Sowles v. Harvey

20 Ind. 217 | Ind. | 1863

Perkins, J.

Suit to set aside a Sheriff’s sale. Demurrer to the complaint sustained. Einal judgment for the defendant.

The complaint makes the following case: In February, 1861, Soioles and wife obtained in the Hendricks Circuit Court, a judgment, upon foreclosure of a mortgage, of about 575 dollars. The defendant in that judgment was insolvent except as to the mortgaged property. Ten days after the adjournment of the term at which the judgment was ren-' dered, the Clerk of the Court, without an order from either of the plaintiffs, issued an 'order of sale upon the judgment, upon which the Sheriff, on the 27th of April, two months after the rendition of the judgment, having first duly advertised, sold the mortgaged premises to Harlan Harvey, the father-in-law of the execution defendant, for 165 dollars, that being the highest sum bid. The execution plaintiffs were neither of them at the sale, though it appears that they were residents of the State. It is alleged that the property sold was actually worth 600 dollars. Harlan paid the money on his bid to the Sheriff, and received a deed for the land on the 80th day of April, 1861. There is no fact alleged showing that Harlan was not a bona fide purchaser. On the 29th of October, 1861, the plaintiffs, having first tendered to Harlan his purchase money and demanded a re-conveyance of the land, commenced this suit to set aside the Sheriff’s sale.

B. B. Moffatt, for the appellants. ■ Sol. Blair, for the appellee.

The Clerk erred in the case, in issuing the order of sale without the direction of the judgment plaintiffs, or one of them; but a bona fide purchaser would not be prejudiced by the error. He would have the benefit of the presumption that the officer had done his duty. Lewis v. Philips, 17 Ind. 108. The difference between the sum bid for the property at the sale and its actual value, was not so great as to, per se, render the sale void. Swope v. Ordery, 5 Ind. 213. See the cases in Davis’ Ind. Dig., p. 537.

Per Curiam.

The judgment is affirmed, with costs.