Branch v. Foust

Decision Date09 March 1892
Docket Number15,266
Citation30 N.E. 631,130 Ind. 538
PartiesBranch v. Foust et al
CourtIndiana Supreme Court

From the Madison Circuit Court.

Judgment affirmed.

R Lake, M. S. Robinson, J. W. Lovett and S. M. Keltner, for appellant.

C. L Henry and H. C. Ryan, for appellees.


McBride, J.

This was a suit by the appellant to recover the possession of certain land in Madison county.

The complaint was in two paragraphs. The first was in the ordinary form for the recovery of real property. The second was based upon a title derived through a sheriff's sale, and recited the recovery of a judgment by the appellant and another against the appellees, with all the necessary intervening steps up to and including the execution of a deed to the appellant by the sheriff.

The appellees answered by a general denial. Louisa Foust also filed a cross-complaint, which, in substance, alleges that she is, and for more than ten years has been, the owner in fee simple of the land in controversy; that on the 18th day of November, 1878, the appellant and one Charles E. Diven recovered a judgment before a justice of the peace against the appellee and her co-defendant for $ 91.25 and costs; that on the 5th day of May, 1886, a transcript of the judgment was filed in the clerk's office of the Madison Circuit Court; that on the 17th day of November, 1886, an execution was issued thereon by the clerk of said court, and placed in the hands of the sheriff of that county, who levied the same on said land, and advertised it for sale on the 19th day of February, 1887; that the land was by the sheriff sold on that day, the appellant being the purchaser, for the sum of $ 167.03; that the sheriff executed to the purchaser a certificate, and on the day of -----, 1888, executed to him a deed.

It is further averred that at the date of said sale the land was worth $ 4,000, and that prior to said levy and sale the sheriff made no demand upon Charles Foust, her co-defendant in said judgment, for property out of which to satisfy said judgment, although he had at the time in said county personal property subject to levy and sale worth more than $ 500. It is also averred that the cross-complainant had no knowledge of the sale of her said land until after the year for redemption had expired, and that the bringing of the suit for possession was the first notice or knowledge she had that her land had been sold. Also, that at the time of the sale she had and held a judgment in the Madison Circuit Court against the appellant for $ 245 and costs, being more than the entire amount of the judgment of the appellant upon which the sale was made.

It is also averred that the land sold was so situated that it could have been divided into tracts of five or ten-acre pieces, without injury, any five acres of which would have been sufficient to have fully paid said debt.

The cross-complaint also shows that on the 5th day of September, 1888, and within sixty days after the cross-complainant learned of the sale, she tendered to appellant the full amount of her bid on said land, with 8 per cent. interest to the date of the tender, but the tender was refused; that such tender has since been kept good, and concludes with a demand that the sale be set aside, and for a decree permitting her to redeem.

A demurrer to the cross-complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was overruled, and the appellant assigns this ruling as error.

The jury returned a special verdict, finding in substance the following facts:

The appellee Louisa Foust became the owner in fee simple of the land in controversy September 24th, 1873. The appellant and Charles E. Diven recovered a judgment against her and Charlest Foust on the 18th day of November, 1878, before a justice of the peace for $ 91.20, with 10 per cent. interest and $ 3.35 costs. An execution was issued November 30th, 1878, and returned January 13th, 1879, by the constable nulla bona.

May 6th, 1881, the justice prepared a transcript, which was filed and recorded in the clerk's office of Madison county May 5th, 1886. November 17th, 1886, an execution on the judgment was issued by the clerk of Madison county to the sheriff of that county. The sheriff demanded payment of the appellee Louisa, and also demanded personal property of her, both of which were refused, but he made no demand whatever upon her co-judgment defendant, Charles, although said Charles then owned and had upon the premises in controversy personal property, subject to the levy of said writ, worth more than $ 600. December 7th, 1886, the sheriff levied the execution upon the land, and, having duly advertised it, he sold it on the 19th day of February, 1887, to the appellant for $ 167.03, which was the exact amount then due on the writ. The jury find that the sheriff offered the rents and profits of the land in parcels, and, receiving no bids, he offered the fee simple in parcels, and, receiving no bids, he offered the fee simple of all. They do not find whether or not he offered the rents and profits of all, but the finding relative to the manner of offering and selling is against the appellee. The finding is full, showing the execution of a sheriff's certificate, the failure to redeem, and the execution of a sheriff's deed.

The jury also finds that the land was of the value of $ 3,200 at the time of the sale, and that its annual rental value was, and for five or six years thereafter had been, $ 240; that at the time the appellee was, and still is, in possession of the land, and that she had no actual knowledge or information of the levy of said execution on said land, or that it had been advertised or sold, until this suit was commenced and summons served upon her. They also find that the land was so situated that it could, without injury, have been subdivided and sold in four parcels, each worth $ 800. The finding also fully sustains the averment of the cross-complaint of the offer to redeem and tender of the money to the appellant, and that the tender had been kept good. It is also found that on the 2d day of July, 1886, the appellee Louisa recovered a judgment against the appellant for $ 245.40 in the Madison Circuit Court which was unsatisfied and unpaid at the date of the sale, and that on the 18th day of January, 1889, on a settlement being had between the appellant and said Louisa, which included the judgment last above referred to, but did not include anything involved in this suit, it was found and agreed that the appellant owed her a balance of $ 184.61.

The appellant insists that he was entitled to a judgment in his favor on the special verdict, and assigns as error the action of the circuit court in rendering judgment in favor of the appellee.

The questions presented by the two assignments of error will be considered together.

Appellant's contention is:

1st. In an action for the possession of land by one whose title is derived through a sheriff's sale, the validity of the sale can not be attacked by cross complaint.

2d. No fact is averred or found sufficient to render the sale void, and it is insisted that the attack thus made on the sheriff's sale is collateral, and can not succeed because of irregularities which might render the sale voidable, but do not render it void.

3d. No substantial objection is shown to the sale,...

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