Guerin v. Kraner, 11,333

• Citation: 97 Ind. 533
• Case Date: October 15, 1884
• Court: Supreme Court of Indiana

97 Ind. 533

Guerin et al. v. Kraner

No. 11,333

Supreme Court of Indiana

October 15, 1884

From the Henry Circuit Court.

Reversed with costs, with instruction to sustain the demurrer to the complaint.

J. H Mellett and E. H. Bundy, for appellants.

J Brown and W. A. Brown, for appellee.

OPINION

Hammond, J.

Action by the appellee against the appellants to set aside a sheriff's sale of real estate. Appellants demurred to the complaint for want of facts, and their demurrer being overruled, they answered by the general denial. Trial by the court; finding and judgment for the appellee.

The appellee alleges, in her complaint, that she is the owner of certain described real estate; that appellant Guerin obtained judgment against her in the Henry Circuit Court; that he caused an execution to be issued on said judgment, and to be levied upon said real estate; that he purchased the real estate at sheriff's sale for $ 120, and that after the expiration of the year for redemption he obtained a sheriff's deed. The sheriff was made a party defendant, and is one of the appellants. The grounds upon which the appellee asks to have the sale set aside are stated in her complaint as follows:

"The plaintiff further avers that the judgment upon which said execution was issued was rendered upon a cause of action founded upon contract, and that the plaintiff was, at the time of the rendition of said judgment, and always continued thereafter to be, a resident householder of the State of Indiana; that said real estate was at the date of said execution, and still is, of the value of $ 700, and it was then and still is incumbered by mortgage in the sum of $ 600; that she did not, at the time of the issuing of said execution, own more than $ 280 worth of real and personal property, including the above described real estate, after deducting the said incumbrance; that she was entitled to have exempted and set off to her the real estate above described as exempt from said execution; that she made out and delivered to the sheriff a schedule of all of her real and personal estate within and without the State, which said schedule was duly verified in due form of law, and she selected an appraiser and demanded that said property be set off to her, or so much thereof as she was entitled to as such resident householder; that said schedule and inventory of property complied in all respects with the law making a schedule and inventory a condition precedent to the right to have property exempt from execution by resident householders; that said sheriff took said inventory and schedule and made no objection to the substance or form thereof, but disregarded his duties in that respect and sold said property to his co-defendant, and refused to pay the plaintiff any portion of the purchase-money, but paid the same over to the judgment plaintiff, and entirely disregarded the plaintiff's claim of exemption.

"The plaintiff further avers that the said sheriff never demanded any property of her, nor served said execution upon her. She further avers that the said sheriff and said Guerin, for the purpose of preventing said property from bringing more money, and for the purpose of preventing persons from becoming bidders at said sheriff's sale, announced and proclaimed at said sheriff's sale that whoever bought said property would take it subject to a lawsuit by the plaintiff, and would take it subject to whatever claim the plaintiff had, if she had any, thereon."

Before a debtor is entitled to the...