82 Ind. 521 | Ind. | 1882
This action was brought by the appellees against the appellants, to set aside a sheriff’s sale of a quarter section of land in Madison county, Indiana.
A demurrer for the "want of facts was overruled to the complaint and this ruling presents the only question in the record.
The facts averred are briefly these: That James W. Sans-berry, one of the appellants, recovered a judgment in the
It is not averred that James McGraw had any property, and, if he had none, the failure of the sheriff to make a demand upon him for property will not invalidate the sale. The appellees do not claim that it will, but insist .that the failure to exhaust the residue of the property of William C. Flemming renders it invalid, and in support of this proposition cite the cases of Day v. Patterson, 18 Ind. 114, Sidener v. White, 46 Ind. 588, and Houston v. Houston, 67 Ind. 276. These cases do not decide the question here involved. They merely decide, that where a judgment is a lien upon two or more parcels of real estate, and one of them is thereafter sold, the judgment creditor will'"be restrained from selling such parcel until the residue of the land is sold, but do not decide that if such parcel is sold the sale is invalid. It is presumed to be the duty of the judgment debtor, as between himself and his vendee, to pay the judgment, and if he retains any of the property encumbered by it, a court of equity will, without impairing the
The deed being regarded as fraudulent and void, it follows ' that the appellees who claim through it can not question the legality of the sale.
It is said, however, that, as Sansberry was the execution creditor, he is charged with notice of all irregularities in the sale. This is true, but he is not charged with notice of an unrecorded deed.
The complaint was insufficient and the demurrer should have been sustained.
Per Curiam. — It is therefore ordered, that the judgment be and it is hereby in all things reversed, at the appellees’ costs, with instructions to sustain the demurrer to the complaint.