Shanklin v. Sims

110 Ind. 143 | Ind. | 1887

Elliott, C. J.

The appellant brought this suit to enjoin the appellees from selling land on execution. The facts pleaded in the third paragraph of the appellees’ answer are substantially these: Enos Harshman owned two tracts of land on the 6th day of March, 1873; on that day the judgment under which the appellees are proceeding was rendered against him, and on the 5th day of February, 1883, an execution was levied on one of the tracts of land. After the levy the Farmers Bank of Frankfort obtained an injunction prohibiting the sale of the parcel of land, of which it claimed to be the owner, and this injunction is still in force. On the 17th day of October, 1883, the appellee Sims obtained another execution, and caused it to be levied on the parcel of land not claimed by the Farmers Bank.' It is the sale on that execution which the appellant seeks to restrain.

The contention of the appellant’s counsel is, that the lien of the judgment expired prior to the levy, as more than ten years had elapsed since the judgment was rendered. This contention rests upon the provisions of section 608 of the code. The answer of the appellees to the appellant’s argument is, that the appellee was prevented from enforcing his judgment by an injunction. The appellant, in turn, responds to this argument of the appellees, by asserting that the prohibition did not operate upon the land now sought to be subjected to the lien of the judgment.

The trial court erred in overruling the demurrer to this answer. The injunction obtained by the Farmers Bank restrained the appellee from selling land owned by the bank, and as the injunction is averred to be still in force, it must be inferred that the execution was wrongfully levied on the land of a third person, so that the injunction did not restrain the collection of the judgment, but simply restrained the appellee from selling a particular parcel of land under it, not -owned by the judgment debtor. We regard the answer as bad for another reason, and that is this: Where a plaintiff levies on land, and insists upon his levy, despite an injunction obtained by a third person, he can not, after the lapse of ten years, enforce the lien of his judgment against another parcel of land, but takes the risk of his lien expiring under the provisions of the statute. During the time he was asserting his right to hold the land levied upon, he could not rightfully issue a second execution and seize other lands, without showing that the first levy was unavailing. McIntosh v. Chew, 1 Blackf. 289; McCabe v. Goodwine, 65 Ind. 288 (297); McIver v. Ballard, 96 Ind. 76. At all events, the appellee, in maintaining his levy and failing to have it promptly disposed of, incurred the risk of losing his lien, at least as against a mortgagee or purchaser.

Filed March 19, 1887.

A party who claims as owner or mortgagee of land, levied on under a judgment which is not a lien on it, may maintain .a suit for injunction. Bishop v. Moorman, 98 Ind. 1 (49 Am. R. 731).

The fourth and fifth paragraphs of the answer are good as argumentative denials.

For the error in overruling the denuyrer to the third paragraph of the answer the judgment is reversed.