23 Ind. 600 | Ind. | 1864
This action was brought by the appellee to set aside a sheriff’s sale and siibsequent deeds executed by the purchaser and his grantee. The complaint set forth the title of the plaintiff to the property, the recovery of a decree of foreclosure against it by one Miller for the sum of $75, the issuing to the sheriff of a copy of the decree, and the advertisment of the property by him for sale; and averred that before the day of sale the appellee paid to the execution plaintiff the full amount of the sum named in the decree, with interest, and requested him to notify the sheiiff of that fact, and that the costs would be paid at any time when called for, which notice was given, and the sheriff was ordered by the execution plaintiff to proceed no further with said sale; that with full knowledge of all said facts, and being actuated by malice toward appellee, said sheriff' proceeded to sell the whole of said mortgaged premises, worth $7,000, to the attorney of the plaintiff in the decree of foreclosure, for the sum of $16, being the amount of said costs, and that being the only bid for said property; that no person was present on the part of the appellee, and no person from Richmond, where
A demurrer was filed to this complaint, which was overruled by the court. It is insisted that this was error.
The law is well settled, that gross inadequacy of consideration, with any departure from duty on the part of the sheriff, which may have proved injurious to the rights of the execution defendant, in the sale of property, will authorize the court to set aside the sale. The case of Reed v. Carter, reported in 1 Blackf. 410, which was then before this court upon a motion to set aside the sale by the sheriff, was in many respects like the case at bar. There the execution defendant paid to the sheriff the amount due, except a small balance which could not then be ascertained, and promised to pay that when called upon. The sheriff' afterward, by virtue of the execution, on which $15 were due, without demand, sold, one hundred acres of land, worth from $1,500 to $2,000, for $351.25. In that case the law was stated as follows: “A
It has not escaped our notice, that in some recent cases contained in the 19th and 20th volumes of our Reports, a disposition has been shown to follow the change in the rulings of the Court of Appeals of the state of New York,
We do not feel, however, that the case now pending requires from us a review of those decisions, as it will hardly be insisted that the action of the sheriff, in a sale to realize simply his costs, is to conclude the court upon a question of the divisibility of the property sold for his benefit, and under his official direction, especially where the purchaser is the attorney of record, and the price is grossly inadequate. In this case we hold it to have been the duty of the sheriff to have informed himself of the condition of the property he was about to sell to realize his costs, and it was an abuse of official discretion to sell the property so as to divide the rooms through every story of the building, when half the quantity of ground would have secured the debt, and also a proper division of the property. The view we have expressed renders unnecessary any examination of the question, whether, after the sum secured by the mortgage was paid, the sheriff could proceed under the decree for his costs.
As the facts proved upon the trial established the material averments of the complaint, and we hold them sufficient to sustain the decree of the court, the judgment below is affirmed, with costs.