38 Ind. App. 570 | Ind. Ct. App. | 1906
Appellees’ demurrer for want - of facts to appellant’s complaint was sustained, and, refusing to plead further, judgment was rendered against him, from which he appeals.
It is averred in the complaint, which is in one paragraph, that on June 23, 1904, the appellee bank recovered judgment in the Owen Circuit Court against appellant for $575.92 and costs; that an execution was duly issued thereon and delivered to the sheriff, who on August 25, levied said execution “on 349 shares of stock at $100 per share of the capital stock of the Epitomist Publishing Company as
There is no averment that the amount paid was inadequate or less than the actual value of the stock described.
The further question for decision is whether the failure to pay the amount of said bid invalidates the sale.
It is insisted by appellant that tbe attorney who executed the receipt averred to have been given by the appellee bank had no authority to act for the bank in that behalf. While the complaint does not present the point argued, it is suggestive of controversies likely to follow a holding that arrangements between the execution creditor and the purchaser, to which the execution debtor is not a party, may take the place of the cash payment by which the sale is consummated and without which no title passes.
The failure to pay the amount bid is not a mere irregularity, but is of the essence of the transaction, and the requirement that the amount of such bid be paid in cash is a material and essential one.
The judgment is therefore reversed, and cause remanded, with instructions to overrule the demurrer to appellant’s complaint and for further consistent proceedings.