their complaint in fee simple. Appellee, defendant below, filed an affirmative answer in one paragraph, and also a cross-complaint, to each of which plaintiffs demurred for want of facts, separately, each of which was overruled by the court, and exceptions saved by appellants. Issues were joined by answer of general denial to the cross-complaint, and reply to the answer by general denial, and on trial by the court, and over motion by appellants for a new trial, judgment was rendered for the defendant.

Errors assigned for reversal are: First, the court erred in overruling the demurrer to the answer; second, the court erred in overruling the demurrer to the cross-complaint; third, the cross-complaint does not state facts

sufficient to constitute a cause of action; I Can the interest in real estate which vests fourth, the court erred in overruling the motion for a new trial.

in a widow through the death of her husband be subjected to sale during a second marriage for debts created while she is a widow; there being children alive by the marriage by virtue of which the interest came to her?

The language of the statute and the decisions of this court are against alienation during the marriage, and sales upon execution are held to be alienations within this statute. See cases collected in Kemery v. Zeigler, 176 Ind. 660, 664, 96 N. E. 950; Forgy v. Davenport, 146 Ind. 399, 45 N. E. 592; Haskett v. Hazel, 83 Ind. 534; Smith v. Beard, 73 Ind.. 159; Schlemmer v. Rossler, 59 Ind. 326.

It is also to be noted that it is in case of death of the wife during the marriage that "such real estate shall go to her children by the marriage in virtue of which such real estate came to her," etc. It then comes to this that, if she dies during marriage, the property goes at once to the children of the former marriage; that is, she had a fee conditional, subject to be defeated if she shall remarry and die during the marriage. If she survive a second or other marriage, her interest is the same as if she had not remarried, and in this view the Philpot Case is correct; but it is not in point here for the reason that the disability created by the second marriage had been removed by the death of the second husband, and Mrs. Waggoner was a feme sole at the time of her death, and the cases relied on by appellants are not in conflict with it, because they are all cases of sale on execution, or alienation attempted, during the second or subsequent marriage. Such are the cases of Kemery v. Zeigler, supra; Forgy v. Davenport, supra; 14 Cyc. 78, note 88; Id. 127, note 78; Haskett v. Hazel, supra; Smith v. Beard, supra; Schlemmer v. Rossler, supra; Davis' Adm'r v. Kelly, 132 Ind. 309, 311, 31 N. E. 942; Wright v. Wright, 97 Ind. 444.

Appellee contends "that it has been expressly decided by the Supreme Court of Indiana in the year 1863 (Philpot v. Webb, 20 Ind. 509) that at the death of a first husband, leaving a widow and children surviving him, one-third of his real estate descended to his widow in fee; that her subsequent marriage did not divest it; that at her death while married to the second husband the real estate which such widow took from her first husband was liable to be sold for the payment of debts contracted by the widow before her second marriage. * * 99 In that case Waggoner died in 1859, owning certain real estate, and left surviving him his widow and a number of children, issue of such marriage. In September, 1860, the widow executed, jointly and severally, with one Henderson, two promissory notes. In November, 1860, the widow intermarried with Henderson, and in March, 1861, she died. In June, 1862, Webb, the payee, brought suit against her children by the first husband to enforce payment out of the interest of the widow in the real estate of her first husband; Henderson being insolvent. The contention of the children, defendants below, was that their mother took a life estate and not a fee to one-third of the lands of which her first husband died seised, and that her interest in the lands was not chargeable with any debts contracted by her, and it was decided by the lower court, on the theory that she did not take a life estate, but a fee, and her undivided one-third interest in the real estate of which her husband died seised was liable for the debts contracted. The case was affirmed without any disclosed construction of the statute which gave her the interest (1 G. & H. p. 291, §§ 17, 18), and without citing any former decisions. That case seems to have been determined wholly upon the question whether at her husband's death the then Mrs. Waggoner took a fee, unconditionally, that is, without regard to any other statute; it appearing to be taken as conceded that, if she took a fee, it was subject to sale after her death for debts created before her remarriage. The case at bar presents one feature which was present in the above case, viz., the contracting of the indebtedness before remarriage; but it presents a wholly different feature in the fact that the sale in the former case was made after she became a widow again, while here the sale was made [4] Appellee, however, seeks to draw a disduring the existence of the second marriage, tinction between debts contracted during her a most marked and, in view of the statute, a widowhood, when the real estate could lemost important distinction, so that the Phil-gally be alienated, and debts contracted after pot Case is not authority here, unless it be the second marriage, and it is contended that the law that, in case of debts created before remarriage, the land may be subjected to the debts, either during or after the debtor again

It is not contended that the promissory notes given by Mrs. Herring during her widowhood created any lien upon or affected any alienation of her real estate. Such debts did not become a charge upon these lands until they were reduced to judgments. At the time they were reduced to judgments, however, Mrs. Herring had remarried, and, as she had children alive by the marriage in virtue of which her real estate came to her, such real estate was no longer subject to alienation. Section 3015, supra.

the real estate may be sold upon execution during the second marriage to satisfy debts created during widowhood, under the rule in

that the sale was not made or sought in that | stitution against the impairment of the obcase during the second marriage, but after ligations of contracts, on the theory that the the death of her second husband and her own rule had been settled in the Philpot v. Webb death. Case, and it is conceded that, "after a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment." Thompson v. Henry, 153 Ind. 56, 59, 54 N. E. 109, and cases cited; Center School Twp. v. State, 150 Ind. 168, 174, 49 N. E. 961; Myers v. Boyd, 144 Ind. 496, 498, 43 N. E. 567; United States, etc., Co. v. Harris, 142 Ind. 226, 243, 40 N. E. 1072, 41 N. E. 451; Stephenson v. Boody, 139 Ind. 60, 38 N. E. 331; Haskett v. Maxey, 134 Ind. 182, 191, 33 N. E. 358, 19 L. R. A. 379; Crigler v. Shepler, 79 Kan. 834, 101 Pac. 619, 23 L. R. A. (N. S.) 500, 504, and cases cited.

In a later case, Smith v. Beard, supra, upon a similar state of facts an opposite conclusion was reached. In that case the defendant, while a widow, had contracted certain debts. During her second marriage suit was instituted, and judgment obtained. Execution was issued and levied on the land which had vested in her upon the death of her first husband. There were children by her first marriage alive, and it was held by this court that the land was not liable to be sold upon execution during the remarriage to satisfy such debts. The distinction lies in the fact that in the Philpot Case the sale was made for debts contracted during widowhood, and at her death a widow, and the question which is before the court in the present case was raised and discussed in Smith v. Beard as to a sale during the second marriage, and was not considered in the Philpot Case, or involved in that case.

In Schlemmer v. Rossler, supra, the court said: "The object of the statute seems to be twofold, first, to protect a woman who has thus received real estate by virtue of a former marriage from improvident and injudicious alienations thereof during a second or subsequent marriage, and, second, to preserve the property for the children of the marriage in virtue of which she received it, where there are such children, in case of her death during such second or subsequent marriage."

As was said in Government Bldg., etc., v. Denny, 154 Ind. 261, 266, 55 N. E. 757, 759, and authorities cited: "It is an ancient legal maxim that, when anything is prohibited directly, it cannot be done indirectly, or, in other words, a prohibition which the law imposes cannot be evaded by any circuitous contrivance." See, also, to the same effect, Webb v. John Hancock Ins. Co., 162 Ind. 616, 630, 631, 69 N. E. 1006, 66 L. R. A. 632,

and authorities cited; Mason v. State, 170 Ind. 195, 202, 83 N. E. 613. In the last case cited it is said, citing and approving Government Bldg., etc., v. Denny, supra: "The law looks to substance rather than to 'shades and shadows,' and will not permit a person to defeat the very purpose of the law by disguising the real character of a transaction."

It follows that by no attempt of Susan Herring, widow of Thomas Herring, during any subsequent coverture, with children living issue of the marriage in virtue of which the real estate came to her, could she have alienated the real estate in question, and in the light of the cases cited what she could not do directly could not be done by others indirectly for her.

[5] Appellee contends that his title is pro

We have pointed out that it had not been decided in Philpot v. Webb, supra, that a sale could be made during the existence of the second or subsequent marriage. The first case in which the question was really decided was Schlemmer v. Rossler, supra. That case was decided in 1878, prior to the judgment ordering the sale of these lands. It was there decided that lands which vested in a woman from her former husband were not subject to sale on execution during her remarriage; there being children by the former marriage alive. It is true that in that case the debts on which the judgments were rendered were contracted after the woman's second marriage, instead of while she was a widow, as in the present case. We have shown, however, that it makes no difference, so far as the alienation of her property is concerned, whether the debts for which the executions were issued were contracted before or after her remarriage. It is evident, therefore, that at the time these lands were sold the conclusion reached in Philpot v. Webb was not a prevailing rule of this court as to the question here involved, and that by the sale appellee did not acquire any contract rights under that decision. The construction of the eighteenth section of the statute of descents adopted in Schlemmer v. Rossler, supra, and later in Smith v. Beard, supra, was already in force at the time of the sale of these lands, and it must necessarily be adopted here.

[6] After the marriage of Mrs. Herring to Knowles, the statute forbade the incumbrance or alienation of the real estate which descended to her from Thomas Herring during such marriage in such a way as to affect the interest of her children by Thomas Herring in said real estate in case of her death during the continuance of the marriage with Knowles. It is not the time when the debt is

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