Coan v. Elliott

• Decision Date: 08 April 1885
• Docket Number: 11,557
• Citation: 101 Ind. 275
• Parties: Coan v. Elliott
• Court: Indiana Supreme Court

101 Ind. 275

Coan v. Elliott

No. 11,557

Supreme Court of Indiana

April 8, 1885

From the Knox Circuit Court.

J. C Denny, for appellant.

T. R Cobb and O. H. Cobb, for appellee.

OPINION

Colerick C.

This action was brought by the appellant to recover the possession of certain real estate. The complaint was in the ordinary form prescribed by the statute in such cases. An answer of general denial was filed. The issues were tried by the court and resulted, over a motion for a new trial, in the rendition of a judgment in favor of the appellee. The only error assigned by the appellant for the reversal of the judgment is the ruling of the court below upon the motion for a new trial.

It appears by the evidence, which is in the record, that Charles Grimes, on the 3d day of March, 1876, recovered a judgment against the appellant, in the Knox Circuit Court, for $ 592.55, upon which an execution was duly issued, and to satisfy it the sheriff levied upon the real estate in controversy, as the property of the appellant, and sold the same to said Grimes, who paid the purchase-money therefor and obtained from the sheriff a certificate of purchase, which he afterwards assigned to Sarah Grimes, who, as the owner and holder thereof, received from the sheriff, after the time allowed by law for the redemption of the property from said sale had expired, a deed of conveyance for the property, and she subsequently sold and conveyed the same to the appellee.

It is insisted by the appellant that the evidence shows that the sale so made by the sheriff was void:

1st. Because the property was not properly described, or sufficiently identified by the sheriff in his levy of the execution, as shown by his return indorsed thereon.

2d. Because the property was not sufficiently described in the sheriff's deed.

3d. Because the property was sold by the sheriff without an appraisement of the rents and profits thereof, or an offer to sell the same for a period not exceeding seven years.

As to the first and second objections presented by the appellant to the validity of the sale, it is sufficient to say that the property which was levied upon and sold by the sheriff to satisfy the judgment, was described by him, in his return to the execution and in his deed to Sarah Grimes, exactly the same as it was described in the deed of conveyance to the appellant, and upon which the appellant solely relied, on the trial of the action, to establish his title to the property and his right to its possession. If the description was so radically defective as to destroy the validity of the sheriff's levy and deed, as contended by the appellant it also, for the same reason, rendered his deed void, and, therefore, the finding and judgment of the court below was correct, as the burden of proof rested upon the appellant to prove the truth of the averment in his complaint, that he was the owner of the property and entitled to its possession. In cases like this, if the plaintiff fails to show title and right of possession in himself, he can not recover in the action, although the defendant has no title to the property and is not entitled to its possession. Mull v. Orme, 67 Ind. 95; Deputy v. Mooney, 97 Ind. 463. Because, in such cases, the plaintiff's right to recover depends upon the strength of his own title, and not on the weakness...