105 Ind. 563 | Ind. | 1886
In this case, the separate and' several demurrers of each of the appellees to the complaint of appellants, the plaintiffs below, upon the ground that it did not state facts sufficient to constitute a cause of action, were sustained by the circuit court. Appellants excepted to this ruling, and have assigned it here as the only error, of which they complain.
Appellants, Gardner S. Chapin and James J. Gore, partners under the firm name of Chapin & Gore, alleged in their complaint that they were seized in fee simple of lot No. 47, in the original plat of the town of Knox, in Starke county, except the south ten feet thereof, and had been in possession thereof for four years last past, claiming title thereto as owners; that they derived title by virtue of a sheriff’s deed executed October 28th, 1876, by the then sheriff of Starkecounty, and recorded in the proper record of deeds in the recorder’s office of Starke county; that such deed was executed pursuant to a sheriff’s sale of such lot, on October 23d, 1875, by virtue of two executions directed to such
Appellants further alleged that there was entered and docketed in the Starke Circuit Court, on the 9th day of October, 1873, a pretended judgment by confession for $120.34, rendered by a justice of the peace of Starke county, on October 3d, 1873, in favor of the appellees McCauley & Co., and against William W. Garver, whereon one Joseph A. Garver was replevin bail; that such judgment, if valid, became a lien on such lot 47, on. and after October 9th, 1873; that such judgment was void, because rendered without the consent of the plaintiffs therein, and because no affidavit of the defendant, Garver, was filed with such justice, that the claim was just and owing, and such confession was not made to defraud creditors; that, on April 3d, 1874, the justice of the peace issued an execution on such judgment to a constable of Starke county, to whom the defendant, Garver, on July 29th, 1874, paid the sum of $40, and, on September 1st, 1874, the further sum of $50, to be applied on such execution, and thereafter the constable returned such execution satisfied to the aggregate amount of $90; that prior to the filing of their complaint, appellants were informed by William W. Garver that he had paid the full amount of such judgment to McCauley & Co. and had receipts to show it, but, on April 5th, 1882, he informed appellants that all, except two of such receipts had been burned up, and he was unwilling to swear positively to the fact of paying the balance, which was the first information appellants had of this fact, but they believed and charged the truth to be that such judgment had been fully paid.
Appellants further said, that, on August 16th, 1880, there
It is insisted on behalf of the appellants, in the elaborate brief of their learned counsel, that the facts stated in their complaint, the substance of which we have given almost in their own language, show that the sheriff’s sale of the lot therein described to appellee John D. McLaren was illegal, and ought to be set aside, for the following reasons, namely:
“1. Because the judgment, upon which it was founded, was void, because rendered upon confession, without the necessary affidavit, as required by law.
“2. Because it was rendered without the knowledge or consent of McCauley & Co., in whose favor it was confessed.
“3. Because, prior to the issuing of the execution upon which the sale was made, the judgment had been fully paid and satisfied.”
We will consider and pass upon these several reasons for setting aside the sheriff’s sale of the lot to McLaren, or these several objections to the legality and validity of such sale, in their enumerated order.
1. In section 1490, R. S. 1881, in force since May 6th, 1853, in relation to a judgment by confession before a justice of the peace, it is provided as follows:
“ Judgments may be rendered by confession, and no appeal shall lie therefrom; but the same may be collaterally impeached for fraud by creditors of the judgment debtor; and such judgment shall be void as to such creditors, unless at the time of the rendition thereof the defendant makes affidavit that he justly owes the debt.”
In construing the provisions of this section of the statute, we have uniformly held that judgments by confession, before
2. Appellants do not allege in their complaint that the judgment by confession was rendered “ without the knowledge or consent of McCauley & Co.” The allegation is that such judgment was rendered “ without the consent” of Mc-Cauley & Co.; and this allegation is practically withdrawn and nullified by the subsequent averment in the complaint, “ that said McLaren acted as the attorney of said McCauley & Co., in taking the confession of judgment,” etc. Under this latter averment, it could hardly be said that McLaren did not know of and consent to the rendition of such judgment by confession. The knowledge and consent of McLaren, concerning the rendition of such judgment, were equivalent to the knowledge and consent of his clients, McCauley & Co. In Haggerty v. Juday, 58 Ind. 154, it was held that a judgment by confession, entered without the consent or knowledge of the creditor, in whose favor it is rendered, is wholly invalid, unless ratified by such creditor. In the case in hand, we are of opinion that appellant’s complaint clearly shows that the judgment by confession was rendered with the knowl
3. The third' and last reason assigned by appellants’ counsel for setting aside the sheriff’s sale to McLaren as illegal and invalid is, that prior to the issuing of the execution upon which the sale was made, the judgment had been fully paid and satisfied. It is not claimed that the alleged payment or satisfaction of such judgment was or is shown by the record thereof. It may be conceded, we think, that where an execution is issued upon a judgment which has in fact been, fully paid off and satisfied, if the sheriff, by virtue of such execution, levy upon and sell real estate to any person having actual or constructive notice of such facts, the sale would be an absolute nullity. It was so held by this court in State, ex rel., v. Salyers, 19 Ind. 432, where it was said: “ Indeed,, the weight of authority seems to be, that a sale on a satisfied judgment will vest no title, even in an innocent purchaser.” To the same effect, substantially, are the following cases: Splahn v. Gillespie, 48 Ind. 397; State, ex rel., v. Prime, 54 Ind 450; Shields v. Moore, 84 Ind. 440; Merritt v. Richey, 97 Ind. 236.
If it be true, as appellants charge, and appellees admit, as this case is presented here, that prior to the issuing of the execution, upon which the sale of the lot in controversy was-made to McLaren, the attorney of McCauley & Co., the execution plaintiffs, their judgment whereon such execution was-issued had been fully paid, then it must be held under our previous decisions, that such sale of thé lot was an absolute nullity, and passed no title whatever to John D. McLaren or to his assignee, Catharine Larrew. It is averred in the com
The judgment is reversed, with costs, and the cause is remanded, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.