
    Ragan and Another v. Lower and Others.
    
      A. mortgaged to the commissioners of the Sinking Fund, an 80 acre and a 70 acre tract of land, to secure a loan, and afterwards deeded the 80 acre tract to B. Afterwards, the following arrangement was made between A., B., and the commissioners: The latter agreed that if B. would pay 20 dollars on the mortgage, and execute a mortgage for 80 dollars on the 80 acre tract, the sum of 100 dollars should be credited on A.’s mortgage, and the 80 acre tract should be released from it. B. did so; and A. thereupon credited the amount of 100 dollars on the purchase-money. The commissioners, by carelessness, omitted to release the 80 acre tract from A.’s mortgage, and afterwards sold both tracts, for the non-payment of interest by A. on his mortgage, to one F., who afterwards sold the same to the son and agent of A. B. having conveyed said 80 acre tract to C., and C. to Z>., the latter filed his bill to compel A.’s son to relinquish to him said 80 acre tract. A., and his said son, and C. and the commissioners were made defendants. The commissioners filed a cross-bill, offering to payback tbe amount received at tbe sale, and praying that the sale might be set aside, &c. The Circuit Court decreed that 4.’s son should convey the 80 acre tract to D. and the 70 acre tract to A. Held, that so much of the decree as required the conveyance of the 80 acre tract by the son to D., was right; but that the part of the decree requiring the son to convey to A. the 70 acre tract, was wrong — A. having not asked that it should be done, and no rights of third persons appearing to have intervened. Held, also, that B. and C. were not necessary parties to the suit.
    
      Saturday, December 20.
    ERROR to the Hendricks Circuit Court.
   Perkins, J.

Andrew T. Lower brought his bill in chancery against Zachariah S. Ragan, Robert Ragan, John J. Owsley, and the commissioners of the sinking fund of Indiana, setting forth that Robert Ragan, on the 4th day of January, 1836, mortgaged to said commissioners, by one conveyance, an 80 acre and a 70 acre tract of land, situate in Hendricks county, to secure the payment, in five years, of 200 dollars, with annual interest; that on the 14th of December, 1838, said Ragan deeded the 80 acre tract, for the consideration of 300 dollars, to Samuel Carbaugh, which deed was recorded January 17, 1839; that afterwards, and before February 17th, 1841, the following arrangement was made between said Carbaugh, Ragan, and the sinking fund commissioners, to-wit: that Carbaugh should pay the sinking fund commissioners 20 dollars; should execute to them a mortgage on the 80 acre tract of land, purchased of said Ragan, for 80 dollars; that these two sums, (the 20 and the 80 dollars, making 100 dollars,) should be credited on the mortgage of Ragan for 200 dollars on the 80 acre and the 70 acre tracts, to said commissioners; that thereupon said 80 acre tract should be released from the operation of said 200 dollar mortgage, and 100 dollars be credited by Robert Ragan to said Carbaugh on the purchase-money of said 80 acre tract; that in pursuance of said arrangement, the 20 dollars was paid, the mortgage for 80 dollars was executed by Carbaugh to the commissioners, the credit of 100 dollars was given by them on the Ragan mortgage, and Carbaugh was credited with the 100 dollars by Ragan, but the commissioners, by carelessness, neglected to enter the release of Carbaugh's 80 acre tract from the operation of Ragan's prior mortgage to said commissioners; that, afterwards, on the 25th of September, 1841, Carbaugh sold and conveyed said 80 acre tract, subject to the mortgage executed by him to the sinking fund commissioners on the same, to one English Stevens; and that said Stevens, on the 25th of April, 1842, sold and conveyed the same to the plaintiff in this bill, Andrew T. Lower, subject to said last-mentioned mortgage, and on which mortgage Lower had since regularly paid the interest to the sinking fund commissioners. The bill further alleges that Ragan neglected to pay the interest on the remaining 100 dollars of his mortgage upon both tracts of land, whereby said mortgage became forfeited, and the commissioners, forgetting that they had agreed to release the 80 acre tract, sold both of said tracts, the 80 acre and the 70 acre, to John J. Owsley, for the balance due on said Ragan mortgage; that Owsley subsequently conveyed the whole of the land to Zachariah S. Ragan, the son, and agent in the business, of said Robert Ragan, the original mortgagor; that said Zachariah now claims to hold the whole of said land, as against his father, and all others, whereby said Lower will lose his 80 acre tract, and the sinking fund commissioners the 80 dollars which they credited on said original mortgage from Ragan on receiving the mortgage on the 80 acre tract from Carbaugh.

The bill prays that Zachariah S. Ragan may be compelled to relinquish to the plaintiff, Lower, his said 80 acre tract of land.

The two Ragans, Owsley, and the sinking fund commissioners answered. Carbaugh and Stevens are not made parties to the suit. The said commissioners made then-answer a cross-bill, offered to pay back the amount received at the sale by them, and prayed that said sale might be set aside and all things placed as they were before it took place. Depositions were taken, the cause submitted to the Court, and a somewhat lengthy decree made, which it will not be necessary to set out at length.

Owsley having relinquished the title obtained by him at the commissioners’ sale, to Zachariáh S. Ragan, who, the case shows, was the agent of Robert Ragan, and possessed of knowledge of all the facts and equities of the case when he took the title from Owsley, the case stands, substantially, as it would, had Robert Ragan been the purchaser, instead of Owsley, at the commissioners’ sale. Had said Robert been the purchaser at said sale, the merits of this case would have been easily determined. Having previously conveyed the 80 acre tract, which had passed by mesne conveyances to Lower, and being bound to pay the prior mortgage incumbering said 80 acre and said 70 acre tracts, his purchase at the mortgage-sale would have been but a mode of satisfying said mortgage, and the title obtained thereby, as to the 80 acre tract, would have inured to the benefit of Lower, and as to the 70 acre tract, it would have perfected the title in himself; and no legal proceedings would have been necessary on the part of Lower. But, in the case, as it stands, the title being held by Zachariah 8. Ragan, agent of Robert, it was proper to decree a conveyance, from him to Lower, of the 80 acre tract, and that the same should be held by Loioer subject to the mortgage by Carbaugh, which he had assumed, to the sinking fund commissioners. But as to the 70 acre tract, as Robert Ragan had not asked that the title to it should be conveyed from his agent to him, and as no rights of third persons, so far as appears, required such conveyance, we think it should have been left undisturbed. We think that part of the decree requiring Z. S. Ragan to convey to Lower his 80 acres, and that Lower should hold the same subject to the 80 dollar mortgage of Carbaugh, should be affirmed, with costs; but that the balance of the decree should be reversed.

We do not think it was material that Carbaugh and Stevens should be made parties to this bill.

Per Curiam.

That part of the decree requiring Zacha riah S. Ragan to convey to Lower said 80 acre tract of land, subject to said mortgage of Garbaugh, is affirmed, with costs. The residue is reversed.

C. C. Nave, for the plaintiffs.

J. Morrison and S. Major, for the defendants.  