Davis v. Campbell
| Decision Date | 26 May 1859 |
| Citation | 12 Ind. 170 |
| Parties | Davis v. Campbell and Others |
| Court | Indiana Supreme Court |
From the Randolph Court of Common Pleas.
The judgment is reversed with costs. Cause remanded with instructions to set aside the sale.
J Brown, W. A. Peele and E. L. Watson, for the appellant.
S Colgrove, T. M. Browne and J. J. Cheney, for the appellees.
Complaint to set aside a sheriff's sale. Answer by the defendant. Trial by the Court. Judgment for the defendant.
The complaint alleged that the property sold was a house and lot that the judgment did not direct a sale without appraisement; that no appraisement of the rents and profits was made, though they were offered for sale; that no bid being obtained upon the offer, the fee simple of the property was sold; that while the levy was pending and before the sale, the plaintiff offered other and personal property to the sheriff, and requested that it should be taken, which offer the sheriff disregarded.
The answer denied the complaint. The evidence is upon the record. A motion for a new trial was denied.
The allegations of the complaint were clearly proved. There is no question upon the weight of conflicting evidence, or upon the point as to whether that given proves the allegations of fact in the complaint. The question is one of law alone.
There are two classes of actions in which questions upon the validity of sheriff's sales arise--
1. Those instituted directly for the purpose of setting aside the sale.
2. Those not thus instituted, but in which the question arises collaterally; as in a suit to recover possession of the property sold.
The rules applied in the two classes are different.
A sale will be set aside as erroneous, in a direct proceeding for that purpose, when it would not be held void in a collateral suit.
The Court below seems to have been governed, in deciding this case, by the rules applied in cases where the question arises collaterally. In this, the Court acted upon a wrong principle.
This suit before us is a direct proceeding to set aside a sheriff's sale. And the question is--Was it substantially erroneous?
The code provides that, in cases like the present, property of the execution-defendant shall not be sold without appraisement. 2 R. S. p. 137. It further expressly provides that the rents and profits of real estate shall be governed by this provision--in other words, that they shall not be sold...
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