Amory v. Reilly

• Decision Date: 27 November 1857
• Parties: Amory v. Reilly and Others
• Court: Indiana Supreme Court

9 Ind. 467

Amory v. Reilly and Others

Supreme Court of Indiana

November 27, 1857

Appeal from the Vanderburgh Circuit Court.

The judgment is reversed with costs.

Asa Iglehart, for appellant. ^[1]

James G. Jones, for appellees.

OPINION

Davison J.

Amory brought an action against Reilly, Elliott, Burtis, Allis, and Howes, upon a promissory note for the payment of 437 dollars. The note bears date October 3, 1853. It was payable to one Mortimer Turner, and by him assigned to the plaintiff. Defendants, in their answer, aver that the note was given for a part of the purchase-money of certain real estate which they, at its date, bought of Turner, the assignor. They allege a partial failure of consideration, and state the facts upon which they base the alleged failure. The facts stated are these: Formerly the real estate, being a tract of land in Vanderburgh county, was owned by one Douglas, who sold it to Andrew Kinnard and William Ewing for 1,200 dollars, of which sum they paid in hand 460 dollars, and executed their promissory note for the residue: and thereupon, Douglas gave them a bond for a deed upon payment of the note. Kinnard and Ewing failed to pay, and Douglas instituted a suit against them in chancery, in the Vanderburgh Circuit Court, to subject the land to the payment of the residue of the purchase-money. The record of that suit shows that Kinnard and Ewing, the then defendants, being non-residents, were duly notified by publication; that the cause, at the September term, 1837, was continued, but at the same term the continuance was set aside; that the defendants were called and regularly defaulted, whereupon, the Court decreed, inter alia, that said real estate be sold by the sheriff; that the proceeds of the sale be applied in payment of 787 dollars, then found due; that such sale being made, he, the sheriff, make a deed in fee simple to the purchaser; and that from thence, all the estate, both legal and equitable, of the defendants, in and to the premises shall forever cease, determine, and be foreclosed.

Pursuant to the decree, the sheriff, on the 7th of July, 1838, exposed the land for sale, and on that day sold it to Francis Amory for 760 dollars, and thereupon made him a sheriff's deed.

At the time the land was sold, Douglas's claim, with the addition of interest from the date of the decree, was 823 dollars, upon which he received from the proceeds of the sale, after paying costs of suit and sheriff's cost, 717 dollars, leaving 106 dollars, a balance of purchase-money, due and unpaid. Amory, the sheriff's vendee, on the 24th of August, 1841, sold and conveyed the land to one Samuel Turner, who afterwards conveyed it to the said Mortimer Turner. And he, Mortimer, having sold the same to the defendants in this suit, and having received their note, being the note sued on, made them a deed, whereby he covenanted that he was lawfully seized, etc.; that the premises were unincumbered; and that he would warrant and defend the same against all claims. Defendants aver that the 106 dollars of unpaid purchase-money, with interest from the date of the sheriff's sale, making the aggregate sum of 216 dollars, is a lien on the land, and for that amount, they say the consideration of the note in suit has failed.

The record shows that Douglas was made a party, and that he appeared and answered. In his answer, he sets up substantially the same facts stated in the above answer avers that he is entitled to a lien on the land for 216 dollars, as before stated; says he holds the legal title to the premises, but offers to convey upon the payment of the lien. To this, which is in form a counterclaim, the plaintiff answered, in effect, that Douglas having procured the decree and sale under it, is estopped from setting up title to the property in question, or enforcing a lien for the alleged balance of purchase-money. Douglas replied that the sheriff had not sold or conveyed (nor did the decree require him to sell) the title or interest of him, Douglas, in the land, or anything more than the interest of the said Kinnard and Ewing. The plaintiff demurred to the defendant's answer, and also to the reply of Douglas; but his demurrers were overruled. And, thereupon, it was adjudged by the Court that, as to 216 dollars, part of the plaintiff's demand, he take nothing by his suit, and that for the residue, 275 dollars, he recover judgment. And further, it was ordered that the defendants pay the 216 dollars to Douglas, and that upon such payment he convey the land by deed in fee simple to the...