8 Ind. 334 | Ind. | 1856
Provinger brought an action in the Huntington Common Pleas against Clark and Brown, alleging that he held a judgment against one Beard, which was a lien on certain real estate of said Beard; that Clark also had a judgment against Beard which was a prior lien; that Clark sued out an execution on his judgment and placed it in the hands of Brown, the sheriff, who by fraud and collusion with Clark, and without the knowledge of, the plaintiff, sold the said real estate without advertising it according to law, and before the hour of ten o’clock on the day of sale, and that Clark became the purchaser for an amount less than his own judgment; that the plaintiff and others were ready to bill and would have given more for the land than the lien of Clark. Prayer, that the sale he set aside as fradulent.
The complaint was demuri’ed to, assigning for causes, that the Court of Common Pleas had not jurisdiction of the subject-matter, and a misjoinder of parties. The demurrer was overruled. Answers were filed putting in issue the matters stated in the complaint. Trial by the Court, finding for the plaintiff, and judgment that the sale he set aside.
This judgment cannot be sustained. The act organizing the Court of Common Pleas confers jurisdiction, in civil eases, with certain exceptions, one of which is, “where the title to real estate shall be in issue.” 2 P. S. p. 18, s. 11. In no case could the title to real estate be more directly in issue than in this. The judgment, if valid, divested the title of Clark under his purchase, and transferred it to Beard, the defendant in execution. See Dixon v. Hill, at the present term
Numerous other questions are discussed, but this finally disposes of the whole case and they need not be noticed.
The judgment is reversed with costs.
Ante, 147.