78 Ind. 57 | Ind. | 1881
The appellee was the plaintiff below. His complaint was in two paragraphs. The first was in the ordinary form for the recovery of real estate and damages for its detention, q The second was to avoid and set aside a sheriff’s sale of the same real estate, had on an execution to which the appellee and others were defendants. The appellant answered the complaint by a general denial, and filed a counter-claim asserting title in himself, and praying that his title might be quieted. Issue on the counter-claim by a denial. The cause was tried by the court, and, at the request of the defendant, a special finding of facts and conclusions of law was made. The findings both of fact and law were for the plaintiff below, and the defendant excepted to the conclusions of law.
The facts found were, that the appellant recovered a judgment in the Greene Circuit Court, against Peter Hagaman, Nancy Hagaman, and the appellee, James E. Hagaman, ■on October 25th, 1876, for $411.10 and costs. That the appellee and said Nancy were sureties for Peter Hagaman in the •debt for which said judgment was recovered, but no issue or finding of suretyship was made in said judgment. That on the 27th day of April, 1877, an execution was issued on said judgment to the sheriff of Greene county, and on April 30th, 1877, said sheriff levied said execution on a tract of land in Greene county belonging to said Peter Hagaman, of the value ■of $3,500. That said land was then incumbered by a prior
That said execution issued on appellant’s judgment remained in the hands of said sheriff until October 24th, 1877, when it was returned, and that the lands of Peter Hagaman so levied upon were never advertised or sold on said execution of said appellant; and said sheriff, without making any disposition of said levy on said lands of Peter Hagaman, except reciting the fact that they had been sold on said execution issued on said McKinney judgment, proceeded on the 2d day of October, 1877, to levy said execution so issued on appellant’s judgment on the lands of the appellee, described in his complaint; and, on October 25th, 1877, an alias execution was issued on said judgment of appellant, reciting thei’ein only the last levy aforesaid on the lands of the appellee, and omitting therefrom the first levy on said lands of Peter Hagaman; that said sheriff, by virtue of said alias execution, advertised, and on December 22d, 1877, sold, said lands of appellee to the appellant for $100; and, at the expiration of
From these facts the court found the following conclusions of law:
1. That the levy of the execution of Alexander Neff on the land of Peter Hagaman, on April 30th, 1877, operated as a satisfaction thereof so long as said levy remained undisposed of by sale, or in some other legal manner;
2. That the sale of said Peter Hagaman’s land on the McKinney execution did not divest the lien of the defendant’s judgment and execution theréon, nor divest nor dispose of defendant’s levy on said land, but that the same still remained subject to sale on said defendant’s execution, and it was the duty of the sheriff, before levying on other property, to first sell the lands of Peter Hagaman so first levied upon;
3. That the levy of the defendant’s execution on the land of the plaintiff, And the sale to the defendant thereunder, on December 22d, 1877, were null, and void, by reason of the failure to first dispose of the prior levy on the land of said Peter Hagaman;
4. That the plaintiff was entitled to the possession of the lands in controversy, and tó damages in the sum of $209.
Judgment was rendered for the appellee, pursuant to said findings.
The error assigned is, that the court erred in its conclusions of law.
The law has been settled for nearly sixty years in this State, that a levy upon lands or goods of sufficient value to pay the judgment upon which the execution issued raises the
The appellant concedes that this is the general rule, but urges that it is not applicable to the case at bar, for two reasons:
1. That the sheriff, having the appellant’s execution in his hands when he sold the Peter Hagaman land on the McKinney execution, virtually sold on both executions, .and therefore the levy of appellant’s execution on said land was exhausted by such sale;
2. That the sheriff, after the sale on the McKinney execution, and by the return of such fact as a reason for not .selling said property on appellant’s execution, abandoned said levy; and that the same was rightfully abandoned, because no title was left in Peter Hagaman that could be the subject ■of sale.
In support of his first proposition, the appellant quotes the following portion of sec. 196 of Freeman on Executions:
“ If a sheriff have two or more writs in his hands, it is his •duty to apply the proceeds to the writ having the elder lien. He may, however, levy and sell under the junior writ. If he does so, the purchaser acquires title to the property sold, free from the lien of all the other writs. In such an event, the plaintiff, under whose junior writ the levy and sale were made, is not entitled to the proceeds of the sale. On the contrary, it is the duty of the sheriff to apply these proceeds to the several writs that may be in his hands, according to their priority as liens. A sale, when made by the officer, is not for the benefit of the particular writ under which it is made, but for the benefit of all writs in his hands, according to their respective priorities.”
The case of Harrison v. Stipp, 8 Blackf. 455, is also cited in support of the appellant’s theory. It was held in that case, that when a sheriff has several executions in his hands (the laws as to a sale under them being different), and the real estate levied upon is divisible, he should commence with the execution first to be satisfied, and sell enough of the property, under the law governing such sale, to satisfy that execution; and that he should afterward sell under the other executions in their order, according to the same rule, until all are satisfied or the property is exhausted. But, if the property is not susceptible of division, the same should be sold under the execution first to be satisfied.
As the law was prior to the redemption statute of 1861, a sale of land under a senior judgment extinguished the lien of a junior judgment, and necessarily vacated the levy of an execution issued on such junior judgment, for the reason that such sale, consummated by a conveyance, divested the title of the judgment debtor, and there was no estate left to which the lien of the junior judgment could attach. But for the statute providing for the redemption of real estate from an execution sale, the sheriff’s return would have shown that the lien of appellant’s judgment on the land of Peter Hagaman was destroyed by the sale on the older judgment of McKinney, and the subsequent levy on the land of the appellee would have been legal. Under the redemption statute, however, a different rule prevails. The title of the judgment debtor continues until the year for redemption has expired;
It was held, that, notwithstanding Langsdale was a party to the judgment and decree of sale, the lien of his judgment was not divested by the sale to pay Gay’s judgment, and that he was entitled to redeem. It follows from the principle established in that case, that the lien of the appellant’s judgment on the land of Peter Hagaman was not extinguished by the sale on the McKinney execution.
The second proposition of the appellant is as untenable as the first. The sheriff had no authority, of his own volition,, to abandon the levy upon the lands of Peter Hagaman. This follows from the decisions of this court, above cited, that a sufficient levy is prima facie a satisfaction. It was said, in McCabe v. Goodwine, supra, that, where property has been released from a levy by consent of the parties to the execution, the plaintiff can not abandon such levy to the injury of third persons. The rights of the appellee could not be affected by the act of the sheriff in assuming to abandon the levy on the property of Peter Hagaman. The alleged aban
The appellant, having purchased at his own execution sale, is chargeable with notice of the irregularity in the proceed- .. ings of the sheriff.
The circuit court did not err in its conclusions of law, and its judgment ought to be affirmed.
Pee Curiam. — It is therefore ordered, on the foregoing opinion, that the judgment below be, and it is hereby, in all things affirmed, at the costs of the appellant.