61 Ind. 584 | Ind. | 1878
In this action, the appellee, as plaintiff, sued the appellants, as defendants, in the Hamilton Circuit Court.
In his complaint, the appellee alleged, in substance, that, on the 10th day of October, 1874, the Merchants’ National Bank of Indianapolis, by the consideration of the Hamilton Circuit Court, procured a judgment and decree, directing the sale of certain real estate, particularly described, in Hamilton county, Indiana, to satisfy an indebtedness owing to said national bank by Peter C. Lawyer and Edward K. Hall, a certified copy of which decree was, on the 20th day of October, 1874, issued to the appellant Iredell H. Jessup, then and since the sheriff of said Hamilton county; that the said sheriff, in pursuance
To this complaint the appellants separately demurred, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrers were severally overruled, and to these decisions the appellants severally excepted.
The appellant Jessup separately answered in two paragraphs, the first setting up affirmative matter by way of defence, and the second being a general denial.
The appellant Asher Gr. Walton separately answered in three paragraphs; the first paragraph being a general denial, and each of the other tvro paragraphs setting up a special defence. The appellee demurred to the second, and third paragraphs of the answer of the appellant Walton, upon the ground that neither of the said para-: graphs stated facts sufficient to constitute a defence to this action; which demurrer was overruled as to the second paragraph, and sustained as to the third paragraph, of said answer, and to this latter decision the appellant Walton excepted. The appellee replied, by general denials, to the first paragraph of the answer of the appellant Jessup, and to the second paragraph of the answer of the appellant Walton. On the appellee’s application, and by agreement of the parties, the venue of the action was changed to the court below.
The issues joined were tried by a jury, and, under the instructions of the court, a special verdict was returned, in substance, as follows:
“ We, the jury, find the following special verdict, in the above entitled cause, to wit:
“ 1st. We find, that, on the 10th day of October, 1874, the Merchants’ National Bank of Indianapolis recovered a decree of foreclosure against Peter O. Lawyer, Edward K. Hall and Mary J. Hall, in the Circuit Court of Ham
“ 2d. That, on the 22d day of October, 1874, a certified copy of said decree was placed in the hands of said Jessup, who then was the sheriff of said county, to be by him executed as said sheriff.
“ 3d. That, under said decree, the property therein described was, by said sheriff, advertised'for sale at the court-house door, in said county, on the 14th day of November, 1874.
“4th. That, on the 14th day of November, 1874, the defendant Jessup, as the sheriff of said county, sold the property described in the complaint to the plaintiff', Harvey G. Carey, for the sum of eight hundred dollars ($800).
“ 5th. That, on said 14th day of November, 1874, said Jessup executed to said plaintiff a certificate of purchase for said real estate, conditioned that if said defendants in that suit, under which the said decree was issued, should not redeem said property from said sale within one year from the day of said sale, said Harvey G-. Carey should be entitled to a deed for said premises.
“ 6th. That, on the 10th day of November, 1875, the defendant Asher G. Walton purchased the real estate described in the complaint, from James Shaw, who was then the owner of the same, who executed to said Walton a deed of conveyance, in which his wife joined, for said real estate, and that said deed was duly recorded in the Deed Record of said county of Hamilton, in Deed Record-, page-, on the-day of-, 1875.
“7th. That, on the 13th day o.f November, 1875, and within one year from the day of said sale, the defendant Asher G. Walton, being then the owner of said land, paid to the clerk of the Hamilton Circuit Court one check, calling for eight hundred and eighty dollars, for the purpose of redeeming said lands from said sale.
“9th. That the clerk of said court endorsed on the record containing the decree under which said sale was had, immediately following said decree and in connection therewith, his receipt for eight hundred and eighty dollars, in full for the redemption of said lands from said sale, as received from said Asher G. Walton, on said 13th day of November, 1875.
“10th. That, before the commencement of this suit, the plaintiff tendered to said Jessup, as such sheriff, one dollar for his fee for making a deed to plaintiff' for said real estate, and demanded a deed of conveyance from him, in accordance with the terms of his said certificate of purchase, which he then produced.
“ 11th. That said sheriff refused to execute a deed to plaintiff for said real estate, for the reason that said property had been redeemed from said sale by said Walton, as appeared from the recoi’ds on file in the office of the clerk of said court.
“ 12th. That the clerk of said court has, at all times since said 13th day of November, 1875, had, and still has, said sum of eight hundred and eighty dollars in his possession, for the use of the plaintiff; that he has been ready and willing at all times since said 13th day of November, 1875, to pay to plaintiff said sum of money, in legal-'tender notes of the United States, and that said clerk now has said sum of money present in court for the use of said plaintiff.
“ If, upon these facts, the law is with the plaintiff, then we find for the plaintiff; and, if the law is with the defendants, then we find for the defendants.”
Thereupon the appellants moved the court in writing
The following alleged errors have been assigned by the appellants in this court:
1. In overruling the demurrer of the appellant Jessup to the complaint;
2. In overruling the demurrer of the appellant Walton to the complaint;
3. In sustaining the appellee’s demurrer to the third paragraph of the answer of appellant Walton;
4. In overruling the appellants’ motion for a venire de novo ;
5. In overruling the appellants’ motion for a now trial;
6. In rendering judgment upon the special verdict; and,
7. In rendering judgment in favor of the appellee, and against the appellants, upon the special verdict of the jury.
Without especial reference to the errors assigned, or to the order of their assignment, we will consider and decide the principal questions presented by the record of this cause.
It does not appear from the record, that any alternative writ of mandate -was applied for or issued in this action; but the appellants appeared, probably in obedience to an ordinary summons, and demurred to and answered the appellee’s verified complaint, as containing his cause of action. The proceeding is certainly informal and defective in its inception. The suit should have been
We refer to this matter in the interest of good pleading, and not because it is of much importance in the decision of this case. The appellants did not object in the circuit court, nor do they object here, to the mere form of this suit.
In section 739 of the practice act, it is provided, that “Writs of mandate may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins; or, a duty resulting from an office, trust or station.” 2 R. S. 1876, p. 296.
In section 2 of “An act providing for the redemption of real property,” etc., approved June 4th, 1861, it is provided, that, “ Upon the payment of the purchase-money, the sheriff' or other officer making such sale shall issue to the purchaser a certificate showing the court in which the judgment or decree was rendered, the parties to the action, the date of the sale, the name of the purchaser, the amount of the purchase-money, and a description of the premises sold, which certificate shall entitle the holder thereof to a deed of conveyance, to be executed by the officer making the sale at the expiration of one year from the date of such sale, if the property shall not have been previously redeemed.” 2 R. S. 1876, p. 220, note a.
It is evident from the averments of his complaint, that the appellee was the holder of said certificate of purchase, and that, at the expiration of one year from the date of the sale therein mentioned, he had requested the appellant Jessup, as such sheriff-, to execute to him a deed of the property described in said certificate. It is apparent also, from said complaint, that the appellant Walton had the right to redeem said property from said sale.
The only question, therefore, for our consideration, in so far as the sufficiency of said complaint is concerned, maybe thus stated: Does the complaint show by any averment, that the property sold by the sheriff, described in said certificate, had not been redeemed from said sale, as provided for in the 1st section of said act ? In the 1st section of said act of June 4th, 1861, it is provided, that, in such a case, any one having the right of redemption as therein specified, “ may redeem such real property or interest therein, at any time within one year from the date of such sale by paying to the. purchaser, his heirs or assigns, or the clerk of the court from which such execution or order of sale was issued for the use of said purchaser, his heirs or assigns, the purchase-money,
It will be seen from 'this provision of the statute, that the appellant "Walton, under the facts of this case as stated in appellee’s complaint, and the law applicable thereto, might lawfully redeem the property from the sale thereof, at any time within one year from the date of such sale, by the payment of the purchase-money, with interest thereon at the rate of ten per cent, per annum, either to the purchaser, the appellee, his heirs or assigns, or to the clerk of the Hamilton Circuit Court, for the use of said purchaser, the appellee. It was necessary, therefore, that the appellee, in stating a prima fade case to entitle him to a writ of mandate, should not only aver that the redemption money was not paid to him, but he should also have averred, that the check for said money, which was rightfully paid to, and received by, the clerk of the Hamilton Circuit Court, in redemption of" said property, had not been paid nor honored by the bank on which it was drawn, within the time limited by law for such redemption.
The payment of the money to the clerk of the court was fully authorized by the statute, and such payment, if made, redeemed the property from the sale thereof just as completely and effectually as it would have been redeemed if the payment had been made to the appellee in propria persona. It was not an improper, nor an illegal mode of payment, if the appellant Walton gave his check on a bank in this State for the amount of the redemption money to the clerk of the court, who was willing to receive the check as so much money. If the appellant Walton had the money to his credit in bank, subject to his check, and the clerk of the court was willing to, and did, receive his check as so much money, the transaction was fully sanctioned by the ordinary usages of business, and was certainly not an illegal payment, if
The appellee did not aver, in his verified complaint, that the check in question was not promptly honored and paid. Rot only so, but it affirmatively appeared on the face of said complaint, that, within the time limited by law for the redemption of said real estate, the money called for by said check Avas placed to the credit of the clerk of the Hamilton Circuit Court, in the Citizens’ Bank of Roblesville, the county seat of said Hamilton county. This is in harmony with the special verdict of the jury.
Under the averments of the complaint, the year for the redemption of said real estate from the said sheriff’s «ale thereof did not expire until midnight of the 14th day of Rovember, 1875; but the jury found, that the clerk of said court had said redemption money, in legal-tender notes, in his hands on the 13th day of Rovember, 1875, for the use of the appellee, and had been ready and Avilling, at all times since said day, to pay over the same to the appellee.
It seems very clear to us, that the appellee’s verified complaint, in this action, did not show a prima facie case, in his behalf, for a writ of mandate against the appellant Jessup, as the sheriff of said county, in this, that it did not shoAV that the real estate described in the appellee’s certificate of purchase had not been redeemed from the sheriff’s sale thereof, within the time and in one of the modes prescribed by the statute. Indeed, we think that the complaint showed affirmatively, that the real estate in question had been redeemed according to law, from the said sale thereof. In our opinion, therefore, the circuit court erred in overruling the appellants’ demurrers to the appellee’s verified complaint.
Having reached, this conclusion in regard to the insufficiency of the appellee’s complaint, it is unnecessary for us
The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to sustain the «demurrers to the complaint, and for further proceedings, an accordance with this opinion.
