Piel v. Brayer

30 Ind. 332 | Ind. | 1868

Elliott, J.

The only questions presented in the case for our determination arise from the action of the court below in overruling the demurrers to the answers, and in sustaining those to the replies.

Are the facts set up in tide answers sufficient to bar the aetiou? Two objections are urged by the appellant to the validity of the sheriff’s sale.

First, that the error in the description of the mortgaged premises in the decree of foreclosure is fatal to the sale made under it; and,

Second, that the real estate mortgaged consists of two separate and distinct tracts, or parcels, as is shown by the description thereof in the mortgage, and in the decree of foreclosure, and that the sheriff illegally offered and sold both parcels together, instead of selling each parcel separately.

The description of the property in the mortgage, and where it is correctly described in the decree of foreclosure is as follows:—

“A certain parcel of land, situate in out-block number 72, of the donation lands of the city of Indianapolis, and enclosed in the following boundaries: commencing at a point on the south lino of said out-block number 72, fifty feet west of the south-east corner of said out-lot; thence running north to an alley for one hundred and fifty-eight feet, more or less; thence west for forty-four feet, six inches, along the south line of said alley; thence running south for one hundred and fifty-eight feet, more or less, to the south boundary of said out-block number 72; thence running east to the place of beginning. Also, another parcel of land, likewise situate in said out-block number 72, and enclosed in the following boundaries: commencing fifty-five feet west of the noi'th-east boundary of said out-lot; thence running along the north line of said ont-block 72, for fifty-five feet; thence south for one hundred and sixty-one feet, more or less, to an alley; thence east along the line of said alley for fifty-five feet; thence north to the place of beginning.”

The conclusion to which wo have arrived upon the second proposition l’enders the examination of the first unnecessary. It appears by the sheriff’s return to the order of sale that the whole of the mortgaged premises were offered and sold in one body at the same time to the defendant Brayer, the mortgagee, for the sum of three hundred dollars. The description of land in the mortgage shows that it consistecl of two several lots, or parcels, which were separated by an alley. The statute provides that “if the estate shall consist of several lots, tracts, and parcels, each shall be offered separately; and no more of any real estate shall be offered for sale than shall be necessary to satisfy the execution, unless the same shall not be susceptible of division.” 2 G. & H. 249, sec. 466. This provision applies to sales on the foreclosure of a mortgage with like force as to sales on execution. 2 G. & H. 295, sec. 635. And it is well settled by numerous decisions of this court, that if the sheriff" in violation of the statute, offer and sell several distinct tracts or parcels of land in one body, the sale is void. Sherry v. Nick of the Woods, 1 Ind. 575; Reed v. Diven, 7 Ind. 189; Banks v. Bales, 16 Ind. 423; Tyler v. Wilkerson, 27 Ind. 450. Brayer, the judgment plaintiff, being the purchaser at sheriff’s sale, is chargeable with notice of all irregularities in the sale. Nor do we think that Schwior and Brandt can claim to be innocent purchasers without notice that the sheriff" exceeded his power in selling both parcels of the land in one body. They purchased from Brayer and derived their title through the mortgage, decree of foreclosure, and the sheriff’s sale, and are chargeable with notice of the contents of the record, and are presumed to know the law. The description of the land in the mortgage and decree of foreclosure shows that it consisted of two separate lots, or parcels; and the sheriff’s return to the order of sale, which is a part of the record, shows that both parcels were sold together in one body: they are therefore chargeable with notice of the fact that the sale was in violation of the statute; and, as the fact is apparent on the face of the record through which they claim title, the rule that the sheriff:’ is presumed to have done his duty in making the sale does not apply to the case. See Doc v. Collins, 1 Ind. 24.

The decree of foreclosure was rendered on default;and immediately following the erroneous description of the land ordered to be sold, in which it is described as lot number 144 in Noble’s addition to tlie city of Indianapolis, occurs the following: “Said plaintiff having shown said real estate cannot be sold in parcels without injury, that the sheriff sell the land to the highest bidder,” &e. It is insisted by the appellees that this provision of the decree was binding on the sheriff) and rendered the sale of both parcels of the land together a valid one. "We do not think so.

The complaint contained no averment that the land could not be sold in parcels without injury. No such issue was tendered by the complaint. Nor did the law of the case authorize such an issue to be presented and determined by the court. Section 633 of the code provides that, “in rendering judgment of foreclosure, the court shall order the mortgaged premises, or so much thereof as may be necessary, to be sold to satisfy the mortgage and costs of the action.” Where a complaint is filed for the foreclosure of a mortgage upon which there shall be due any interest, or installment of the principal, and there are other installments not due, the court is required to ascertain whether the property can be sold in parcels, for the purpose of determining the proper decree to be, rendered in the case. 2 G. & H. 295, 296, secs. 637, 638, 639. But when the whole sum secured by the mortgage is due, no such question can be properly presented to the court. See Harris v. Makepeace, 13 Ind. 560; Smith v. Pierce. 15 Ind. 210; Benton v. Wood, 17 Ind. 260. If the land consists of separate parcels, it is the imperative duty of the sheriff) under the statute, to offer the parcels separately; and if it consists of a single tract or body, and is susceptible of division without injury, and the sale of the whole is not necessary to satisfy the execution, he is required to divide it, and to offer at one time only so much of it as may be necessary to satisfy the judgment, interest, and costs. W e think the answers were bad. If the decree of foreclosure is a valid one, still, as the sale by the sheriff' is void, the appellant has the right to redeem, and it is shown by the complaint that the sum tendered was sufficient to satisfy the judgment, interest, and costs.

«7. L. Ketcham, J. L. Mitchell, T. A. Hendricks, O. B. Hord, and A. W. Hendricks, for appellant. F. Rand, R. H. Hall, and A. Seidensticker, for appellee's.

Judgment reversed, with posts, and the cause remanded, with directions to the Circuit Court to sustain the demurrers to the answers, and with leave to both parties to amend their pleadings.