Leonard v. Broughton

• Decision Date: 02 November 1889
• Citation: 120 Ind. 536,22 N.E. 731
• Parties: Leonard et al. v. Broughton et al.
• Court: Indiana Supreme Court

120 Ind. 536

22 N.E. 731

Leonard et al.

v.Broughton et al.

Supreme Court of Indiana.

Nov. 2, 1889.

Appeal from circuit court, Noble county; R. Wes. McBride, Judge.

Marshall & McNaguy and H. G. Zimmerman, for appellants. A. A. Chapin and R. P. Barr, for appellees.

Olds, J.

This is an action to quiet title. There was a demurrer sustained to the complaint, and exceptions and judgment on demurrer for defendants. Error assigned as to the ruling of the court on the demurrer to the complaint. The plaintiffs in this action are Wellington Y. Leonard, Henry W. Franks, and Merritt C. Skinner, and the defendants are Samuel Broughton, Jacob C. Zimmerman, Charles M. Clapp, as administrator of the estate of Milton M. Clapp, deceased, and Peter Sunday. The complaint is very lengthy, and sets out the facts in detail and with particularity, showing: That the plaintiffs became the purchasers at a valid sheriff's sale of the real estate described in the complaint, on executions duly issued upon three valid judgments rendered in the Noble circuit court, at various dates from the 6th day of November, 1879; and the dates of the issuing of the executions thereon. One of the judgments on which executions issued, and being the senior judgment on which said executions issued, was a judgment in favor of the plaintiff, Franks, rendered November 6, 1879, for $136.41 and costs; one, a judgment rendered in favor of Uriah Franks against said Mendenhall and plaintiff Leonard, January 21, 1880, for $235.50 and costs, on which Leonard was surety; and the other, a judgment in favor of said Uriah Franks against said Mendenhall and plaintiff Skinner, rendered January 21, 1880, for $577.79 and costs, on which Skinner was surety,-and which two last judgments said Leonard and Skinner had paid, each having paid the judgment for which they were respectively liable before the issuing of said executions, and said executions were respectively issued for their use; and that the executions were all duly issued and levied upon the real estate described in the complaint as the property of the principal judgment debtor, Isaac Mendenhall, who was the owner of said real estate, and had been since the 31st day of December, 1878, prior to the rendition of said judgments; and that said real estate was duly advertised and sold by the sheriff of said Noble county, to satisfy said executions and judgments, on the 22d day of December, 1883, and the plaintiffs became the purchasers of the same for the sum of $700, and a certificate of purchase duly issued; and that said real estate was not redeemed from said sale, and after the expiration of one year, on May 25, 1885, on surrender of the sheriff's certificate, a deed was duly issued to said purchasers; that said $700 purchase money at said sheriff's sale was applied, first, to the liquidation of the executions in favor of plaintiff Franks in full, and the balance applied, pro rata, to the payment of the executions in favor of said Leonard and Skinner.

The complaint further alleges and sets out in detail the fact that Mendenhall made a fraudulent sale and conveyance of said real estate to one White on the 31st day of December, 1878, and White to Chapman; and the prosecution of an action to set aside such sale and conveyance, and that notice of such proceedings was filed in the lis pendens record of said county, and a recovery had in said cause, and a decree entered setting aside such sale and conveyance, and an order for White and Chapman to convey the real estate, which they did, and conveyed the same to the plaintiffs. That, by reason of such facts alleged in the complaint, the plaintiffs are the owners in fee-simple of the said real estate described in the complaint. It is then averred in the complaint that the defendants Broughton, Zimmerman, and Clapp, as administrator, claim title to the same real estate in the manner following: That at the March term of said Noble circuit court, 1875, a certain action was therein pending, wherein the state of Indiana, on the relation of James C. Stewart, auditor of Noble county, was plaintiff, and the defendants herein Samuel Broughton and Jacob Zimmerman, and the defendant Clapp's intestate, William M. Clapp, together with Nelson Prentiss, Ephriam Cramer, Cornelius Grim, and Isaac Mendenhall, and Isaac Mendenhall as the administrator of the estate of John Mendenhall, deceased, were defendants; that said action was brought upon the bond of said Isaac Mendenhall, theretofore late the county treasurer of said county, and the said other defendants, as sureties thereon, for the recovery of the sum of $1,360, for an alleged defalcation by said Isaac Mendenhall, as such county treasurer, and which sum, it was alleged, he had failed to account for and pay over to his successor, in going out of office; that in said cause in said court, upon appearance having been by said defendants therein first entered, and upon answers filed to the complaint on said bond, and after issue joined thereon, a trial was had, and finding made for the plaintiff therein, and judgment rendered by the court thereon on the 10th day of March, 1875, for $1,360, and entered up in Order Book No. 7, p. 53, of said court, against said Isaac Mendenhall alone. Although said day's proceedings of said circuit court for said 10th day of March, 1875, including said judgment last aforesaid, were by said clerk of said court entered and written up in said order book of said circuit court, yet the plaintiffs say that neither said day's proceedings nor the entry of said judgment were then, or at any other time, ever signed by the judge rendering said judgment, or before whom said proceedings were had; nor has said judgment entry and day's proceedings of said court of said day, or either of them, ever been signed by any judge of said court, or of any court, or by any judge whatever; but, on the contrary, said day's proceedings and said order-book entry of said judgment, each and both, remain wholly unsigned by any judge of any court, or by any judge whatever. Plaintiffs further say that on the 8th day of January, 1878, the attorney for the plaintiff in the judgment last named filed with the clerk of said court a written præcipe for an execution on said judgment against said Mendenhall, so rendered on said 10th day of March, 1875, as aforesaid; that on the 19th day of January, 1878, pursuant to said order, said clerk issued an execution on said last-named judgment, directed to the sheriff of Noble county for service, which said writ came to the hands of the sheriff on the last-named day aforesaid. And plaintiffs say that afterwards, on the 7th day of March, 1878, the then county commissioners of said county indorsed upon said execution, in writing, by them severally signed, as such county commissioners, an order and direction to said sheriff to hold said writ, and not to execute the same until further orders from said county commissioners, which order is as follows: “The sheriff will await further orders before enforcing collection on the within writ. March 7th, 1878.” Signed by William Broughton, John P. McWilliams, and William Imes, county commissioners. And said plaintiffs say that, said order and directions never having been canceled, recalled, or modified, the said execution was by said sheriff held until the expiration thereof; when, on the 11th day of September, 1878, the said sheriff made return thereof to the clerk of said court, indorsed thereon as follows: “By within order of the county commissioners, this writ was held, and, the full time having expired, it is now, by their orders, returned unsatisfied, this 11th day of September, 1878. Nathaniel P. Engles, Sheriff.”

It is further averred that afterwards, on the 22d day of September, 1881, the then county auditor of said Noble county, by his attorney, filed in the office of the clerk of said court a motion to correct said judgment. That said motion was entitled as follows: “The state of Indiana, on the relation of James C. Stewart, auditor of Noble county, vs. Isaac Mendenhall, Samuel Broughton, Jacob C. Zimmerman, William M. Clapp, Charles M. Clapp, administrator of the estate of William M. Clapp, deceased, Wilson Prentiss, Ephriam Cramer, Cornelius L. Grim, and Isaac Mendenhall, as administrator of the estate of John Mendenhall, deceased.” That it was alleged in said motion that at the March term, 1875, of said court, the action was pending upon the bond as aforesaid, and that the defendants in said action appeared thereto, issues were joined, and the cause submitted to court for hearing and trial, on an agreed statement of facts; and the court found for the plaintiff in said action, against all of the defendants, in the sum of $1,438.38. And that said court thereupon rendered judgment against all of said defendants, in accordance with said finding; and that, notwithstanding the finding so made, and judgment so rendered and pronounced by the court, the clerk of said court, by inadvertence, mistake, and misprision, entered up said judgment in the order book of said court for the sum of $1,360, instead of $1,438.38, and against the defendant Isaac Mendenhall alone, instead of against him and all of the other defendants, as the same was given and pronounced, and should have been rendered. And said motion further recited the said agreement upon which said judgment was rendered, and a copy of the...