Law v. Smith

• Decision Date: 23 May 1853
• Citation: 4 Ind. 56
• Parties: Law and Others v. Smith and Others
• Court: Indiana Supreme Court

4 Ind. 56

Law and Others v. Smith and Others

Supreme Court of Indiana

May 23, 1853

ERROR to the Pike Circuit Court.

The decree is reversed with costs. Cause remanded for further proceedings in accordance with this opinion.

S Judah and I. Blackford, for the plaintiffs.

J. G Jones, for the defendants.

OPINION

Perkins J.

Bill in chancery by the devisees of George W. Ewing, against the grantees of Hosea Smith and their assigns, to set aside conveyances of real estate made by said Hosea, as fraudulent. The title of the plaintiffs to the lands in question, rests upon sheriff's sales made under judgments against said Hosea and one Benjamin Rice, pursuant to which deeds were made to their devisor, one for a part of the premises, on the 17th day of February, 1825, and another for the remainder, on the 17th of February, 1826.

Answers, exhibits, and replications were filed, depositions taken, the cause heard on its merits by the Circuit Court, and the bill dismissed.

Several grounds are taken by the defendants in support of said decision.

They insist, in the first place, that the plaintiffs have no valid title to the lands in dispute, and hence, cannot sustain this bill, because the sales on execution, through which their pretended title is derived, were void.

The judgments upon which the execution-sales took place, were rendered in 1818, in suits on promissory notes, dated in 1816. On the 27th of June fi. fas. issued on the judgments, upon which the returns were: "Levied on the property of Benjamin Rice and Hosea Smith, July 30th, 1818, and execution and sale stayed by order of the plaintiff. July 23d, 1818."

Afterwards, and prior to December, 1818, Rice died, and said Hosea Smith was appointed his administrator.

At the June term, 1820, of the Circuit Court, "the said Court," the answer to the bill admits, "upon a scire facias issued upon each of said judgments, and served on said Hosea Smith, rendered a judgment of revivor." The judgments of revivor were in these words: In the first case, "On motion, it is ordered that the judgment heretofore rendered in this case be revived against Hosea Smith as administrator of Benjamin Rice, deceased, and against Hosea Smith, (the former judgment having been rendered against Hosea Smith and Benjamin Rice) and the defendants in mercy," &c.; in the second case, "The parties appeared, and, on motion, same orders."

On these judgments fi. fas. were issued, and levied upon real estate of Smith, "but too late to sell," and alias fi. fas. were issued, on which returns were made that the property levied on by the former fi. fas. was not sold for want of a buyer, accompanied by an appraisement amounting to 4,371 dollars and 66 cents. This was in 1821. A series of writs of venditioni exponas followed, till, upon one issued in 1823, a sale was effected of the real estate appraised, to Geo. W. Ewing, at 337 dollars and 37 cents. In 1825, a deed was made by the sheriff pursuant to the sale, and in the same year a further sale of other lands was made under executions on said judgments, to said Ewing, and, in 1826, a deed was executed by the sheriff purporting to convey the lands sold at that sale, to the purchaser. Both of the deeds from the sheriff were duly recorded.

No writs of venditioni exponas appear to have issued to compel a sale of the property taken by virtue of the first executions which were issued, in 1818, on the judgments; and it is claimed that said judgments have, therefore, from that time remained satisfied. The returns upon the executions of 1818 were, that they were levied "upon the property of Benjamin Rice and Hosea Smith," without designation of the kind, quantity, or value, and were accompanied by no other paper or memorandum that removed their uncertainty; and they were, therefore, void for uncertainty ^[1]. Further, a levy is but a prima facie satisfaction, and may be shown to have proved not an actual one. Doe v. Dutton, 2 Ind. R. 309. The subsequent proceedings by scire facias, show that the levies in this case did not prove actual satisfactions. Indeed, but a small portion of the judgments appears to have been ever collected.

It is also objected, that the judgments of revivor upon scire facias were void, and authorized no executions. They are copied above. They were informal, but, we think, not void. The record in each case, shows that the necessary party was notified, appeared, and had an opportunity to make any defence that might exist against the award of execution, and shows the judgment of the Court in the premises, that none such was shown to exist. A case was presented to the Court in which a formal judgment, instead of an order, should have been entered; and perhaps the same particularity would not be required in a judgment of revivor upon scire facias, that would be necessary in the original judgment.

But it is further urged, that said judgments, if good in form, could not authorize the sale of the real estate of either Smith or the heirs of Rice, because said heirs were not made parties, in either case, with Smith to the scire facias, and Erwin's Lessee v. Dundas, 4 How. U.S. R. 58, is cited. This position would be correct, if the law did not permit a sale of the real estate of heirs without a judgment against them. But by the law of Indiana, at the time the debts in question were contracted, and the proceedings upon scire facias had, the real estate of which a person died seized, as will appear from an inspection of the statutes, was subject to sale for his debts, upon a judgment against his administrator, and without notice to his heirs. Hence it was necessary to join only the administrator of a deceased joint-debtor with the survivor, to obtain a judgment, upon which the lands of the one, and of the heirs of the other, could be sold. See Fritz v. Evans, 13 S. & R. 14.

Again, it is objected that the sale of the property was without appraisement, the law, at the date of the sale, requiring one; that it does not appear that the rents and profits were first offered for sale; and that the small sum at which the sale was made, compared to the value of the property sold, was such as to vitiate the sale.

But the law at the date of the contracts did not require an appraisement before sale of property on execution, and, hence, a sale in this case, without an appraisement, was proper; and, it not appearing that the rents and profits were not first offered, it will be presumed that they were so; and the small price for which the property sold, having resulted from the improper conduct of the execution-defendant, Smith, in throwing a cloud upon the title to it, as will subsequently appear in this opinion, the defendants in this case cannot make an objection on that ground.

We think the proceedings upon the executions were not void.

But prior to the rendition of the judgments on which said executions issued, Hosea Smith, the judgment-debtor, whose lands were sold, had conveyed the lands away to his sons; and we must inquire into the validity of those conveyances. He first executed deeds to them in March, 1817. They were four in number. One to his son Henry, then about fifteen years old, for the S. E. quarter of section 28, and for the consideration, as stated in the deed, of 500 dollars. One to Onias, then about twelve years old, for a part of section 33, and for the consideration, as named in the deed, of 500 dollars. One to Warren, then about six years old, for a part of section 33, for the consideration of 550 dollars. One to Hosea, Jr., then about four months old, for the N. W. quarter of section 27, and one hundred acres out of the N. E. quarter of section 28, and for the consideration of 1000 dollars. These deeds, it is said, were deeds of gift, made by the donor to his sons, in pursuance of a long indulged intention, and just upon the eve of his departure upon a long journey, from which he feared he might never return. They were not recorded, but handed to a son-in-law, who deposited them in a bureau in the donor's house, where they remained, and were never taken away by the son-in-law, to whom they were delivered. In March, 1818, said Hosea, Sen., having returned from his journey, and supposing the deeds he had previously made to be invalid, he executed another set of deeds, in all respects like the first, and caused them to be recorded. These latter deeds were executed but a short time before the judgments first mentioned in this suit, were rendered against said Hosea and Rice, amounting to near 1,800 dollars, and of which but 411 dollars were ever made in exhausting the property of Rice and Smith, other than these lands conveyed by Smith to his sons. At the same time that Smith made the first set of deeds, in 1817, he executed to his son-in-law, Charles Alexander, leases for the several tracts of land described in the deeds, reserving rent payable to himself, which leases were for different terms of years, covering the minority of his sons respectively; but said Alexander never, in good faith, took possession of and cultivated the lands leased, as a tenant, and it was never intended that he should.

We cannot doubt that...