118 Ind. 301 | Ind. | 1889
This was a suit by the appellant, in the court below, to set aside a sheriff’s sale. The complaint alleges, substantially, that on the 12th day of--, 1883, the appellant executed to Charles R. McBride, guardian, a mortgage on lot number two (2), in block number one (l),in Felter and Meriwether’s subdivision of outlots 32 and 33 in the town of Clarksville, Clark county, Indiana, to secure the sum of $600 ; that said lot fronts on State street forty-nine and one-half feet, and extends back two hundred and fifty feet to an alloy; that on the 12th day of July, 1884, said mortgage was foreclosed in the Clark Circuit Court, and on the 22d day of July, 1884, an order of sale was issued to the sheriff of said county, ordering and directing him to sell said real estate, as lands are sold on execution, to pay said judgment, and also ordering that the north and south halves of said lot bo sold separately, the north half to be sold first, without relief from valuation laws, to pay said judgment; that said sheriff duly advertised said lot to be sold on the 16th day of August, 1884, and on said day sold the same to the appellee, Craig ; that said sale was not made as directed in said ordei’, or as required by law, and was void for the following reasons : 1. Said sheriff did not offer for sale the rents and profits of said real estate for a term of years not exceeding seven, in parcels and divisions, as required in said order of sale, or as required by law, and did not offer for sale said rents and profits to the north and south halves of said lots separately, but the same was offered for sale as a whole, or entirety; that said lot was susceptible of division into north
A demurrer for want of sufficient facts was sustained to this complaint, and the appellant refusing to amend, judgment was rendered against him for costs. He assigns the above ruling of the circuit court as error.
It is charged in this complaint, as we understand it, that the decree issued to the sheriff ordered and directed him to sell the real estate therein described in parcels, selling the north half thereof first, and that, in violation of said order, the
In the case of Stotsenburg v. Same, 75 Ind. 538, it was held that a sale of real estate, as an entirety, which is susceptible of division and sale in parcels sufficient to satisfy the execution, is voidable, and may be set aside. It was formerly held that such a sale was void. Catlett v. Gilbert, 23 Ind. 614; Banks v. Bales, 16 Ind. 423. It is now held, however, that such sales are not void, but voidable only. Jones v. Kokomo Building Ass’n, 77 Ind. 340; Nelson v. Bronnenburg,. 81 Ind. 193.
In this case, however, the question of the divisibility of the property was not an open one. It was settled by the court rendering the decree, and the sheriff could not exercise any discretion in the matter. It was his duty to follow the commands of the decree, and he had no right to depart-therefrom.
It is the duty of the sheriff, in áll cases, to offer the land in separate parcels, if it is susceptible of division, and a failure to do so will avoid the sale. Voss v. Johnson, 41 Ind. 19; Tyler v. Wilkerson, 27 Ind. 450; Reed v. Diven, 7 Ind. 189; Wright v. Yetts, 30 Ind. 185; Piel v. Brayer, 30 Ind. 332; Bardeus v. Huber, 45 Ind. 235.
Where the land consists of two or more separate parcels it-is the imperative duty of the sheriff to offer it in separate parcels. Brake v. Brownlee, 91 Ind. 359 ; Gregory v. Purdue, 32 Ind. 453.
This case does not fall within the rule laid down in Nelson v. Bronnenburg, supra. It is alleged in the complaint in this-case that the sheriff withheld the return for more than a year after the sale, that appellant was not present at the sale, and had no knowledge of the irregularities of which he complains until a short, time before the commencement of this suit. He can not be presumed to have waived defects of
Nor does it help the case to say that the sheriff only made a deed to the north half of the lot. If the property was offered for sale or sold in a manner different from that prescribed in the decree, such irregularity may be presumed to have deterred bidders, and we are unable to say that the appellant was not injured. We think the complaint states a good cause of action.
For the error of the circuit court in sustaining the demurrer of the appellee to the complaint the judgment must be reversed.
Judgment reversed, with directions to overrule tlm demurrer to the complaint, and for further proceedings not inconsistent with this opinion.