88 Ind. 74 | Ind. | 1882
— In this case the appellants, the plaintiffs below, alleged in substance in their complaint, that on the 25th day of •September, 1869, Lewis Maddux and others recovered a judgment in the court below against George F. Watkins and Mahlon S. Watkins, in the sum of $133.58, with costs taxed at$8.64; that at and for some time after the rendition of .such judgment Mahlon S. Watkins was the owner of certain described reaí estate in Henry county; that, on the 4th day of October, 1869, Mahlon S. Watkins sold and conveyed said real estate to Augustus W. Watkins; that on the 21st day of March, 1870, an execution was issued on said judgment and placed in the hands •of the sheriff of Henry county; that, by virtue of such execution, the sheriff did, on the 26th day of May, levy on such real estate, and, after advertising the time and place of sale, offered and sold the same on the 25th day of June, 1870, to the appellants for the sum of $175.82, and executed and delivered to them a certificate of such sale, and made due return of such execution, which return was duly recorded in the proper execution docket; that, on the 24th day of August, 1872, Augustus W. Watkins sold and conveyed said real estate to John J. Watkins, who, on the 6th day of April, 1878, sold .and conveyed the same to Alverenus Watkins, who then held the same and claimed title thereto by virtue of such conveyance; that the appellee Craighead was in possession of such real estate without right; that, on the 16th day of August, 1881, the sheriff of Henry county executed and delivered to the appellants a deed for such real estate, the same not having been redeemed by the appellees, or by any other person, from the aforesaid sheriff’s sale thereof to the appellants; and that .all the right, title and interest in and to such certificate of sale was, on the — day of -, 18 — , sold and assigned by Thomas Maddux and Horatio Sexton to the appellants. Wherefore, etc.
The appellees jointly answered by a general denial of the complaint, and Alverenus Watkins answered specially in a single paragraph, to which the appellants replied by a general denial. The issues joined were tried by the court, and, at the appellants’ request, the court made a special finding of the facts and stated its conclusions of law thereon. Over the appellants’ exceptions to the conclusions of law, the court rendered judgment against them for the appellees’ costs.
Errors have been assigned by the appellants, which call in question the decision of the court in overruling their demurrer to the special answer of Alverenus Watkins, and the court’s conclusions of law upon its special finding of facts. These errors have been considered and discussed together, by the appellants’ counsel; but, as it seems to us that the question for decision is more fully and fairly presented by the facts specially found and the court’s conclusions of law thereon, we will consider and decide the question as thus presented. We x’egret that the appellees have not favored us with any brief or argument in suppox’t of the decision below in their favor, or with any ixxformation, even, as to the gi'ounds of such decisioxx.
The court found, in substance, that, on the 25th day of Septembei’, 3 869, Lewis Maddux, William B. Maddux, Thomas Maddux and Hox’atio G. Sexton recovered judgmeixt, in the court below, against George F. Watkins and Mahlon S. Watkins, ixx the sum of $133.58, with costs taxed at $8.58; that the coux’t, at the reixdition of such judgment, had full jurisdiction of the parties and the sxxbject of the suit in which the judgment was rendered; that, at the rendition of such judgmexxt, Mahlon S. Watkins was the owner in fee simple of the real estate described in the complaint, and, on the 14th day of October’, 1869, he sold and conveyed the same to Augustus W. Watkins; that, on the 21st day of March, 1870, an exe
The court further found that, on the 24th day of August, 1872, Augustus W. Watkins sold and conveyed such real estate, for the sum of $800, to John J. Watkins, who, on April 6th, 1878, sold1 and conveyed the same, for the sum of $500, to Alverenus Watkins; that the 'defendant Craighead had been in possession of such real estate as tenant of Alverenus Watkins since April 6th, 1878; that the rental value thereof was $5 per month; and that, on the 16th day of August, 1881, the sheriff of Henry county executed to the appel- • lants, as the owners by assignment of such certificate of sale, a deed to such real estate, in pursuance of the sheriff’s sale thereof.
The court also found that John J. Watkins made repairs on the property, while he owned it, of the value of $75, and Alverenus Watkins made repairs and improvements thereon, while he owned the same, .of the value of $40; and that, at the times they respectively bought such real estate, neither of them had actual notice or knowledge of the existence of the aforesaid.judgment, or of the sheriff’s sale thereunder, or that the real estate had not been redeemed from such sale thereof, but bought the same in good faith for the consideration aforesaid, and each of them paid such consideration before
Upon the foregoing facts the court stated the following conclusions of law:
1. That the appellants’ title to such real estate was valid and good as against the defendants in the judgment, and all persons purchasing with notice in fact of the non-redemption of such real' estate from the sheriff’s sale thereof; but that it is not good as against subsequent purchasers for value, without notice of the non-redemption of the real estate from such sale.
2. That the record of the judgment, execution and sale was constructive notice of their contents, but was not constructive, notice of the non-redemption; and,
3. That the law was with the defendants.
It will be observed that the sheriff’s sale of the real estate in controversy, under which the appellants claimed title thereto, was made on the 25th day of June, 1870, and that,, on the same day, the sheriff’s certificate of such sale was executed and delivered to the purchasers thereof. At the time of such sale the act providing for the redemption of real property, or any interest therein, sold on execution or order of sale, and for the issuing of certificates of purchase, and for the execution of conveyances, approved June 4th, 1861, was the law in force in this State upon the matters expressed in the title of such act. In section 2 of this act if was provided as follows:
“ Upon 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.
The court found, as facts, that after the sale of the property and the issue of the certificate of purchase, under which the appellants claimed title, and within the time prescribed'1 by law, the sheriff made a proper return on the execution, show
Our conclusion is that, upon the facts specially found by the trial court in the case at bar, the law of the case is with the appellants, and that the court erred in its conclusions of law.
The judgment is reversed, with costs, and the cause is remanded, with instructions to the court to set aside its conclusions of law, and, in lieu thereof, to state as its conclusion of law that the law of the case is with the appellants, the plaintiffs below, and render .judgment accordingly.