Banks v. Bales

• Decision Date: 14 June 1861
• Citation: 16 Ind. 423
• Parties: Banks and Another v. Bales
• Court: Indiana Supreme Court

16 Ind. 423

Banks and Another v. Bales

Supreme Court of Indiana

June 14, 1861

APPEAL from the Hancock Common Pleas.

The judgment is affirmed, with costs.

N. B Taylor and G. Y. Atkison, for the appellants.

OPINION

Davison, J.

This was a proceeding by the appellee, who was the plaintiff against Chilton Banks, Allen Wallace, and Mordecai Millard, to set aside a sheriff's sale of real estate, and to annul a sheriff's deed made pursuant to the sale. The land in question is situated in Hancock county, and described as the east half of the north-east quarter of Section 19, Township 10, Range 8. Millard, one of the defendants, was the sheriff who made the sale, and deed, but the record fails to show that he appeared to the action. Banks and Wallace answered the complaint. The Court tried the issues, and found for the plaintiff; and, having refused a new trial, adjudged that the sale be set aside, and the deed be annulled, &c. The pleadings and evidence disclose these facts: Columbus Stephens, having recovered a judgment before a justice of the peace against Bales, the plaintiff, for $ 25 with costs taxed at $ 5.50, filed in the clerk's office of the Hancock Common Pleas, a transcript of said judgment, duly certified by the justice. On July 30 1858, an execution was issued on the said judgment, by virtue of which the sheriff levied upon the above described land; and on November 13, 1858, having first offered the rents and profits thereof, for seven years, and there being no bid, he offered the fee simple of the whole tract, and then and there sold the same to the defendants, Banks and Wallace, for $ 24.50; and they having paid the purchase money, received from the sheriff a deed for the premises. Before he commenced this suit, the plaintiff tendered to Banks and Wallace $ 44.50, the amount paid by them on their purchase; but it appears that he failed, when he filed his complaint, to bring the money into Court. There was evidence amounting to proof, that the land was worth, deducting all encumbrances, $ 500, and that the same was susceptible of division. The defendants, at the proper time, moved to dismiss the suit, on the ground that the money tendered by the plaintiff was not brought into Court. This motion the Court overruled, and the defendants excepted. If, to sustain this action, a tender was at all requisite, the money should have been deposited in Court when the complaint was filed. But we...