21 Ind. 144 | Ind. | 1863
Action by Rawley against Hooker to recover possession of certain real estate. Judgment for the defendant., The facts are, that the land belonged originally to the
As no appraisement laws existed at the date of the notes, it is clear that the sale was properly made without appraisement,‘unless the judgment, being rendered in the ordinary form, and not directing collection without appraisement, precluded the defendant from going behind it, and showing, by the record, that the case was such an one as authorized a sale without appraisement.
It is insisted, by the appellant, that, inasmuch as the judgment did not direct the collection without appraisement, a sale could not be validly made without appraisement; that the judgment merged the notes sued upon, and should have been collected in accordance with the appraisement laws in force at the time of its rendition.
Was it necessary that the judgment should have directed its collection, without appraisement, in order to give the plaintiff therein the benefit of the law in force at the date of the contracts? A proper answer to this question settles the whole case.
It may be observed, that at common law the practice was
The appraisement law in force at the date of the judgment in question was broad in its terms, and embraced such cases as the present. It provides that: “No property of any description whatever, either real or personal, shall be sold on execution, or by virtue of any other process issued by any officer of this State, for a less sum than its fair value at the time of such sale, after deducting all encumbrances thereon, except as hereinafter provided.” See act of February 11th, 1843, supra. This language embraces “ executions ” or other
Perhaps the officer holding the execution would not be required to look beyond the execution, and determine at his peril whether he should sell with or without appraisement, but if he sells without appraisement, and it turns out that the sale was right, there can be no good reason for holding the sale void. Perhaps the better practice in such cases wohld be to procure an order of the proper court after the rendition of the judgment, directing the manner of sale, as was done in the case of Lane v. Fox, 8 Blackf. 58.
There are several cases decided in this Court that go upon the theory that, where a judgment is silent upon the subject of appraisement, evidence is admissible to show that it was rendered upon a contract entered into before the passage of
The argument is pressed upon our consideration that the judgment merged the notes upon which it was founded, and therefore that the parties were precluded from going behind it. To be sure, the notes were merged in the judgment, but it does not seem to us to follow'- necessarily that the parties could not go behind it in order to determine their rights in relation to the mode of collection as to appraisement. There are many cases that furnish clear analogies, and are in principal strictly in point. Thus in Johnson v. Fitzhugh, 3 Barb. Ch. R. 360, it was held that “ in ordinary cases, although a judgment technically changes the nature of the debt, it is still in fact the same debt which was due at the commencement of the suit; and if contracted previous to the institution of proceedings in bankruptcy, it will be barred by the discharge, when such discharge is obtained subsequent to the entry of the judgment.” In Wyman v. Mitchell, 1 Cow. 316, it was held that in an action of debt upon a judgment, rendered in the State of New York, the plaintiff was not estopped to show that the judgment sued upon was rendered on another judgment obtained in another State, which last mentioned judgment was obtained upon a contract made and to be performed there, before the passage of the insolvent laws of New York, in order to avoid the operation of those law's. In the ease last cited the Court cite another case, with the following remarks : “ The doctrine of merger is unconnected with the question. In, the matter of Wendell, 19 Johns. 153, judgment was rendered against the insolvent in 1816, on a note given in 1812. The discharge was in 1817. In this case
the case of Doe v. Crafts, supra, is cited by counsel for appellant, as sustaining bis view of the question involved. In that case a judgment was recovered in 1846, upon a note dated in 1845. The judgment did not direct collection without appraisement. Property was sold without appraisement. the purchaser to show bis title valid, offered to prove that the note on which the judgment was rendered was executed after the first day of June, 1843, and stipulated for a waiver of the appraisement laws. It was held that the evidence was inadmissible. That case is not at all in conflict with the conclusion arrived at in this, but harmonizes entirely with it.
If the facts offered to be proved were true and authorized a collection without appraisement, they made out such a case as entitled the plaintiff originally, by the express terms of the statute, to take judgment waiving appraisement, and be should have thus taken bis judgment. "We have seen, however, that in cases where notes were executed before the passage of the appraisement laws, there was no provision for taking such judgment.
There may be provisions in the code of 1852 that would authorize the rendition of judgments to be collected without
We are of opinion that there was no error committed, hence the judgment must be affirmed.
Per Curiam. — The judgment is affirmed, with costs.
Note. — Judge Hanna did not participate in the decision of the above entitled cause, because he had been of counsel therein. This cause was decided on May 27, 1862, and a petition for a rehearing was thereafter filed, which was overruled in January, 1863, and the cause was, by mistake, omitted from 19 Ind. R.