5 Ind. 487 | Ind. | 1854
Vantrees filed his bill in chancery setting forth that in Mcvrch, 1838, he had recovered in that Court
That in October, 1841, one Jones, for the use, &c., recovered against Dougherty, before a justice, a judgment for 72 dollars and 35 cents; and that on the 16th of December, 1841, a transcript was filed in the Circuit Court; and that, subsequently, there was a return of no goods found, &c.
The defendant Hyatt, and another, becoming interested in the Jones judgment, proceeded in April, 1849, by sci. fa., to procure execution against certain lots owned by Dougherty, and had execution accordingly.
At the sheriff’s sale they represented that the Van-trees judgment, and others to the amount of several hundred dollars, were liens on the lots prior to their judgment; that they intended to purchase the property as low as they could to save themselves; and that thus they deterred Van-trees and others from bidding.
That in addition to this, they specially promised Van-trees, before the ten years from the date of his judgment had expired, and when he was about to proceed to revive, that if he would not so revive they would pay off his judgment; and that trusting in such promise he had failed to revive.
That Hyatt and Hlphenstein purchased at sheriff’s sale three lots worth 1,000 dollars, for 120 dollars, and after deed by the sheriff to them, refused to pay Vantrees, alleging that his judgment was no lien on the property, and that they never had promised, &c.
The prayer is that the sheriff’s sale be set aside as fraudulent and void, and for relief, &c.
The issues formed by their answer are, that the lots were not of the value of 1,000 dollars, but only 200 dollars; that they did not promise to pay the Vantrees judgment; and that they did not make any representations to deter bidders.
On final hearing, the Court decreed the sale void, and ordered the lots to be again sold to the highest bidder, &c.
Hyatt prosecutes error.
The facts fully sustain the decree of the Court. We do
In this case, every fact put in issue by the answer, except perhaps the direct promise to Vcmtrees, is sufficiently proved by two witnesses. It is proved that the lots were worth from 1,000 dollars to 1,200 dollars; and that the representations were made as alleged, and that bidders were thus deterred, &c.
The sale was properly set aside; but we have some doubt about the order to pay the Vcmtrees judgment first, because the lien of his judgment was lost before the sale, not entirely without his fault. We think the order should be to pay the Jones judgment first, and then the Vcmtrees judgment.
In other respects, the decree is affirmed with costs.
Per Curiam.—The decree (with the exception above stated) is affirmed with costs.
