30 Ind. 332 | Ind. | 1868
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
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 con
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
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.
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.