22 Ind. 15 | Ind. | 1864
Daniel, Benjaynin, and John Ashby, who were
The following are the facts: In 1839, one James Ashby became the owner, in fee, of the land in dispute, and, as such, continued until 1846, when he died, leaving the plaintiffs as his children and heirs. On March 25th, 1839, Hiram, and Samuel Henman, a firm doing business at Petersburgh, Indiana, executed to Todd $ Praigg, of Louisville, Kentucky, three promissory notes for the aggregate amount of 519 dollars. Upon these notes, Todd $ Praigg, on the 24th of February, 1841, recovered a judgment in the Pike Circuit Court, against the Henmans, for 487 dollars; and James Ashby, on the 2d of March, 1841, entered himself as replevin bail on that judgment, for the stay of execution for twelve months. In August, 1847, a writ of scire facias was regularly issued upon said judgment and replevin bail, against the plaintiffs, the then defendants, as heirs, &e., to revive the judgment, and to have execution upon it, and the recognizance of replevin bail against the property which had descended to them from their father, James Ashby. And said writ having been duly served upon them, they were, at the August term, 1847, of the same Circuit Court, defaulted, and a judgment of revivor and an order for execution was entered against them in the usual form. The plaintiffs—the then defendants—at the time of these proceedings, were minors; but the record fails to show that any guardian, to appear for them, was, appointed by the Court. An execution, pursuant to said order, was issued in September, 1847, and by virtue of it, the sheriff levied on the lands in controversy, and sold them to John Praigg, who, in pursuance of the sale, received a . . . deed. The record is silent as to whether the lands were, prior to the sale, appraised in the mode prescribed by the statute.
The evidence is upon the record, and, under the assignments of error, the only question to settle is, whether the title derived from the Sheriff’s sale defeats the plaintiff’s-claim to the lands? The Circuit judge must have considered that sale a nullity; but the appellees have not favored us with a brief, and hence, we are not advised as to the ground upon which they propose to sustain the finding of the Court. The appellant, however, discusses two points: 1st. "Was the judgment on scire facias void for want of a guardian, ad litem? 2d. Should it appear in the record that the lands, prior to the sheriff’s sale, were duly appraised?
The judgment,—the record being silent as to the appointment of such guardian,—would, in a direct proceeding in error, have been held erroneous; but here the Circuit Court bad jurisdiction of .the subject matter, and of the persons of the defendants. The rule is well settled that the judgment of a Court, having such jurisdiction, “however irregular, is not void, and not impeachable collaterally.” Homer v. Doe, 1 Indiana 130 and authorities there cited.
Xor was the sale void for want of appraisement, because it does not appear that there was no appraisement. On this point the record is perfectly silent. “ If an appraisement of the land was required to give validity to the sheriff’s sale, proof that it was appraised was not incumbent on the defendant.” Against the title of the plaintiff, he was only bound to show a judgment, execution, sale, and sheriff’s deed. This he has done. It is true, when the law requires a sheriff to appraise property taken on an execution, a sale without appraisement would be a nullity-but, in the absence of any proof on the subject, he will be presumed, in that re
The judgment is reversed, with costs. Cause remanded.