Public-domain · open source
OpenJurist

103 Ind. 1

Birke v. Abbott

Indiana Supreme Court

Decided June 9, 1885

Indiana Supreme Court · decided 1885-06-09

<p>Judgments.—Real Estate.—Conveyance.—Agreement to Pay Liens.—Mortgage.—Sheriff’s Sale.— Merger.— Subrogation.—■ Equity.—Contract.— Negligence.—The owner of real estate, against which existed judgment liens, sold it to B., who assumed the payment of such judgments as a part of the purchase-price. Without paying such liens, B. quitclaimed the land to 0., who did not assume them. 0. mortgaged the land to X., and after the mortgage was recorded he conveyed it by warranty deed to W., who had no actual knowledge of the X. mortgage, and who assumed the payment of the judgments. Subsequently, W. discovered the mortgage, and instead of paying the judgments he allowed the land to go to sale on them and obtained sheriff’s deeds.</p> <p>Meld, that by the assumption W. became the principal debtor and primarily liable to pay the judgments.</p> <p>Meld, also, that W. could not acquire title as against X. through the sales made on the judgments, nor will they be kept alive for the purpose of protecting the title which he acquired from his grantor.</p> <p>Held, also, that a court of equity will not relieve W. from an injudicious contract, negligently made and fully executed with knowledge of all-the facts.</p> <p>Same.— Agreement of Grantee to Pay Encumbrances.—The liability of a grantee, who assumes prior encumbrances, depends upon his contract, and. not upon the liability of his grantor.</p> <p>Same.—Subrogation.—A purchaser can not be subrogated to the benefit of an encumbrance which he has agreed to pay.' Peet ¶. Beers, 4 Ind. 46, and Ayers v. Adams, 82 Ind. 109, are distinguished.</p> <p>Elliott, J., dissents.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1885-06-09

How this case has been cited

Cited by 57 later decisions — most recently January 2005 · most notably Higham v. Harris (1886), Boswell v. Lyon (1980)

1 federal appellate · 2 district · 54 state decisions — followed in 10 states

1501885189019001910192019301940195019601970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Dissenting Opinion..

Elliott, J.

¶2I concur in the conclusion that Birke could not acquire title under the sheriff’s sale on the Colley judgments, but dissent from the conclusion that he could not hold and enforce them as liens against the Abbott mortgage.

¶3I think that as the promise to pay the Colley judgments was solely in consideration that the promisor should acquire a clear title to the land purchased, and that as the consideration failed the promise should not be enforced in favor of the mortgagee Abbott. This conclusion does Abbott no injury, because it leaves him in the same condition he was at the time he took his mortgage, while the conclusion reached by the court puts him in a better condition at the expense of Birke, and this I respectfully affirm is not equitable. The rule adopted by the court enables • a. stranger to make a promise available which the party to whom it was made could not have enforced. But for the promise it is clear, under all the authorities, that the purchaser could have used the Colley judgments for the protection of his title against the Abbott mortgage, and that promise ought not to deprive him of this right, for the reason That he did not get the consideration on which it was made, namely, a good title. Time permits only a bare statement of the main proposition which constrains this dissent, although there are others that may be suggested.

¶4Filed June 9, 1885.

/103/ind/1 · .json · Public domain