*

*

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

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 pro- one Hosford became the purchaser. The junceeds of the sale.

ior mortgagee instituted a suit to, redeem. In appellants' pleadings it is denied that It was contended by Hosford, among other any liens existed on the property, when or things, that the junior mortgagee, in order dered sold at receiver's sale, which were to redeem, must pay the amount of the foresuperior to the lien of either mortgage. closure 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.

foreclosure judgment nor on the amount he Appellee maintains that the first mortgage paid at the sheriff's sale. Had he purchased bondholders, by accepting the dividend order- the property for less than the amount due ed paid by the receiver, became bound by upon the mortgage, the junior incumbrancers that decree as much as if originally made could not redeem by paying the sum of his parties to the petition to sell; that appellee purchase money, with interest, but would be occupies the position of equitable assignee required to pay the whole mortgage debt.” of the first mortgage and consequently en- In McKernan y. Neff (1873) 43 Ind. 503, titled to priority for the entire amount there- appellees were holders of a second mortgage of; and that it is immaterial whether the and had not been made parties to a foreMarion superior court erroneously ordered closure suit by the holder of the first mortthe payment of inferior liens to the extent gage. This court said: "The decree of foreof $6,500, as that is a matter of no concern closure and sale of the mortgaged premises except to the first mortgage bondholders. have not affected the rights of the appellees. The trial court adopted appellee's theory of * * * As to the appellees, the foreclosure the law.

can only have the effect to transfer to the [1] As to appellants, the order of sale by purchaser the interest of the mortgagee in. the receiver, entered by the Marion superior the mortgage foreclosed, who occupies the court, was a nullity for lack of jurisdiction position of an assignee." Gaskell v. Viquesover their persons. Hosford v. Johnson, 74 ney, 122 Ind. 224, 23 N. E. 791, 17 Am. St. Ind. 480.

Rep. 364; Spurgin v. Adamson, 62 Iowa, 661, [2] The first mortgage bondholders, by ac- 18 N. W. 293; 27 Cyc. 1827. cepting the $12,000 dividend, estopped them- [4-6] Appellants contend that no principle selves from questioning the order, by virtue of equity prevents the advancement of a junof which the receiver made the sale, and be- ior lien, where the senior one is reduced by came bound by it as fully as if made parties gift or otherwise; that under the facts here to the petition; and, as to them and the disclosed the purchaser's rights arise from mortgagor, the receivership sale was valid. the doctrine of subrogation only and are not

[3] The parties here occupy a position measured by the rule applicable to equitable closely analogous to that where a first mort- assignees. gagee forecloses his mortgage without making There was no intent to reduce the first a junior lienholder a party to the proceeding. mortgage indebtedness by gift to the second In such case the rights of the junior mort- mortgagee or other person. The debt was gagee are unaffected. The purchaser at such not reduced in any other manner. The first sale acquires and combines the rights and mortgage bondholders accepted the $12,000 interests of the mortgagor and senior mort- dividend for the presumed reason that they gagee. By the deed he acquires the legal thought they could do no better. Had they title and right of redemption of the mort- legally assigned the first mortgage to the gagor, and in addition thereto equity. may purchaser, the second mortgagees could not maintain the life of the senior mortgage for have been heard to question the amount of his benefit. Catterlin v. Armstrong, 101 Ind. the consideration received therefor. While

102 N.E.-53

*

ignorance of law does not relieve a person, estate in virtue of any previous marriage, she of the consequences of its operation, appel- may not during the second marriage alienate lants are not in a position, while lawfully such marriage the real estate shall go to her

such real estate, and if she shall die during treating the receivership sale as a nullity, children by the marriage in virtue of which it as to them, to obtain any advantage from the came to her, a widow cannot after remarriage legal mistakes of the first mortgagee or pur- alienate land which came to her by virtue of a chaser, growing out of a transaction founded voluntary alienation even for the payment of

former marriage, nor is the land subject to inon a decree binding on them but not on the debts incurred during widowhood. second mortgagees.

[Ed. Note.-For other cases, see Dower, Cent. In a foreclosure sale under a decree to Dig. $$ 367-373, 376, 377; Dec. Dig. & 114.*] which the junior mortgagee was not a party, | 4. DOWER ($ 114*)-ALIENATION OF PROPERTY it seems to be the settled rule in this juris

-INVOLUNTARY ALIENATION. diction, in a subsequent action by the second her first husband incurred debts during her

Where a widow who took real estate from mortgagee, to treat the purchaser as the widowhood, but remarried before they were reholder, by equitable assignment, of the first duced to judgment, the judgment did not aumortgage. Disregarding form and consider-thorize a sale of the fee, for Burns' Ann. St. ing only the substance of the transaction, alienate such property after remarriage, and

1908, § 3015, provides that the widow cannot the same rule should apply to the facts here. to permit such a sale would allow the widow Appellants were not bound by the receiver- to do indirectly what she cannot do directly. ship decree and lawfully elected to treat it [Ed. Note. For other cases, see Dower, Cent. as a nullity as to them; and, while so treat- Dig. SS 367–373, 376, 377; Dec. Dig. § 114.*] ing it, they are not in a position to obtain 5. CONSTITUTIONAL LAW ($ 178*) IMPAIRany advantage from the mistakes of those

MENT OF OBLIGATION OF CONTRACTS—WHAT

CONSTITUTES. bound by the judgment. Stevens v. Mid

Defendant traced his title through a purHants R. Co., 8 Law. Rep. 1064.

chaser at execution sale of the interest of Whether the .Marion superior court erred plaintiffs' mother in the lands of their father, in decreeing the payment of the $6,500 to which was sold under a judgment recovered lienholders other than the first mortgagee continuance of such marriage. 1 G. & H. p.

against her after her remarriage and during the is immaterial here. It is evident that appel- 294, § 18, now Burns' Ann. St. 1908, § 3015, lants were not entitled to it and were not prohibited a widow who remarried from alieninjured by the erroneous application of such ating land which descended to her from a forfunds. The Montgomery circuit court did death during such marriage the land should de

mer husband, and provided that in case of her not err in treating the purchaser as an equi- scend to the children of the first marriage. Betable assignee of the first mortgage indebted-fore the purchase of defendant's grantor or the ness and decreeing priority to the extent of recovery of the judgment under which the lands

were sold, this statute was held to prevent the the entire debt.

sale of such lands under execution during the Judgment affirmed.

coverture of the widow under a second marriage; there being children of the first living. Held that, as the widow died during the sec

ond marriage, the rights of her children by the HERRING et al. v. KENEIPP. (No. 21,778.)1 theory that there would be an impairment of

first marriage could not be defeated on the (Supreme Court of Indiana. Oct. 9, 1913.)

the obligation of the contract, because an earli

er decision had permitted the sale of a widow's 1. DowER (8 114*) - "ALIENATION” — WHAT interest under execution after her second mar

8 — “" CONSTITUTES.

riage had been dissolved by death of her second The sale under execution of land which a husband. widow took in fee from her husband is an alien- [Ed. Note. For other cases, see Constituation within Burns' Ann. St. 1908, § 3015, pro- tional Law, Cent. Dig. $ 521; Dec. Dig. $ 178.*] viding that, if a widow shall marry a second

ADVERSE time holding real estate by virtue of her pre-6. ADVERSE POSSESSION (8 62*) vious marriage, such widow may not during

HOLDING-WHAT CONSTITUTES. the second marriage alienate such estate.

Where a widow who had children by her [Ed. Note.-For other cases, see Dower, Cent. first marriage, and took real estate from her Dig. $$ 367–373, 376, 377; Dec. Dig. § 114.*

first husband, remarried, she then had only a For other definitions, see Words and Phras- death during coverture, consequently purchas

base fee in the land, determinable upon her es, vol. 1, pp. 302–306; vol. 8, p. 7571.]

ers of her interest at execution sale upon a 2. DoWER (S. 117*)-RIGHTS OF CREDITORS-judgment recovered after the second marriage JUDGMENT LIENS.

did not acquire the fee; but, as she had the Where a widow who took lands from her right of possession, such purchasers did not, husband incurred debts before a second mar- by holding the land until her death during covriage, such debts did not become a lien or a erture, acquire any adverse title against the charge upon her interest in her husband's land children of the first marriage. until they were reduced to judgment.

[Ed. Note. For other cases, see Adverse [Ed. Note.--For other cases, see Dower, Cent. Possession, Cent. Dig. $8 324-327, 329–332; Dig. $ 375; Dec. Dig. $ 117.*]

Dec. Dig. $ 62.*] 3. DOWER (8 114*) - REMARRIAGE - ALIENA-7. DOWER ($ 118*)-RIGHTS OF WIDOW. $ —

- ) TION.

Where a widow remarries, her children by Under Burns' Ann. St. 1908, § 3014, pro- her former husband have no interest in the viding that, if a husband die leaving a widow, real estate which vests in her from the forone-third of his real estate shall descend to her mer husband before the time of her death durin fee simple, and section 3015, providing that, ing coverture, consequently the rights of such if a widow shall marry again holding any real 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 & Rop'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.*]

ments, being purchased by Henry M. SumAppeal from Circuit Court, Gibson County; for the sum of $535.44, the amount of all the

mers, one of the principal judgment creditors, Herdis Clements, Judge.

Action by Henry Herring and others judgments and costs. That the lands levied against George T. Keneipp. From a judg- upon by Henry M. Summers et al. were apment for defendant, plaintiffs appeal. Re- the 10th day of April

, 1880, the sheriff exe

praised for the sum of $1,490.66%; that on versed and remanded, with directions to sustain demurrers to the answer and the cross- land sold, through whom by mesne convey

cuted a deed to Henry M. Summers for the complaint.

ances appellee claims title. On the 30th day John W. Brady, of Evansville, and Luther of August, 1880, Henry M. Summers and Benson and Claude A. Smith, both of Prince- John W. Harmon, as guardian of Henry ton, for appellants. Oscar M. Welborn, Lu-Herring and Barbara Herring, minors, filed cius C. Embree, and Morton C. Embree, all of in the Gibson circuit court of Indiana what Princeton, and William L. Smothers, of they denominated an ex parte petition for Owensville, for appellee.

the partition of the lands of which Thomas Herring died seised, in which it was alleged

that Henry M. Summers had become the ownMYERS, J. This cause was transferred

er of an undivided one-third through the from the appellate court in view of a sup

proceedings aforesaid. posed conflict in cases in this court, and from the fact that a constitutional question was

[1-3] Appellants rely on 1 G. & H. p. 294,

“Sec. raised on appellee's brief.

$$ 17, 18, Burns' 1908, 883014, 3015.

See Herring v. Keneipp, 46 Ind. App. 424, 92 N. E. 742.

17. If a husband die testate, or intestate, This was an action by appellants against leaving a widow, one-third of his real estate appellee in ejectment and to quiet title to shall descend to her in fee simple, free from certain real estate in Gibson county, Ind. On all demands of creditors; Provided, however, April 18, 1875, Thomas Herring died intes- that where real estate exceeds in value ten tate, the owner in fee simple of certain lands thousand dollars, the widow shall have onein Gibson county, Ind., leaving surviving him fourth only, and where the real estate exSusan Herring, widow, and appellants Henry ceeds twenty thousand dollars, one-fifth only,

"Sec. 18. If a widow Herring, son, then of the age of five years, as against creditors.” and Barbara Herring, daughter, then of the shall marry a second or any subsequent time, age of one year, issue of said marriage. holding real estate in virtue of any previous While Susan remained a widow, and the marriage,

such widow may not, children of the first marriage were living, during such

marriage, with or and prior to her marriage to James L. without the assent of her husband, alienate Knowles on October 16, 1878, whose wife she such real estate; and if, during such marcontinued to be until her death in December, riage, such widow shall die, such real estate 1909, she contracted debts, alleged to be for shalí go to her children by the marriage in goods, wares, and merchandise, part of which virtue of which such real estate came to her, were alleged to have been necessary to the if any there be.” Approved May 14, 1852. support of herself and said minor children,

Appellants bring this suit, alleging that and alleged to have been goods, wares, and their mother, Susan Knowles, had no power merchandise sold to said Susan, for which to alienate said lands, and claiming the land debts she gave notes payable one day after described in their complaint in fee simple. date to three several creditors. After her Appellee, defendant below, filed an affirmaremarriage actions were commenced by ber tive answer in one paragrapb, and also a various creditors for the collection of said cross-complaint, to each of which plaintiffs notes, alleging that she had no other prop- demurred for want of facts, separately, each erty, and seeking to subject one-third of the of which was overruled by the court, and exland of which Thomas Herring died seised ceptions saved by appellants. Issues were to the payment of this indebtedness in each joined by answer of general denial to the of the actions, and that her one-third interest cross-complaint, and reply to the answer by in the real estate be sold. Her husband, general denial, and on trial by the court, Knowles, was also made a party defendant. and over motion by appellants for a new She answered that by reason of the facts set trial, judgment was rendered for the deout herein the land was not subject to sale fendant. for the payment of these debts. It was ad- Errors assigned for reversal are: First, the judged in the trial court that it was so sub-court erred in overruling the demurrer to ject, and it was ordered sold, and there was the answer; second, the court erred in overno appeal. These judgments were rendered ruling the demurrer to the cross-complaint; February 3, 1879. Executions issued, and third, the cross-complaint does not state facts

*

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

sufficient to constitute a cause of action; ! Can the interest in real estate which vests fourth, the court erred in overruling the mo- in a widow through the death of her hustion for a new trial.

band be subjected to sale during a second Appellee contends "that it has been ex-marriage for debts created while she is a pressly decided by the Supreme Court of widow; there being children alive by the Indiana in the year 1863 (Philpot v. Webb, 20 marriage by virtue of which the interest came Ind. 509) that at the death of a first husband, to her? leaving a widow and children surviving him, The language of the statute and the decione-third of his real estate descended to his sions of this court are against alienation widow in fee; that her subsequent marriage during the marriage, and sales upon execution did not divest it; that at her death while are held to be alienations within this statute. married to the second husband the real es- See cases collected in Kemery v. Zeigler, 176 tate which such widow took from her first Ind. 660, 664, 96 N. E. 950; Forgy v. Davenhusband was liable to be sold for the pay- port, 146 Ind. 399, 45 N. E. 592; Haskett v. ment of debts contracted by the widow be- Hazel, 83 Ind. 534; Smith v. Beard, 73 Ind. fore her second marriage.

* * "

In that 159; Schlemmer v. Rossler, 59 Ind. 326. case Waggoner died in 1859, owning certain It is also to be noted that it is in case of real estate, and left surviving him his widow death of the wife during the marriage that and a number of children, issue of such mar- "such real estate shall go to her children by riage. In September, 1860, the widow exe- the marriage in virtue of which such real escuted, jointly and severally, with one Hender- tate came to her," etc. It then comes to this son, two promissory notes. In November, that, if she dies during marriage, the prop1860, the widow intermarried with Hender- erty goes at once to the children of the forson, and in March, 1861, she died. In June, mer marriage; that is, she had a fee condi1862, Webb, the payee, brought suit against tional, subject to be defeated if she shall her children by the first husband to enforce remarry and die during the marriage. If she payment out of the interest of the widow in survive a second or other marriage, her inthe real estate of her first husband; Hender- terest is the same as if she had not remarson being insolvent. The contention of the ried, and in this view the Philpot Case is corchildren, defendants, below, was that their rect; but it is not in point here for the reamother took a life estate and not a fee to son that the disability created by the second one-third of the lands of which her first marriage had been removed by the death husband died seised, and that her interest in of the second husband, and Mrs. Waggoner the lands was not chargeable with any debts was a feme sole at the time of her death, and contracted by her, and it was decided by the the cases relied on by appellants are not in lower court, on the theory that she did not conflict with it, because they are all cases take a life estate, but a fee, and her un- of sale on execution, or alienation attempted, divided one-third interest in the real estate during the second or subsequent marriage. of which her husband died seised was liable Such are the cases of Kemery V. Zeigler, for the debts contracted. The case was af- supra; Forgy v. Davenport, supra; 14 Cyc. firmed without any disclosed construction of 78, note 88; Id. 127, note 78; Haskett v. the statute which gave her the interest (1 Hazel, supra; Smith v. Beard, supra; G. & H. p. 291, $$ 17, 18), and without citing Schlemmer v. Rossler, supra; Davis' Adm'r any former decisions. That case seems to v. Kelly, 132 Ind. 309, 311, 31 N. E. 942; have been determined wholly upon the ques. Wright v. Wright, 97 Ind. 444. tion whether at her husband's death the then It is not contended that the promissory Mrs. Waggoner took a fee, unconditionally, notes given by Mrs. Herring during her widthat is, without regard to any other statute; owhood created any lien upon or affected any it appearing to be taken as conceded that, alienation of her real estate. Such debts did if she took a fee, it was subject to sale after not become a charge upon these lands until her death for debts created before her re- they were reduced to judgments. At the time marriage The case at bar presents one they were reduced to judgments, however, feature which was present in the above case, Mrs. Herring had remarried, and, as she had viz., the contracting of the indebtedness be- children alive by the marriage in virtue of fore remarriage; but it presents a wholly which her real estate came to her, such real different feature in the fact that the sale in estate was no longer subject to alienation. the former case was made after she became a Section 3015, supra. widow again, while here the sale was made [4] Appellee, however, seeks to draw a dis. during 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 the real estate may be sold upon execution remarriage, the land may be subjected to the during the second marriage to satisfy debts debts, either during or after the debtor again 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 statIn a later case, Smith v. Beard, supra, ute has been settled by judicial construction, upon a similar state of facts an opposite the construction becomes, so far as contract conclusion was reached. In that case the de rights acquired under it are concerned, as fendant, while a widow, had contracted cer- much a part of the statute as the text itself, tain debts. During her second marriage suit and a change of decision is to all intents was instituted, and judgment obtained. Ex and purposes the same in its effect on conecution was issued and levied on the land tracts as an amendpient of the law by means which had vested in her upon the death of of a legislative enactment." Thompson v. her first husband. There were children by Henry, 153 Ind. 56, 59, 54 N. E. 109, and her first marriage alive, and it was held by cases cited; Center School Twp. V. State, this court that the land was not liable to be 150 Ind. 168, 174, 49 N. E. 961; Myers v. sold upon execution during the remarriage Boyd, 144 Ind. 496, 498, 43 N. E. 567; United to satisfy such debts. The distinction lies States, etc., Co. v. Harris, 142 Ind. 226, 243, in the fact that in the Philpot Case the sale 40 N. E. 1072, 41 N. E. 451; Stephenson was made for debts contracted during widow-v. Boody, 139 Ind. 60, 38 N. E. 331; Haskhood, and at her death a widow, and the ques- ett v. Maxey, 134 Ind. 182, 191, 33 N. E. tion which is before the court in the present 358, 19 L. R. A. 379; Crigler v. Shepler, case was raised and discussed in Smith v. 79 Kan. 834, 101 Pac. 619, 23 L. R. A. (N. S.) Beard as to a sale during the second mar. 500, 504, and cases cited. riage, and was not considered in the Philpot We have pointed out that it had not been Case, or involved in that case.

decided in Philpot v. Webb, supra, that a sale In Schlemmer v. Rossler, supra, the court could be made during the existence of the said: “The object of the statute seems to second or subsequent marriage. The first be twofold, first, to protect a woman who has case in which the question was really decided thus received real estate by virtue of a for- was Schlemmer v. Rossler, supra. That case mer marriage from improvident and injudi- was decided in 1878, prior to the judgment cious alienations thereof during a second or ordering the sale of these lands. It was there subsequent marriage, and, second, to preserve decided that lands which vested in a woman the property for the children of the mar- from her former husband were not subject riage in virtue of which she received it, to sale on execution during her remarriage; where there are such children, in case of her there being children by the former marriage

alive. It is true that in that case the debts death during such second or subsequent mar

on which the judgments were rendered were riage.”

contracted after the woman's second marAs was said in Government Bldg., etc., v. Denny, 154 Ind. 261, 266, 55 N. E. 757, 759. riage, instead of while she was a widow, as and authorities cited: “It is an ancient legal in the present case. We have shown, howmaxim that, when anything is prohibited ever, that it makes no difference, so far as directly, it cannot be done indirectly, or, in the alienation of her property is concerned, other words, a prohibition which the law im. whether the debts for which the executions poses cannot be evaded by any circuitous her remarriage. It is evident, therefore, that

were issued were contracted before or after contrivance." Seę, also, to the same effect, at the time these lands were sold the conWebb v. John Hancock Ins. Co., 162 Ind. clusion reached in Philpot v. Webb was not 616, 630, 631, 69 N. E. 1006, 66 L. R. A. 632. clusion reached in Philpot v. Webb was not and authorities cited; Mason v. State, 170 question here involved, and that by the sale

a prevailing rule of this court as to the Ind. 195, 202, 83 N. E. 613. In the last case appellee did not acquire any contract rights cited it is said, citing and approving Govern- under that decision. The construction of the ment Bldg., etc., v. Denny, supra: “The law eighteenth section of the statute of descents looks to substance rather than to 'shades and adopted in Schlemmer v. Rossler, supra, and shadows,' and will not permit a person to de- later in Smith v. Beard, supra, was already feat the very purpose of the law by disguis in force at the time of the sale of these ing the real character of a transaction.”

lands, and it must necessarily be adopted It follows that by no attempt of Susan Her- here. ring, widow of Thomas Herring, during any [6] After the marriage of Mrs. Herring to subsequent coverture, with children living is- Knowles, the statute forbade the incumsue of the marriage in virtue of which the brance or alienation of the real estate which real estate came to her, could she have alien- descended to her from Thomas Herring durated the real estate in question, and in the ing such marriage in such a way as to affect light of the cases cited what she could not the interest of her children by Thomas Herdo directly could not be done by others in- ring in said real estate in case of her death directly for her.

during the continuance of the marriage with [5] Appellee contends that his title is pro- Knowles. It is not the time when the debt is tected by the provisions of the federal Con-contracted, but the time when the debt is