18 Ind. 27 | Ind. | 1862
This was a suit by John C. Bansemer and others, the heirs-at-law of Loyal Fairman, deceased, against Daniel Mace and others, to set aside a sale, made under a mortgage, on the West half of northwest quarter of sec. 35, in township 23, north of range 4 west, in Tippecanoe county. The mortgage bears date of May the 3, 1839, and was executed by Fairman, while in life, to Nathan B. Palmer, superintendent of the loan office, to secure the payment of 400 dollars to the college fund, at five years, with nine per cent, interest, payable yearly in advance. It is averred in the complaint, that, on the 23d of January, 1858, the principal and interest due on the mortgage amounted to 589x9¡j°(j ‘dollars, and that on said day the real estate so mortgaged, was offered for sale, ostensibly by John W. Dodd as Auditor, and Aquilla Jones as Treasurer, of State, and sold to Daniel Mace and God,love 0. Behm, for 410 dollars. This sale is alleged to be irregular and void. 1. Because the advertisement under which it was made was insufficient. 2. The Auditor and Treasurer did not attend the sale, either in person or by deputy. 3. The mortgaged premises were not offered for sale in parcels, though they were of the value of 3,000 dollars, and capable of being divided. The issues were submitted to the
A transcript of the record of the sale, from the Auditor’s office, authenticated hy the Auditor of State, was given in evidence. By that transcript it appeared that the sale of the land was duly advertised in the Indiana State' Sentinel, a newspaper of general circulation published at Indianapolis, for sixty days prior to the 23d of January, 1858, the day of sale. But the advertisement itself, as printed in said newspaper, was also given in evidence, which, so far as it relates to the sale in question, reads thus:
“ Sale of Lands Mortgaged to Trust Funds,
“ The following described lands will, on Saturday, the 23d day of January next, between the hours of 9 o’clock A. M., and 4 o’clock P. M., at the Court House door, in the city of Indianapolis, be offered for sale to the highest bidder, the same having been mortgaged to the State of Indiana, to secure the payment of loans made on account of several funds therein named. Ho bid will be taken for a less sum than the amount chargable.” The advertisement then proceeds to describe various tracts of land, and among them, the land in controversy is described as follows: “Ho. 306.—The w hf of the n w qr of sec 35, in t 23, n of r 4, w, containing eighty acres in Tippecanoe county; mortgaged by Loyal Fairman. Principal, interest, damages and costs, 554x%% dollars.” This advertisement is said to be objectionable because it has no date; because it does not sufficiently describe the property-to be sold; because it states the sum due to be 554 dollars and 30 cents, when the amount actually due was 589T3/0-; and because the fund, on account of which the land was to be sold, is not named. Hone of these objections are available; The
The third alleged irregularity in the sale remains to be considered. Were the State officers, who conducted the sale, bound to offer the mortgaged lands in parcels ? The statute provides that “ the Auditor shall make sale of so much of the mortgaged premises, to the highest bidder, for cash, as will
The judgment is .affirmed, with costs.