7 Ind. 189 | Ind. | 1855
The object of this suit was to set aside, as fraudulent and void, a sale and conveyance of real estate, made by the sheriff .of Henry county. Reed and Shelly, the latter being the sheriff, and the former the sheriff’s vendee, were the defendants below. Upon demurrer to their answer to the complaint, a decree passed in favor of Diven, the appellee.
The facts admitted and set up by the answer are substantially these:
Reed, on the 5th of July, 1854, recovered a judgment in the Wayne Common Pleas against Diven for 177 dollars. A transcript of this judgment was, on the 2d of August following, filed in the clerk’s office of the Henry Circuit Court, and, at that date, became a lien on Diverts land. The judgment had been rendered without relief from appraisement laws, and upon it an execution was issued, which, on the 2d of February, 1855, was placed in the
On the 2d of March, 1855, the sheriff, having then in his hands executions in favor of Nancy Diven, Thomas Morris, and Ball and Davis, which had been levied on said lands, offered the whole of them for sale in one body, on Reed’s execution, and not on the other executions, and then sold the whole to the said Reed for 51 dollars, with
On the 15th of March, 1855, the sheriff, pursuant to the above sale, executed a deed to the purchaser, whereby it appears that the lands were duly advertised; that the rents and profits for seven years were first offered; and that the sheriff’s sale and conveyance were made subject to all antecedent liens. Before the sheriff executed the deed, viz., on the 7th of March, 1855, Diven notified the sheriff that the lands were not legally sold, and at the same time protested against his making a conveyance to the purchaser; and before the institution of this suit he tendered said purchaser 51 dollars, the amount for which he bid off the land. Prior to the sale, viz., on the 12th of October, 1854, the land in question was offered on various executions, in favor of Ball and Davis and others, both in a body an separate parcels; but no bid could be obtained effected. 1
It is alleged that the lands constitute one farm a® not in separate tracts.
We have a statute which provides that “real taken by virtue of any execution, shall be sold at p auction,” &c., “and if the estate shall consist of separate 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 is not susceptible of division.” 2 B. S., p. 141, s. 466. This provision imposes a duty on the sheriff which he may not omit. The property levied on, being divisible, he is restricted from offering more of it than may be necessary to discharge the debt in his hands for collection. It may, it is true, require the entire tract to satisfy the execu
It is said in argument that “ Reed’s execution was not satisfied. If the whole of the land sold did not satisfy it, a fortiori a part could not.” This reasoning does not fairly apply to the case. Many persons, upon consulting their means of payment, may have desired to purchase the eighty acre tract and the forty acre tract not included in Goodwin’s mortgage, when the entire land, with that incumbrance resting upon it, was not within their reach. The two parcels just named are admitted to be worth 2,000 dollars. Including Powell’s mortgage, the liens upon them amount to no more than 1,000 dollars. Now, it is within the range of probability, that more persons would desire the one hundred and twenty acres at the latter amount, than would bid for the whole tract at 7,000 dollars; and it may be that the offer of so large an amount of property in a body, for the payment of so small a debt, threw distrust over the transaction, prevented prudent persons from bidding at the sale, and that thereby Reed, the purchaser, was left without competition, when an offer to sell in separate parcels would have avoided the fear of illegality in the sale, and brought the amount within the reach of bidders.
It is said, also, that to bring the sheriff in default for selling an entire body of land without first offering it in
It appears that the sheriff, at the time of the sale, represented that Goodwin's mortgage covered all the land then offered, and that the execution of Ball and Davis was an incumbrance prior to that of Reed's execution. These representations were untrue; and whether they were the result of misapprehension or mistake, does not vary thé case. In relation to this point we adopt the argument of the appellee:—“The sheriff assumed to know the facts and gave information on the subject; but whether he knew his statements to be false or not, the effect on the sale and the interest of Diven was the same.” They were calculated to make a false impression on the minds of bidders, and operate as a fraud upon the execution-defendant.
The demurrer was, no doubt, properly sustained, and the decree of the Circuit Court setting aside the sheriff’s sale, must be affirmed.
The judgment is affirmed with costs.