87 Ind. 62 | Ind. | 1882
This action was brought by the appellees against the appellant and others, for the purpose of enjoining John M. Bailey, sheriff of Fountain county, from executing’ a deed as such sheriff, to the appellant Carnahan.
The complaint states, that, on the 15th day of May, 1876,. Andrew P. Potts recovered a judgment in the Fountain Circuit Court against Franklin Yerkes for $302.85, and costs, on which said Yerkes paid $88; that said Potts subsequently assigned said judgment to William C. B. Sewell; that, on the-26th day of September, 1876, Johnson Cook recovered in said court a’judgment for $579.35 against said Franklin Yerkes- and the appellees, Allen Yerkes and Barclay Yerkes; that, on the 26th of September, 1877, the appellant, as guardian, recovered a judgment in the same court against Franklin Yerkes- and others for $674; on the 15th day of January, 1878, the
The appellant John M. Carnahan, who alone appeals, demurred to the complaint, for want of facts. The demurrer was overruled.
The appellees demurred to the second paragraph of the answer. The demurrer was sustained.
The cause was submitted to the court for trial. At the request of the parties, the court found the facts specially, and stated its conclusions of law. The appellant excepted to the conclusions of law. He also moved for a new trial, which motion was overruled. A decree, perpetually enjoining the sheriff' from delivering a deed of said property to the appellant, was rendered in favor of the appellees. The rulings of the court upon the demurrers, the motion for a new trial, and the conclusions of law stated by the court, are brought in question by the errors assigned.
We think the court did not err in overruling the demurrer to the complaint. If no money was paid on the day of sale, no memorandum made in writing by the sheriff at the time, and the execution on the appellant’s judgment was returned by the sheriff unsatisfied, with the statement that the sale was void, for the reason that the appellant had failed and refused to pay the sum bid by him for the property, the ap
The appellant, at the time he bid off the property, had constructive notice, at least, of the superior lien of the Cook judgment. He could not insist, therefore, that the sheriff should accept as payment of the sum bid by him for the property, or as payment of any part of said sum, a credit upon the execution issued upon his judgment, until the judgment constituting a prior lien had been paid. He could only perfect the sale and entitle himself to a deed by paying in cash the sum
The court finds, as part of the facts in the case, that the appellant paid to the sheriff on his bid the sum of $302.83, to be applied in payment of the Potts judgment, and the costs accrued thereon, which judgment was the first lien on said property, and prior to that of the Cook judgment on which the appellees purchased, and that the sum so paid to the sheriff had been by him applied to the payment of.the Potts judgment. The court also states, as a conclusion of law, that the payment so made discharged and extinguished said judgment.
The payment oi the Potts judgment operated for the benefit of the appellees. It removed a lien which was prior to the Cook judgment, under which they purchased, and, had it not been so removed, they would have been compelled to pay it. Under the circumstances, equity would, perhaps, keep this judgment and its lien on the land alive for the benefit and security of the appellant. But the pleadings and record are not in such a condition as that the appellees can in this action be compelled to pay the sum so advanced by the appellant for their benefit, as the condition upon which the deed to the appellant for said land should be enjoined. It would be granting to the appellant relief which he has not asked, and which the facts set up in the answer would not justify. Had the appellant disclaimed any right to the land by virtue of the sale made by the sheriff to him, and asked that the money advanced by him for the
It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellant.