Gregory v. Perdue

Ray, J.

This case was submitted to the court below upon an agreed statement of facts, verified by affidavit of the appellant, that the controversy is real and the proceedings in good'faith, to determine the-rights of the parties.

*67 On the 5th of January, 1859, Charles High, nowi and his wife Elizabeth D. High, made an absolute**wae^»»1 ranty deed to Perdue, conveying 1,615 acres of land, in Warren county, for an expressed consideration of $18,000. Afterwards High and wife claimed that the conveyance purporting to be a deed was really only a mortgage, and instituted a suit in the Warren Circuit Court to have it so adjudged, and for a redemption of the same. Pending this suit, in 1864, Charles High died, and the same was revived in the names of his widow and children, who are his heirs, and a change of venue was taken to the Boone Circuit Court, where a decree was rendered in March, 1866. By this decree, it was adjudged that the conveyance was a mortgage, and that there would be due upon it, on the 1st day of March, 1868, the sum of $80,000, for which the lands were liable, and in default of its payment the premises, or so much as might he necessary, should be sold. In short, it is an ordinary decree of foreclosure against the widow and heirs upon the whole lands. After this decree was rendered, one Levin T. Miller, the administrator of High’s estate, filed his petition in the Warren Common Pleas Court, showing the debts to he over $60,000, and that the personalty was less than $100, and procured an order for the sale of all said lands, “subject to the specific lien of Perdue for the $30,000 decree, and subject to the interest of the defendant, Elizabeth JD. High, as widow of said decedent.”

On the 15th of March, 1867, Miller, as administrator, sold the lands to the appellant Gregory, “subject to the interest of Mrs. Elizabeth D. High, widow of said decedent, and also subject to a specific lien in favor of John Perdue for the sum of $30,401.” The sale to Gregory was'for $24,239 15. (We may remark, parenthetically, that Perdue had a lien for $401, in addition to the Boone Circuit Court decree, which is since paid.) In pursuance of this sale, which was reported and confirmed, Miller made Gregory a deed for “ four-fifths of the lands.”

*68 On the 29th of January, 1867, Perdue purchased of Mira. High, who was the only wife Charles High ever had, and who was still his widow, all her interest in said lands, and took a quit-claim deed therefor. The appellee, Perdue, claimed that under the foregoing facts, the undivided four-fifths of the lands which descended to the heirs were first liable to be sold to pay said Boone Circuit Court decree, and, if sufficient therefor, that the interest of the widow, being óne-fifth of the lands conveyed to him by her, should not be bound to contribute any part of it, while appellant,Gregory, claimed that the widow’s interest should contribute its pm>rata.

The court below, upon these facts, found and adjudged that the four-fifths of the lands owned by the appellant should be sold first, and if sufficient- for- that purpose* that the lands conveyed to Perdue should not contribute toward the payment of the decree. A motion for a new trial, by the appellant, having been overruled and exceptions duly taken, this action of the court below is before this court for review. The statute provides that “parties shall have the right, in all cases, by an agreement to that effect,, to submit any matter of controversy between them, to. any-court that would otherwise have jurisdiction of such cause, upon an agreed statement of facts, to be made out and signed by the parties.” 2 G-. & II., § 386, p. 222". We think it must appear, from such statement of facts, that there exists a cause of action in favor of one of the parties against the other.

Is there any cause of action disclosed here? The- plaintiff asks to have a decree obtained in his favor in the-Boone Circuit Court, for the foreclosure of his. mortgage, and sale of the property, modified by the judgment of the Warren Circuit Court. Rut the appellee was a party to that action, and secured all he was at that time entitled to, and he has not since acquired any rights which entitle him to have that decree now. changed. The widow, whose title he has subsequently purchased, was also a party to- the decree, and *69 he must take her title, subject to the lien he has placed upon it. The widow had joined with her husband in the execution of the mortgage to the appellee, and her interest in the property so incumbered must be subject to the decree of foreclosure. It does not appear by the agreed statement of facts, that there will be any surplus remaining, either of money or property, after the execution of the decree by the sale of the property! Until such surplits is realized, there can be no question as to the rights of the appellant or appellee, in any excess. If the property does not produce more than the amount of judgment, interest and costs, it must be all applied to discharge the decree, and no question will arise to involve the parties in a controversy. . The appellant declines to find any fault with the decree of foreclosure, but is content to have it executed.

B. F. Gregory, J. Harper, J. Park, L. T. Miller and Z. Baird, for appellant. H. W. Chase and J. A. Wilstach, for appellee.

Again, would the Warren Circuit Court have any jurisdiction to modify or change a decree of the Boone Circuit Court in the execution thereof? The rule is quite well settled, that one court cannot control the execution of the orders or process of any other court of equal jurisdiction. The Indiana and Illinois Railroad Co. et al. v. Williams, 22 Ind. 198 . By what process it was intended to compel the sheriff, in executing the decree of one circuit court, to be governed by the orders of another circuit court, so far as to disregard the terms of the decree, we do not understand.

"We are satisfied that there was no case presented by the agreed statement of facts, authorizing the action of the Warren Circuit Court, -and that judgment is therefore reversed, and the cause remanded, with directions to dismiss the proceedings.

Gregory, J., being a brother of one of the parties, did not sit in the case.