Bishop v. Moorman

• Citation: 98 Ind. 1
• Decision Date: 17 October 1884
• Docket Number: 11,632
• Parties: Bishop v. Moorman et al
• Court: Indiana Supreme Court

98 Ind. 1

Bishop v. Moorman et al

No. 11,632

Supreme Court of Indiana

October 17, 1884

From the Jay Circuit Court.

Judgment reversed, with instructions to overrule the demurrers to the complaint.

D. T Taylor, J. M. Smith and T. Bailey, for appellant.

J. M Haynes, W. A. Thompson and J. W. Thompson, for appellees.

OPINION

Elliott C. J.

The complaint of the appellant alleges that the sheriff is about to levy upon lands owned by him an execution issued upon a judgment rendered against other persons, and in an action to which he was not a party. The prayer is for an injunction restraining the sheriff, one of the appellees, from selling the land.

The appellant contends that his land can not be sold upon a judgment and execution against other persons, and that he is entitled to an injunction restraining the sheriff from selling, for the reason that the sale would cast a cloud upon his title. The appellees' position is that no case for injunction is made because the sale would be void, and a void sale would not cloud the title.

It is perfectly clear that the appellant's land can not be sold to pay somebody else's debt, but it does not follow from this that he has no right to enjoin the sheriff from selling his land. There can be but little, if indeed any, doubt at all, that under our decisions a case is made for an injunction, for they uniformly hold that a land-owner may restrain an officer from doing, under color of official authority, an act that may injure the marketable value of his title by clouding it. This principle has found most frequent application in cases of threatened sales for taxes, and the uniform ruling in such cases has been that a sale for a tax absolutely void will be enjoined. Greencastle Tp. v. Black, 5 Ind. 557; Riley v. Western Union Tel. Co., 47 Ind. 511; Abbott v. Edgerton, 53 Ind. 196; City of Delphi v. Bowen, 61 Ind. 29; Morrison v. Bank of Commerce, 81 Ind. 335; Toledo, etc., R. R. Co. v. City of Lafayette, 22 Ind. 262; Hamilton v. Amsden, 88 Ind. 304; Eversole v. Cook, 92 Ind. 222; Goring v. McTaggart, 92 Ind. 200. We have a great number of cases holding that void assessments for ditches, gravel roads, and the like, may be enjoined, and there are many cases holding that the enforcement of a void judgment may be prevented by injunction. It is impossible to distinguish in principle between cases of the character to which we have referred and such a case as the present, and they should be regarded as decisive of the question here at issue, but we have cases even more closely resembling the present. In Shaw v. Williams, 87 Ind. 158 (44 Am. R. 756), it was held that a sale upon an illegal notice might be enjoined, and in Dyer v. Armstrong, 5 Ind. 437, it was said: "Sales may be restrained in all cases, where they are inequitable." An injunction will lie to restrain the collection of a judgment obtained without notice. Grass v. Hess, 37 Ind. 193.

The sale of land under color of judicial process is more than a mere fugitive trespass; it is the assertion of a permanent right to the land and a full denial of the owner's title, and the rule is, that where there is an assertion of a permanent right to land the owner may maintain injunction if the right asserted is unfounded. Erwin v. Fulk, 94 Ind. 235; Kyle v. Board, etc., 94 Ind. 115. An assertion of a right to seize land, when made under color of official authority, clouds title, and it has always been a well recognized equity doctrine that injunction will lie to prevent clouds from being cast upon an owner's title. It is true that there are decisions of other courts holding that where the act, though done under color of authority is void, no cloud is created, and, therefore, injunction will not lie; but the theory of our cases has always been that a void act, when done under apparent legal authority, does cloud title. This rule is supported by weighty authority, and is a reasonable one. It can not be doubted that a man's title is, as to its marketable value, injured by the deed of a sheriff conveying it to some one else, and a man having a title is entitled to it in all its vigor and value. No reason in law or morals can be found that will justly support the position of one who resists an injunction, where he concedes he is acting under color of authority, but in fact has none, and is using that authority to seize and sell without right, or the semblance of justification, the land of another. No one, we suppose, doubts that a property owner may quiet his title against an apparent claim, though it be never so empty, and if he may do this, surely he may be injunction prevent that apparent claim from clouding his title, without delaying until it has assumed that shape.

An able author has given this subject careful consideration, and he fully sustains the doctrine which has found favor from this court. In speaking of the opposite view, he says: "While this doctrine may be settled by the weight of authority, I must express the opinion that it often operates to produce a denial of justice. It leads to the strange scene, almost daily, in courts, of defendants urging that the instruments under which they claim are void, and therefore that they ought to be permitted to stand unmolested; and of judges deciding that the court can not interfere because the deed or other instrument is void; while from a business point of view, every intelligent person knows that the instrument is a serious injury to the plaintiff's title, greatly depreciating its market value; and the judge himself, who repeats the rule, would neither buy the property while thus affected, nor loan a dollar upon its security. This doctrine is, in truth, based upon a mere verbal logic, rather than upon considerations of justice and expediency." 3 Pomeroy Eq., sec. 1399.

It is argued that the appellant's legal remedy is perfect and complete, and therefore he has no right to ask the assistance of a court of equity. This entire argument rests on an undue assumption. The law, using that term in a limited sense and as opposed to equity, furnishes no remedy for quieting title. One in possession could secure a decree quieting title only from a court of chancery, and never from a court of law; in such cases no remedy at all was obtainable from the common law courts. An action of trespass might give damages, but it could not clear title. There is, therefore, no adequate legal remedy. The rule upon this subject is thus stated by the Supreme Court of the United States: "It is not enough that there is a remedy at law; it must be plain and adequate or in other words, as practical and efficient to the ends of justice, and its prompt administration, as the remedy in equity." Watson v. Sutherland, 5 Wall. 74. In many cases this rule has been adopted and enforced by this court. English v. Smock, 34 Ind. 115 (7 Am. R. 215), vide opinion p. 124; Elson v. O'Dowd, 40 Ind. 300, vide opinion p. 302; Clark v. Jeffersonville, etc., R. R. Co., 44 Ind. 248; Thatcher v. Humble, 67 Ind. 444; Spicer v. Hoop, 51 Ind. 365, see p. 370; Bonnell v. Allen, 53 Ind. 130. The principle involved in the rule stated has been carried much further than it is necessary for us to carry it in this case. Thus,...