27 Ind. App. 107 | Ind. Ct. App. | 1901
— Suit for partition of real estate brought by appellant against appellees. The complaint alleges that the plaintiff is the owner of the undivided one-third of lot two in Cochran’s addition to the city of Vincennes, and that the defendant Melvina Ulmer is the owner of the undivided two-thirds thereof. Appellees John and Judson V. Ulmer are made parties to answer as to any interest they claim therein. Upon trial by the court, judgment was. rendered in favor of defendants. The overruling of appellant’s motion for a new trial is the only error assigned. The reasons set out in the motion for a new trial are that the finding of
The record discloses the following facts. Sarah F. Ulmer, the wife of appellee John Ulmer, died testate in July, 1895, the owner of the property described in the complaint. She left surviving her as her only heirs her husband, appellee John Ulmer, and Judson Ulmer and George Ulmer, her sons. George died in August, 1895. In 1897, John Ulmer married appellee Melvina. In February, 1898, John, Melvina, and Judson conveyed the real estate in controversy to one Dran, who, upon the same day, conveyed it to Melvina. The sheriff of Knox county, in December, 1897, sold the undivided one-third of this real estate, by virtue of an execution issued to satisfy a judgment against said John Ulmer in favor of the Zellinger estate, to appellant., who afterwards received from the sheriff a deed therefor. This constitutes his claim of title. The will of Sarah Ulmer, after directing the payment of her debts and funeral expenses, is as follows: “My husband John Ulmer shall have full management and control of my property during his natural life and shall have full power at his discretion to lease, sell or convey the same by deed or otherwise and to use the same or as much thereof as may be necessary to the support of himself and' our children George W. Ulmer and Judson V. Ulmer and at the death of my said husband John Ulmer my entire estate then remaining shall go absolutely and in fee simple to my sons George W. Ulmer and Judson V. Ulmer share and share alike, if either of my sons should die before the father dies, then at the death of my husband, the surviving son shall take the entire estate absolutely and in fee simple. My son George W. Ulmer being an invalid I especially charge my husband John Ulmer and my son Judson V. Ulmer with the duty of furnishing at all times a home and full support and tender care to my said son George W. Ulmer. I hereby name and appoint my husband, John Ulmer, as executor of my will.” The will was probated, but no. letters testamen
Counsel for appellees, before discussing the grounds upon which appellant asks for a reversal of the judgment, insist that he is not entitled to a reversal, because the record shows a mistrial, and that the sheriff made no' demand for property upon the execution defendant, and made no levy upon the real estate subsequently sold. The claim of mistrial is founded upon the following facts: Defendants filed a second paragraph of answer to which appellant demurred for want of facts. It does not appear that a ruling was made on this demurrer, nor that a rule was entered for a reply, nor that a reply was filed thereto' to this paragraph. The record does state that “the cause being at issue the same is submitted to the court.” If the appellant went to trial without a ruling on his demurrer, it was but a waiver of a right he might have insisted upon. As defined by Terrell v. State, ex rel., 66 Ind. 576, “The service of an execution and the levy of an execution are often referred to as convertible terms; but, in strict legal parlance, the service of an execution may be said to be the communication of its contents, to the execution defendant, accompanied by, or followed with, a demand for its satisfaction, and in its natural order precedes the levy of the execution.” Appellee John Lahr testified that no demand was made upon him for property; this was, according to the foregoing definition, a failure to serve the execution. In Guerin v. Kraner, 97 Ind. 533, at page 536, the Supreme Court say: “The statute seems to require such service before levying upon property. §719 R. S. 1881. The object of the service is to give the execution defendant an opportunity to pay the execution without incurring further costs, or the right to designate the property to be levied upon. §727 R. S. 1881.” In the case just referred to, the plaintiff brought an action to set aside a sheriff’s sale of real estate on the ground that it was exempt, from execution as the property of a resident householder. The com
Did the sheriff make a levy before the sale of the property ? Upon this question the return is silent. It does not necessarily follow from the fact that no memorandum of a levy appears upon the return of the sheriff that no levy was made. Such memorandum would be evidence of the levy; but its absence does not prove that no levy was made. An officer is presumed to do his duty, and that presumption must prevail until the contrary is shown. The sheriff gave notice of the sale of the land, as required by statute. It was not essential to the exercise of the power of the officer that he should take actual possession of the real estate. This was notice that it had been levied upon, and that it was to be sold for the satisfaction of the judgment. Freeman on Exetions, §106. In Carpenter v. Doe, 2 Ind. 465, a case followed in other decisions of our Supreme Court, the court say: “It is a general rule that a purchaser at sheriff’s sale, is bound
If the trial court erred in overruling appellant’s motion for a new trial the judgment should be reversed notwithstanding the fact that the sheriff did not demand property before the sale, and that there is an absence of evidence affirmatively showing a levy by that officer.
Counsel for appellee, as bearing on the justice of the case, refer to the fact that appellee Ulmer was a resident householder and as such entitled to exemption, and that he was not afforded an opportunity to claim this exemption. He was charged with the knowledge that there was a judgment against him which was a lien against his real estate and upon which the plaintiff was entitled to have issued an execution. His property was advertised for sale to satisfy said execution. Of this he was required to take notice. The right to exemption is a personal privilege to' be exercised. It has been held that right of exemption is lost although the defendant never knew that his property had been levied upon. Freeman on Executions, §212; Bell v. Davis, 42 Ala. 460. There may be circumstances under which a judgment debtor who fails to claim his exemption should be held not to have waived his right; but the facts in the case at bar do not warrant such a holding.
The solution of the controlling question presented by the appeal depends upon the construction we give to §2642 Burns 1894. It reads as follows: “If a wife die testate or intestate leaving a widower, one-third of her real estate shall descend to him, subject, however, to its proportion of the debts of the wife contracted before marriage: Provided,
Appellee not having made an election to take under the will of his wife, the court erred in overruling appellant’s motion for a new trial. Judgment reversed, with instruction to sustain said motion.