118 Ind. 46 | Ind. | 1889
This is a proceeding for a temporary restraining order and a perpetual injunction. Appellee filed his complaint against the appellant, alleging that he was the owner of the following described real estate situate in Clinton county, Indiana, to wit: Thirteen acres off the south end of the east half of the northwest quarter of section twenty-eight, in
Appellant demurred to the complaint for the reason that the same does not state facts sufficient to constitute a cause of action. The court overruled the demurrer, to which ruling appellant excepted. Appellant then filed an answer in three paragraphs. Afterwards, appellant filed a paragraph of answer designated an amended third paragraph. Appellee filed a demurrer to the amended third paragraph of answer, and pending the demurrer appellant withdrew the first and second paragraphs of answer, leaving the third amended paragraph as the only answer in the ease. The court sustained the demurrer to the amended third paragraph, to which ruling of the court appellant excepted.
The amended third paragraph of answer alleges that, on August 30th, 1878, one Isaac S. Earhart obtained a judgment against James Clendening, Sr., before a justice of the peace of Clinton county, for $66.48; that the said Earhart caused a transcript of said judgment to be filed in the office of the clerk of the Clinton Circuit Court and an execution to be issued on said judgment to the sheriff of said county; that at
The rulings of the court on the demurrer to the complaint and answer are assigned as error. The complaint is sufficient, and the demurrer was properly overruled. Thatcher v. Humble, 67 Ind. 444.
The answer, if good, must be so upon the theory on which it is pleaded, which is that the wife of the defendant derived some title to the real estate described in the complaint, through the sheriff’s sale to Earhart and the conveyance by Earhart to her, which entitled her to possession, and that plaintiff derived no title to the real estate by virtue of the conveyance of James Clendening and wife to him. The denial of plaintiff’s title is a mere denial that plaintiff took any title to the land by the conveyance, and can not be treated as a general denial of the plaintiff’s title so as to constitute a good answer. To treat it so would be entirely inconsistent with the theory upon which the paragraph is pleaded.
The sheriff levied upon, sold and conveyed another and different tract of land; this conveyance passed no title whatever to the land described in the complaint, and gave no right of entry to the purchaser, and the purchaser deriving no title, he could convey none to the wife of the defendant; hence she had no authority to enter upon the land described in the complaint, and such entry would be without right and unlawful. 2 Freeman Ex. (2d ed.), section 281; Tiedeman Real Prop., section 696; Rorer Judi. Sales (2d ed.), section 99 ; Frazier
The transfer of the land by James Clendening, Sr., and wife to plaintiff, with notice on the part of the plaintiff of the j udgment lien and of its having been satisfied by a mistake and sale of property not owned by the judgment defendant, would not affect the right of the owner of the judgment to have the satisfaction set aside and the judgment enforced against the judgment defendant by sale of the land in question. From the allegations in this paragraph of answer it does not appear but that the judgment defendant owned the real estate described in the sheriff’s levy, notice, certificate and deed, and a good title may have passed to Earhart by his purchase at sheriff’s sale and he have conveyed the good title to such tract to the wife of defendant. If, as alleged in the answer, James Clendening, Sr., conveyed to his wife the land in question for the purpose of defrauding his creditors, and he and his wife afterwards conveyed the same to the plaintiff, as alleged in the answer, it could not be questioned by the defendant by an answer in these proceedings. It does not appear from the answer that the defendant was at any time a creditor of James Clendening, Sr., and the fraud, if any fraud was committed, in no way affected him; he was a trespasser upon the laud.
The paragraph of answer was clearly bad, and the court did not err in sustaining the demurrer.
Judgment affirmed, with costs.