Opinion
No. 26,968.
Filed April 28, 1938. Rehearing denied May 24, 1938.
1. APPEAL — Review — Subsequent Appeals — Former Decision as Law of Case. — In subsequent appeals, the judgment of the appellate tribunal on the former appeal is res judicata as to the parties of record thereto and all matters in issue and determined therein. p. 209.
2. APPEAL — Disposition of Cause — Scope of Decision in General — Extent of Relief. — Though the mandate is the vital part of a judgment of the Supreme Court, the body of the opinion may be looked to, if necessary, to ascertain the full intent, purpose, and scope of the relief granted. p. 209.
3. APPEAL — Disposition of Cause — Mandate and Proceedings in Lower Court — Powers and Duties of Lower Court — Compliance With Mandate or Directions. — It is the duty of the lower court, on remand of the cause, to comply with the mandate of the appellate tribunal and to obey the directions therein without variation. p. 209.
4. COURTS — Records — Making and Entry — Showing Time Action Taken. — When an officer or tribunal does an act by direction, the record thereof should bear the date of compliance in the absence of specific directions otherwise. p. 209.
5. EVIDENCE — Presumptions — Particular Facts — Date of Written Instruments. — A written instrument is presumed to have been executed on the date that it bears. p. 209.
6. APPEAL — Disposition of Cause — Mandate and Proceedings in Lower Court — Powers and Duties of Lower Court — Compliance With Mandate or Directions. — Where judgment directing a sheriff to deliver a certificate of sale to property sold on mortgage foreclosure was reversed with directions to enter judgment for appellant, trial court's entry of judgment directing delivery of certificate to appellant to "bear date of said sale" exceeded the scope of the mandate, which did not authorize a nunc pro tunc entry. p. 209.
7. MORTGAGES — Redemption — Right to Redeem in General — Nature of Right. — The right to redeem from a mortgage foreclosure sale is a valuable right recognized by statute and protected by principles of equity. p. 210.
8. MORTGAGES — Foreclosure by Action — Sale — Rights of Purchaser — As Affected by Redemption Right. — One bidding on realty at a mortgage foreclosure sale was charged with knowledge that the property might be redeemed. p. 210.
9. APPEAL — Hearing and Rehearing — Denial of Rehearing — Matters Adjudicated Thereby. — Where judgment and mandate of appellate tribunal, in reversing judgment determining issues between competitive bidders at a mortgage foreclosure sale, did not mention redemption rights of appellant, denial of a petition for rehearing, without any opinion, did not determine appellant's redemption rights against him although such question was fully briefed and urged as ground for rehearing, since the rehearing may have been denied upon other grounds. p. 210.
10. MORTGAGES — Redemption — Time of Redemption — Effect of Failure to Accept Bid. — Where sheriff on mortgage foreclosure sale was uncertain which of two bids was bona fide and the best bid offered, and refused to issue a certificate to either bidder, there was no sale at that time, as respects time for redemption, since there was no acceptance. p. 211.
11. APPEAL — Assignment of Errors — Filing and Annexing to Record — Place of Annexation. — Though court rule required annexation of the assignment of errors to the front of the transcript following the index, attaching the same to the back thereof did not require dismissal where the index showed where the assignment could be found, the record was not voluminous, and the court was not seriously burdened by the technical violation of the rule. p. 212.
12. MORTGAGES — Redemption — Time for Redemption — Effect of Appeal From Order Approving Sale. — On appeal from a judgment determining which of competitive bidders was entitled to a certificate of sale in mortgage foreclosure proceedings, the mandate of the appellate tribunal directed that the certificate of purchase be dated as of the same date as the judgment of the trial court to be entered in conformity with the mandate, to protect rights of redemption. p. 212.
From Lake Superior Court; Lawrence Becker, Judge.
Action by William J. Collins and others against Asher Siegel and others to foreclose a real estate mortgage. From a judgment directing sale to Gust Christ, one of the bidders at the foreclosure sale, under mandate of the Supreme Court entered in a former appeal, plaintiffs appealed. Reversed.
Willard B. Van Horne, Willard B. Van Horne, Jr., and Winslow Van Horne, for appellants.
Allen P. Twyman, and Bomberger, Peters Morthland, for appellees.
This is a second appeal of this case. The former opinion is entitled, Christ v. Collins et al. (1937), 211 Ind. 474, 6 N.E.2d 698.
The history of the litigation may be briefly summarized as follows: The present appellants obtained a judgment and a decree of foreclosure on a real estate mortgage against certain persons not parties to this appeal. A sheriff's sale was duly advertised, and the appellants and appellee Christ were the only bidders. Christ questioned appellants' right to bid, and the sheriff refused to deliver a certificate of purchase to either. Appellants thereupon applied to the court below for an order directing the sheriff to recognize their bid and to issue them a certificate. A hearing was had and the court found for the present appellants. An appeal was prosecuted to this court, which reversed the cause and issued its mandate that the trial court set aside the judgment and enter judgment for appellant (Christ). Thereupon, the court below did set aside the judgment and did enter judgment for Christ, with directions to the sheriff to issue him a certificate of purchase, in accordance with the terms of his bid, "said certificate to bear date of said sale." In compliance with this order the sheriff did, on or after July 2, 1937, issue to Christ a certificate of purchase dated May 17, 1935, that being the date for which the sale had been advertised. Immediately thereafter a sheriff's deed was likewise issued and delivered to Christ.
The appellants, claiming the right to redeem from the sale to Christ, and feeling themselves aggrieved by that part of the lower court's order which directed that said certificate of purchase should bear the date of the sale, brought this proceeding to modify the judgment, so as to afford them an opportunity to exercise their redemption privileges. The motion to modify was denied, and this appeal follows.
The judgment of this court on the former appeal is, of course, res judicata as to the parties of record thereto, with respect to all matters in issue and determined therein. The 1, 2. vital part of that judgment is the mandate appended to the opinion, although we may look to the body of the opinion, if necessary, to ascertain the full intent, purpose and scope of the relief granted.
The sole question presented by this appeal is this: Was the trial court warranted in directing that the certificate to be issued to Christ should "bear date of said sale," in view 3-6. of the directions given it by this court. "It is the duty of the lower court, on the remand of the cause, to comply with the mandate of the appellate court and to obey the directions therein, without variation." 4 C.J. 1221; 5 C.J.S. 1512. The former mandate of this court appears clear and unambiguous. It simply directed the court below to set aside the judgment appealed from and to enter judgment for Christ. It did not authorize any nunc pro tunc entry; it did not direct that Christ should be issued a past-dated certificate. When an officer or a tribunal does a thing which he is directed to do, the record of the act done should bear the date of compliance, in the absence of specific directions otherwise. There is a presumption in law that an instrument was executed on the date that it bears. Bouvier's Law Dictionary (date). We think the action of the court below in directing a certificate to be issued to "bear date of said sale," was beyond the scope of the mandate of this court.
The rule which we have applied is not only sound, but it is in aid of the substantial rights of all the parties to this appeal. The right of redemption is a valuable one, recognized by 7. statute and protected by principles of equity. It is not claimed that appellants were not entitled to redeem, but it is asserted that the period of redemption has expired by limitation. When, under the order of the court below, a past-dated certificate was issued to Christ, appellants' right of redemption was thereby completely cut off and denied them.
This is not a case where this court must concern itself with determining upon whom the loss should fall. Nothing is shown by the record to disclose that it would be inequitable to 8. permit appellants to redeem from this sale, or that they should be estopped from doing so. If they do redeem, Christ will receive reimbursement for all moneys expended by him in the purchase of the real estate, together with interest thereon. Christ was charged with knowledge of the fact that this might occur when he bid.
To support the judgment of the court below, the appellee Christ calls attention to the fact that the appellee Collins on the former appeal, filed a petition for rehearing therein, in 9. which he assigned that the opinion of this court was erroneous because it did not state the redemption rights of the parties, and he further asserts that said proposition was fully briefed. This court denied the petition for a rehearing, and the appellee herein now asserts that this amounted to a determination by this court that the present appellant Collins had no right of redemption. We do not think this is a logical conclusion or a correct assumption. The petition for a rehearing may have been denied on many grounds and for many reasons other than those assumed by the appellee. If this court had intended to decide that there was no right of redemption, it would have so expressed itself in the original opinion, or in a supplemental opinion on rehearing.
Appellee contends that it was the positive duty of the sheriff, under § 2-3909 Burns 1933, § 622 Baldwin's 1934, to issue to Christ a certificate of purchase bearing date of May 17, 10. 1935, when the sale was held; that the court's order, made after the former appeal, followed the statute, and there was consequently no error in that regard. It is true that a sheriff's certificate of purchase should bear date of the sale, but in this case there was no sale on May 17, 1935. We have before us the record in the first appeal and we find therein the stipulated evidence on the hearing, which resulted in the judgment from which that appeal was prosecuted. It discloses that the sheriff was a party to that proceeding and that he "was unable to determine which of said bids was a bona fide bid and the best bid offered, and refused to issue a certificate of purchase under such sale to either of such bidders." It must be concluded that there was no sale at the time referred to, for the reason that there was no acceptance of a bid. If there was no sale on May 17, 1935, it was quite beyond the power of the trial court on July 2, 1937, to adjudicate that a certificate of purchase bearing the former date should be issued by the sheriff.
It is also asserted that this appeal ought to be dismissed because the assignment of errors is attached to the back of the record instead of the front. The first page of the 11. record is an index of its contents. This clearly discloses where the assignment of errors may be found. Rule 5 of this court, adopted June 21, 1937, does require the assignment of errors to be attached to the "front of the transcript, following the index." This rule was made for the convenience of this court, to facilitate the consideration of cases. The record in this appeal is not voluminous, and we have not been seriously burdened by this technical failure to comply with the rule. The appeal will not be dismissed.
The judgment is reversed, with instructions to the trial court to set aside its judgment herein appealed from, and its judgment in this cause entered on January 28, 1936, and to enter 12. judgment for the appellee Gust Christ. The trial court is further directed to include in the judgment to be entered a direction to the sheriff of Lake County, Indiana, to issue to said Gust Christ a certificate of purchase in accordance with the terms of his bid therefor, said certificate to bear the same date as the judgment to be entered by Lake Superior Court, Room 2, in conformity herewith.