3 Ind. 384 | Ind. | 1852
Bill of complaint filed by the appellants on the 21st of February, 1850. The facts stated by the bill are as follows:
On the 22d of August, 1839, one Keirle, who is since deceased, recovered a judgment against David Patton for 886 dollars and 86 cents, and on the 18th of November, 1839, Elias L. Beard entered himself replevin-bail for its payment. In March, 1845, John Walker, as administrator of Keirle, obtained a judgment of revivor against Patton alone, without impleading Beard. Afterwards, the said administrator sued out a scire facias upon said judgment against Patton and Beard jointly, and in October, 1849, obtained a judgment of revivor against them both. No defense was made to either of these proceedings by scire facias, but the judgments of revivor were obtained with the consent of Patton and Beard. An execution was issued on the last-named judgment of revivor, and was levied on lot No. 52, in the town of Lafayette, as the property of Beard.
On the 20th of September, 1844, Beard mortgaged the lot above named to one Steinberger to secure the payment of 10,000 dollars. On the 9th of October, 1844, Beard made a second mortgage of the same property to Steinberger to secure a further debt of 5,000 dollars. This last mortgage also embraced another lot in the same town.
On the 8th of November, 1845, certain persons, assignees of Steinberger, filed a bill to foreclose said mortgages. A decree of foreclosure was rendered in November, 1847, and on the 15th of Apj'il, 1848, the appellants became the purchasers of all the property so mortgaged for the sum
The present bill is filed against Walker as administrator of Keirle, Patton, Beard, and the sheriff, and prays for a decree to restrain the defendants from proceeding to sell said property under the execution upon the judgment of revivor, and to free the property from all incumbrances arising from said judgments.
The defendants filed a demurrer, which the Court sustained, and the bill was dismissed.
We think the demurrer was correctly sustained, because the bill presents no ground for chancery jurisdiction. If the lapse of time had removed the lien of the judgments, and that is the only ground upon which relief could be afforded, the proper proceeding was a motion on the law side' of the Court, to have the levy set aside, if a sale under it would prejudice the complainants. Lasselle v. Moore, 1 Blackf. 226.
The decree is affirmed, with costs.
