80 Ind. 107 | Ind. | 1881
— Appellant seeks to review a judgment rendered against him at the suit of the appellees. The ground upon which the review is sought is, that the complaint upon which the judgment was rendered is insufficient. The facts stated in that complaint may be thus summarized: Appellees recovered several judgments against one Harvey Bond before a justice of the peace; executions were thereon issued and returned no property found ; transcripts were filed and docketed in the office of the clerk; after these transcripts had been filed and docketed, Harvey Bond sold the real estate, which is the real subject of this controversy, to the appellant. Shortly after the sale to appellant, but before execution had been issued by the clerk, Bond died, leaving a widow and children. The prayer of the complaint, of which we have given a summary, is, that the judgments may be declared liens upon the real estate bought by appellant of Bond, that an execution issue, and that the real estate be sold to satisfy the judgments of the appellees.
The specific objections to the complaint are thus stated in the bill, or complaint, filed in the present case: “ 1st. That the said complaint so filed by said Gilbert and Baker against this plaintiff and said other defendants, does not state facts, sufficient to constitute a cause of action against this plaintiff. 2d. That said complaint was n ot verified, nor any affidavit filed therewith at any time by the said Gilbert and Baker, setting forth that said judgments were unpaid, or stating the amount
The action in which the judgment was rendered, which is here sought to be reviewed, is not founded upon article 35 of the code of 1852. It was not a proceeding to enforce a judgment against the real estate of a deceased judgment defendant. The land was not owned by Bond, the judgment debtor, at the time of his death, but was owned by this appellant. The heirs of Bond had no actual interest in the action to enforce the lien of the appellees’ j udgments; but4 as they were the heirs of the deceased judgment debtor, it was not improperio make them parties. There are no facts stated in the complaint here attacked by the bill of review, showing that the proceeding was brought under the statute referred to, nor were the proceedings in accordance with its provisions. Neither does the complaint profess to make a case within the provisions of article 35. As the proceeding does not rest upon, or come under, the provisions of that article of the code, its sufficiency is not to be measured or determined by them.
The action by the appellees against the appellant and the heirs of Bond was not brought under the provisions of section 406 of the code. That section provides for the issuing of an execution upon motion where the execution defendant is in life, and not to cases where the judgment debtor dies after the entry of judgment. An execution against the lands of a deceased person can not issue upon mere notice and motion. Faulkner v. Larrabee, 76 Ind. 154. Nor can an execution be issued in the summary proceeding provided for by section 406, to enforce the lien of a judgment against lands conveyed to a third person, in cases where the grantor and judgment debtor is dead.
The appellees’ judgments were liens upon the lands conveyed to appellant by the judgment defendant Bond, and
It is maintained that the complaint in the action against appellant and the heirs of his grantor, is bad, for the reason that it does not allege that the deceased grantor did not leave other
If it were conceded that the complaint of the appellees in the action brought by them against the appellant and the heirs of this grantor, does not show that there was not property of the decedent’s estate, which might have been subjected to the payment of the judgments, the attack here made can not prevail. The appellees certainly had a right to executions upon their judgments. The fact that there may have been property will not defeat their right to enforce their judgments, and, in order to accomplish this, it was necessary to obtain the executions sought. White v. Ethin, 6 Blackf. 123.
It is a principle of equity that where a judgment debtor sells real estate, the purchaser may compel the judgment creditor to sell the property owned by the debtor before resorting to that sold by him and held by his vendee. This principle we recognize, but we do not approve the application made of it by the appellant. It is not necessary for the judgment plaintiff to hunt up property in order to save the purchaser. His judgment is a lien enforceable by levy and sale, and the purchaser must show some reason why the land which he bought, subject to the lien of the judgment and the rights of its owner, shall not be subjected in due course of law to the payment of the judgment. Prima facie, the judgment creditor has a right to enforce his lien according to law. If the subsequent purchaser desires the interference of equity, he must affirmatively show some grounds entitling him to it. He can not ask it as a mere matter of course. The judgment creditor has the legal
The fact that appellees’ complaint in the action instituted by them was not verified, does not entitle appellant to maintain a bill of review. Want of verification is a defect which can not be reached by demurrer. Buchanan v. The Logansport, etc., R. W. Co., 71 Ind. 265; Turner v. Cook, 36 Ind. 129. If such a defect is not ground for a demurrer, it certainly can not be cause for reviewing a judgment. We do not mean to decide that it was necessary for appellees to verify their complaint, for "we deem it unnecessary to make any decision upon that question.
We need not enquire whether appellees’ complaint entitled them to all the relief prayed, for, if sufficient facts were properly pleaded entitling them to any substantial relief, this bill of review can not be maintained. A complaint good in part, and entitling the plaintiff to judicial assistance, will repel an attack by demurrer. Teal v. Spangler, 72 Ind. 380; Bayless v. Glenn, 72 Ind. 5. A bill of review is not more potent than a demurrer.
Judgment affirmed.