130 Ind. 305 | Ind. | 1892
The appellant alleges in his complaint that on the 15th day of April, 1876, Milton Hendrix recovered a judgment against the appellee Lucas for nine hundred and seventeen dollars, in the Huntington Circuit Court; that Lucas was then the owner of three parcels of land situate in Huntington county, and described in the complaint; that one of the parcels was of the value of four hundred dollars; that Lucas sold it to Henry Kemp; that the other parcel was of the value of twelve hundred dollars; that Lucas sold to the appellee Morgan the second of the parcels of' land for one thousand dollars; that the third parcel of land was of the value of fifteen hundred dollars, and was sold to-John Edgar; that the judgment in favor of Hendrix was a lien upon all of the several parcels of land. The complaint further alleges that, after Morgan purchased of Lucas the second parcel of land, Lucas became the owner of another parcel that this last or fourth parcel was purchased from Lucas by the appellant; that the appellant paid the full value of the-land, and received a warranty deed therefor; that at the time of his purchase of the fourth parcel of land from Lucas the appellant had no actual notice or knowledge of the existence of the Hendrix judgment; that Lucas was, at the time of the appellant’s purchase, the owner of personal property of the value of two thousand dollars, and real property of the value of two thousand dollars; that all of this property was situated in Huntington county and subject to execution. It is also alleged in the complaint that Lucas became the owner of another parcel of land before the sale to the appellant; that the land of which he became the owner was sold by Lucas since the appellant became the owner, of the fourth parcel of land; that on the 7th day of October, 1880, John Morgan paid the Hendrix judgment; that “Morgan attempted to take an assignment of the judgment, which attempt was made in the order book by one L. P. Milligan under and by virtue of a pretended power of attorney, which power of attorney was never recorded; ” that on the 3d day
The position first assumed by counsel is that the assignment of the judgment by Milligan, the attorney in fact of the original judgment creditor, was ineffective because the power of attorney was not recorded. There is no strength in this position. If, as the complaint tacitly concedes, Mil-ligan was the attorney in fact of the judgment creditor, the assignment is not ineffective merely because the instrument investing the attorney with authority was not recorded. The statute requiring a power of attorney to be recorded does not apply to a power to assign judgments.
A more serious question than that disposed of arises on the contention that Morgan paid the judgment. The complaint avers that he did pay it, but it also shows that he took an assignment of it. We think it quite clear that if Morgan had extinguished the judgment by payment, he could not use it to the injury of the appellant, as the latter had a right in equity to have the other property of the judgment debtor first subjected to the payment of the judgment lien. As Morgan was not primarily liable for the judgment, and as he did take an assignment of the judgment, the conclusion required by the authorities is that he did not extinguish
The authorities to which we have referred conclusively answer the appellant’s contention that, as Morgan was the owner of the fee, the lien of the judgment was merged when he acquired it by assignment. It is a settled principle of equity jurisprudence that the technical doctrine of merger can not be applied against a party not liable for a debt, who pays it off to protect property acquired from the person primarily liable. The intention and the situation of Morgan prevented a complete and absolute merger, and kept the lien of the judgment alive in his favor for equitable use. 2 Pomeroy Equity, sections 791, 792, 797.
The remaining question upon this branch of the case would be one of much difficulty if it were not settled by a former decision. Granting that there was no complete extinguishment of the judgment either by payment or by merger, there yet remains the question, can Morgan so use the judgment lien as to subject the land of the appellant to sale to satisfy it ? As the
We come now to the question, what is the equity of the situation ? If it is with Morgan, the appellant must fail; if against him, the legal rule must, if we adhere to principle,
The rule that a purchaser of land may, by a timely and appropriate application to a court of equity, have lands remaining in the debtor first sold, and lands sold in the inverse order of their sale by the debtor, is a familiar and well established one. Richey v. Merritt, 108 Ind. 347; Ritter v. Cost, 99 Ind. 80; Caley v. Morgan, 114 Ind. 350; 12 Am. and Eng. Encyc. of Law, 216, note 1. But the case of Caley v. Morgan, supra, while fully recognizing the principle stated by us, adjudged that it is not applicable to such a case as this, for the reason that the owner of the land did not ask the assistance of a court of equity before the sale. The decision in that case, although not directly conclusive, because
There is in the present case one important and material fact not in the case of Caley v. Morgan, supra. That fact is this : Morgan caused the land to be exposed to sale without having the first sale set aside, or the entry of satisfaction made by him vacated. That fact was not considered in the ■case referred to, so that there is no judgment upon it. As the record exhibited the facts the judgment was satisfied, the first sale effective, and Morgan’s rights under that sale complete. It is no doubt true that the appellant was charged with such notice as the record imparted, and that his averment that he had no actual notice of the judgment lien is unavailing. Taylor v. Morgan, 86 Ind. 295. But he had a right to rely upon the whole record, and part of the record informed him that the judgment was satisfied, and that part ■of the record was made by Morgan himself. If the appel-. lant is bound by the record, so, also, is Morgan. In our judgment Morgan had no right to disregard the first sale at his own pleasure, and make a second one after having the judgment entered satisfied. If a stranger had bought the property, we think it quite clear that Morgan could not, by ’his own act, have treated the sale as a nullity. The sale was complete, the receipt of Morgan to the sheriff for the price ■of the property was as effective as payment in actual money would have been, for it is settled that where a judgment creditor buys at his own sale his entry of satisfaction of the judg
• Morgan was the purchaser at his own sale, and even in ordinary cases would be held chargeable with notice of all irregularities, for he does not occupy the position of a bona fide purchaser. Raub v. Heath, 8 Blackf. 575; Harrison v. Doe, 2 Blackf. 1; Keen v. Preston, 24 Ind. 395; Hamilton v. Burch, 28 Ind. 233; Piel v. Brayer, 30 Ind. 332; Bole v. Newberger, 81 Ind. 274; Carnahan v. Yerkes, 87 Ind. 62; Shirk v. Thomas, 121 Ind. 147, and authorities cited; Warren v. Hull, 123 Ind. 126; Johnson v. Hess, 126 Ind. 298 (311). If a third person had bought the land at the first sale, and had paid his bid, the receipt of the amount paid by such purchaser by the execution creditor would unquestionably have extinguished the judgment. Klippel v. Shields, 90 Ind. 81; Shields v. Moore, 84 Ind. 440; Moon v. Jennings, 119 Ind. 130; Kreider v. Isenbice, 123 Ind. 10.
The appellee directs our attention to several authorities which we have examined, but we find nothing in them which opposes the conclusion we have stated. The case of Harrison v. Doe, supra, is adverse to the appellees, for in that case it was held that the sale was void as to the execution creditor purchasing at his own sale, but it is tacitly asserted that the rule would have been different had the land been bid off by a bona fide purchaser at the sheriff’s sale. The decision in Morss v. Doe, 2 Ind. 65, is that a sale where there is no appraisement is void, and the decision in Fletcher v. Holmes, 25 Ind. 458, is to the same effect; In Davis v. Campbell, 12 Ind. 192, it was held that a sheriff’s sale could not be successfully attacked in a collateral proceeding upon
We agree fully with the statement of appellee’s counsel that there are cases where a levy may be abandoned, but we can not agree that the rule that a levy may be abandoned controls such a case as this, where the record affirmatively shows that the first sale operated prima facie, at least, to satisfy the judgment. There is here much more than an abandonment of a levy and much more than the abandonment of a void sale, for the sale was, so far as the record shows, so effective as to induce the judgment creditor to satisfy the judgment of record. Presumptively, at least, the sale was not void or even voidable. If it was not void the appellees had no right at their sole pleasure and mere will to treat it as of no effect. They can not occupy inconsistent positions at their own volition. The argument, and it is a sound one, that a merely irregular sale can not be collaterally attacked, strikes strongly at the very foundation of the appellee’s position. If an irregular sale can not be collaterally assailed, certainly the judgment creditor can not at his mere will or pleasure repudiate it and again expose the property to sale. He must first get rid of his own sale and his own entry of satisfaction. The appellee Morgan had a right to have the sale vacated if it was illegal or irregular. Clayton v. Glover, 3 Jones Eq. 371; Galbreath v. Drought, 29 Kan. 711. But having made the sale, purchased the property, entered the judgment satisfied of record, he has no right to ask that it shall be presumed, as against a bona fide purchaser from the judgment debtor, that the sale was illegal. It is settled that prima facie a levy is a satisfaction of the judgment to the extent of the value of the property levied upon. McCabe v. Goodwine, 65 Ind. 288, and authorities cited; McIver v. Ballard, 96 Ind. 76; Harmon v. State, ex rel., 82 Ind. 197. There is much more reason for applying the
We adjudge, without going further in this case, for there is no necessity for doing so, that the complaint shows a prima facie satisfaction of the judgment upon which the " land was sold, and that the complaint is at least sufficient to drive the appellees to answer.
Judgment reversed.