No. 12,268 | Ind. | Jun 4, 1886
Appellant, Shannon, the defendant below, assigned as error upon the record of this cause, that the trial court had erred in its conclusion of law upon its special finding of facts.
The facts found specially by the court were in substance as follows:
The appellee, Hay, on January 13th, 1865, made the following note and mortgage to the State of Indiana, to wit: Here follows what purports to be the copy of a mortgage
The only proof that the notices were posted in the township, in which the land was situate, was the following certificate of Louis Hay, then the sheriff of Vigo county, but since dead, who was requested to post such notices by the then auditor of Vigo county: Setting out what purports to be a copy of such sheriff’s certificate.
Newton Rogers, treasurer of Vigo county, made the following certificate, which was signed by him and the auditor of such county, and recorded in the auditor’s office and filed in the treasurer’s office: Here follows what purports to be a copy of such certificate.
Before the commencement of this suit appellee did not make, nor had he made at any time since, any tender of the amount due on such note and mortgage. The tract of land so mortgaged contained 152 acres, consisting of three “full forties ” and a “ fractional forty,” in the northwest quarter of section 20, township 13, range 9 west, in Vigo county, Indiana, and was of the value of $5,000.
The county auditor offered such land as follows : “ Who
Such land was susceptible of division, and might have been sold in parcels, without injury to the whole; and the land was not offered in parcels, except as aforesaid. The county auditor, after having executed the following deed to Patrick Shannon, recorded the same in the proper order-book of the county commissioners, and afterwards delivered the same to said Patrick Shannon. Here follows what purports to be a copy of such auditor’s deed to Patrick Shannon.
Upon the foregoing facts the court stated as its conclusion of law, that the sale of such land was illegal and void, the land not having been offered in parcels, as required by law.
Did the trial court err in its conclusion of law upon the facts specially found? We are of opinion that this question must be answered in the affirmative. This is not a case where-the officer selling the land is required to offer and sell the land in separate and distinct parcels ; unless, indeed, it appears on the face of the mortgage that several separate and distinct parcels, lots or parcels of land are described therein. In this latter case, the statute expressly requires that the auditor shall elect in advance of the sale which one of the several-lots or tracts shall be first sold, “ saving to the mortgagor, if .practicable, the tract on which his house is located; ” and in such case, of course, the auditor must sell in parcels. Benefiel v. Aughe, 93 Ind. 401" court="Ind." date_filed="1884-02-20" href="https://app.midpage.ai/document/benefiel-v-aughe-7046784?utm_source=webapp" opinion_id="7046784">93 Ind. 401; section 4392, R. S. 1881.
In the case in hand, however, the land in controversy was described as an entirety, or as one single tract or lot, in appellee’s mortgage to the State, as follows : “ That part of the
The facts found by the court in this case show, we think, •that the land in controversy was offered and sold by the auditor of Vigo county, in so far as the mode of crying the sale is concerned, in substantial compliance with the requirements of the statute. Therefore, it follows that the court ■erred in its conclusion of law, and for this error the judgment below must be reversed. The facts of the ease have ■been so imperfectly found, and so many matters of evidence merely, in lieu of the facts which such evidence would possibly tend to prove, are erroneously set out in the special finding of facts, that we can not remand the cause with instructions to state other conclusions of law upon such special •finding, but must instead remand the same for a new trial.
Besides, the appellee has sued in this case to have his title •to the land in controversy quieted, as against appellant, by the decree of the court. When, therefore, the trial court found, as it did, that the appellee had never, at any time, before or since the commencement of his suit, paid or tendered to appellant the amount paid by him in satisfaction of appellee’s note and mortgage and interest thereon, we are of •opinion that the court ought to have promptly dismissed the suit at appellee’s costs. For, however erroneous the auditor's sale and conveyance of the land to appellant may pos
The judgment is reversed with costs, and appellant’s death having been shggested, upon the petition of Thomas A. Anderson, administrator of such decedent’s estate, he is substituted as the appellant in this cause, and this judgment is rendered in his favor.