151 Ind. 16 | Ind. | 1898
Upon tbe trial of tbis cause, instituted by appellee against appellant, tbe court made a special finding of tbe facts and stated conclusions of law tbereon in favor of appellee, and, upon motion, rendered judgment in favor of appellee. Tbe errors assigned call in question tbe correctness of tbe conclusions of law.
Tbe special finding, so far as is necessary to tbe de
Is is clear that when the real estate sold by the sheriff on said decretal order was redeemed from such sale by Peter" Ringle, the owner thereof, that such sale was wholly vacated as to said real estate and the same was subject to sale upon a decretal order for the payment of the sum unpaid, the same as if no sale had been made. Section 782 Burns’ R. S. 1894, (770 R. S. 1881); Green v. Stobo, 118 Ind. 334; Hervey v. Krost, 116 Ind. 268; Ewing v. Bratton, 132 Ind. 345.
After the redemption of said real estate appellant was entitled to an alias decretal order to make the balance dne on said judgment and decree by the sale of the mortgaged property. An ordinary execution however, was issued on said judgment and decree of foreclosure, and the property in controversy was sold thereon; Did the sale on such execution and the sheriff’s deed thereunder give any title to appellant to the property in controversy? In this State the holder of a mortgage may either sue upon the mortgage and obtain a personal judgment against any party to the same liable upon any agreement for the indebtedness secured by the mortgage, and also a decree of foreclosure of the mortgage and sale of the mortgaged property to pay said mortgage and judgment and cost of the action; (Section1111 Burns’ R. S. 1894, 1097 R. S. 1881), or he may sue and recover judgment on the debt secured by the mortgage without a foreclosure of the mortgage. If he forecloses his mortgage and takes a personal judgment as provided
The judgment and decree were rendered as required by sections 1111, 1113, Burns’ E. S. 1894, (1097, 1099, R. S. 1881). The second sale of the mortgaged real estate, the one assailed by appellee, was made in all respects as required by the decree and the statute, except the-writ on which the same was sold, which was
When any property levied upon by execution remains unsold, and the sheriff returns said execution, it is provided by statute that the lien of the levy shall continue, and the clerk, unless otherwise directed by the plaintiff, shall forthwith issue another execution, reciting the return of the former execution, the levy, and the failure to sell, and directing the sheriff to satisfy the judgment out of the property unsold, if the same is sufficient; if not, then out of any other property of the judgment debtor subject to execution. Sections 752, 753 Burns’ R. S. 1894, (740, 741 R. S. 1881).
It was held under said sections by this court in Richey v. Merritt, 108 Ind. 347, that the levy of an execution upon property of sufficient value to pay the judgment creates a presumption of the satisfaction of the judgment, and operates as such until the levy is legally disposed of, and an alias execution issued upon such judgment before the levy is disposed of, is irregular and voidable, and may be set aside upon
It would seem clear, therefore, that if an alias execution is issued instead of a venditioni exponas, which is an order to sell the property taken under a former execution, as provided by section 753, (741), supra, is only irregular and voidable, and not void, that an execution issued upon a judgment and decree of foreclosure would be irregular and voidable, but not void. Here the process was issued under the seal of the court, and stated'the recovery of judgment, and when and in what court recovered, and fully identified the proceeding upon which it was issued, a reference to which would disclose the fact that the same was a judgment and decree of foreclosure, and that the real estate described therein must be first sold before any other property of the mortgagor could be levied upon. The sale of the mortgaged real estate was made on said process in all respects as required by the decree and the statute. The facts stated in the special finding do not show any excuse for the failure of appellee to take proper steps to set aside the execution, or to otherwise prevent the sale of said real estate thereon. The reasonable inference is that appellee had notice of all the irregularities of said writ, and that she made no objection thereto until the commencement of this action, after the deed was executed, which was two years after said writ was issued.
A defendant may waive irregularities in an execution, and if he do not procure the same to be set aside Before sale he will be presumed to have waived them.
Appellee insists that the sale of said real estate upon said execution was void under section 1119, Burns’ R. S. 1894, (1105 R. S. 1881), which provides that whenever an execution shall issue upon a judgment recovered for a debt secured by a mortgage on real property, the plaintiff shall indorse thereon a brief description of the mortgaged premises, and the equity of redemption shall in no case be sold on 'such execution. Construing this section with the other sections concerning the foreclosure of mortgages, it is evident-that the same only applies to a judgment at law where there is no foreclosure of the mortgage.
Where there is a personal judgment' against the mortgagor or other person for the debt secured by the mortgage, and a decree of foreclosure under the .provisions of section 1111, 1113 (1097, 1099) supra, the said section could not apply for the reason that the equity of redemption of the mortgagor in the mortgaged premises cannot be sold on any writ issued on such judgment and decree. The same gives no authority to sell such equity of redemption. On the contrary, the decree expressly provides, and the statute’
It follows that the court erred in its conclusions of law. The death of appellee since the submission of the cause having been shown, the judgment is reversed as of the term at which -the submission was made, with instructions to the court below to restate its conclusions of law, and render judgment in favor of appellant in accordance with this opinion.