3 Ind. 101 | Ind. | 1851
Blachley, Strong, and Simpson sued William P. Wright in assumpsit upon two promissory notes. Wright pleaded the general issue, and a want of consideration. Issues of fact were formed. The cause was submitted to the Court upon the following statement:
“ It is agreed in this casé that the defendant executed and delivered said notes to said plaintiffs, as in the declaration mentioned; that said notes were given as follows : On the 12th of March, 1841, one Eden Bedes, who was the owner in fee of the lands described in the defendant’s plea of want of consideration, being indebted to the plaintiffs, gave them his notes for 136 dollars, upon which they afterwards, on the 4th day of October, 1842, obtained a
The Court below gave judgment for the plaintiffs for the amount of the two notes in suit, and interest.
The appraisement preceding the sheriff’s sale above mentioned, not having been made pursuant to the law at the date of the contract between the plaintiffs below and Bales, was void. It was, in law, no appraisement. That sale must, hence, be treated as one made without an appraisement when the law required one, and, consequently, as void against Bales; Harrison v. Stipp, 8 Blackf. 455; and, perhaps, as against the defendant, Wright, though as to this we need not decide. The plaintiffs below, therefore, when they made the contract of sale of the lands in question, to said defendant, may have had no title; and the defendant insists, as the ground of his defense of want of consideration, that such is the fact.
A man cannot sell and convey that to which he has no title; but that a contract for the conveyance to another at a future day, of property to which the seller, at the time of such contract, has no title, is valid, is decided in Hibblewhite v. McMorine, 5 M. and W. 462, and in Wilks v. Smith, 10 id. 355. The title-bond of the plaintiffs below, in this case, amounted, in substance, as we have said, but to such a contract. It contained no stipulation for possession; and, under such a bond, the obligee is not entitled to possession prior to receiving his deed. Holmes v. Schofield, 4 Blackf. 171.—Doe v. Brown, 7 id. 142.
But, again, said plaintiffs had a claim upon the land mentioned above, at all events, in the lien of their judgment. That lien they could enforce by a re-sale of the property, if the sale had was invalid. The deed which they had contracted to make would estop them from asserting that lien, and bind them to protect the grantee from it. The defendant below had purchased the land of the judgment-debtor subject to said judgment, and the
The judgment is affirmed, with 1 percent. damages and costs.
See ante, p. 83.