190 Ind. 684 | Ind. | 1921
— This appeal is prosecuted by appellant, who alleges error of the Delaware Circuit Court in setting* aside its order confirming a sale and its order approving a deed to certain real estate purchased by him from appellee, pursuant to appellee’s- power of sale under the will of George H. Booher, deceased. Also error in refusing to permit him to file certain pleadings.
The material facts in substance are that on July 24, 1918, appellee reported to the court a sale of certain real estate to appellant, which report was by the court then and there confirmed, the deed to appellant as purchaser was ordered and the deed executed by appellee, reported to the court and approved. The terms of the sale were that appellant was to execute his note to appellee with approved surety thereon for $400 and to execute his note secured by a mortgage, his wife joining therein, on the property thus sold and purchased, covering the balance of purchase money. On September 26, 1918, appellee, by his verified petition, prayed the court to set aside all of its orders and its action in approving the deed from appellee to appellant made and entered on July 24, on the ground that the deed so theretofore approved had not been delivered and that, since the court’s action aforesaid, he had received from
The record discloses that the court then proceeded to a consideration of the questions thus presented by the verified pleadings and, being satisfied in the premises, found that all of the allegations of the petition were true and that appellant continuously for sixty days had refused to complete the sale so reported on July 24, by refusing to pay the purchase price for the real estate, whereupon it was ordered and adjudged that all orders, specifically referring to them, made on July 24, 1918, be set aside and rendered null and void and of no effect.
Thereafter, on October 15, 1918, appellant tendered to the court and unsuccessfully asked permission to file a verified answer, also a verified cross-complaint, in each of which pleadings he incorporated a copy of appellee’s report of sale filed July 24, a copy of appellee’s petition filed September 26, to vacate the orders and action of
Appellant takes the position that the facts set forth in his motion, as well as in his proposed answer and in his proposed cross-complaint, were sufficient to show that the court by its action and orders made on July 24, exhausted its jurisdiction to further act in the premises ; that in the absence of fraud, mistake, inadvertence or surprise, appellant had acquired vested rights, which the court was without power to annul or revoke through the remedy thus selected by appellee.
Judgment affirmed.