Lewark v. Carter

Citation20 N.E. 119,117 Ind. 206
Decision Date31 January 1889
Docket Number13,537
PartiesLewark v. Carter et al
CourtIndiana Supreme Court

From the Marion Superior Court.

Judgment affirmed.

D. V Burns and A. Seidensticker, for appellant.

F Rand, J. M. Winters and R. Clarke, for appellees.


Coffey, J.

This action was brought by the appellant in the Marion Superior Court against the appellees, George H. Carter, sheriff of Marion county and Fletcher & Churchman, to recover money paid by him on his bid for a horse sold by Carter at sheriff's sale.

The cause was tried by a jury, who returned a special verdict. On this verdict judgment was rendered for the defendants.

Lewark appealed to the general term of the superior court, where the judgment of the special term was affirmed, and he now appeals to this court, where, as in the general term, he calls in question the correctness of the judgment on the special verdict.

The material facts in the case, as set forth in the verdict of the jury, are: That appellee Carter, as the sheriff of Marion county, held an execution issued upon a judgment rendered in the Marion Superior Court in favor of his co-appellees, Fletcher & Churchman, against Oliver P. Castle, Charles B. Hitchcock, Charles F. Cleaveland and Robert H. Adams. Carter, as such sheriff, at the request of Fletcher & Churchman, the plaintiffs in said judgment, levied said execution on a certain bay horse as the property of the execution defendants. Due notice of the time and place of sale of the horse was given, and at the sale appellant became the purchaser, and paid the purchase-price; and Carter, after satisfying the costs out of the money, paid the residue to the judgment plaintiffs, Fletcher & Churchman, in part satisfaction of their judgment.

Before the levy of said execution, Hitchcock informed Corbaley, one of Carter's deputies, who was at the time in quest of property on which to levy the same, that he, Hitchcock, did not own the horse; and one Glazier, the book-keeper of Adams, told said Corbaley that the horse belonged to one Harry Walker.

The sale was made by Harding, another of Carter's deputies, who at the time, and in making the sale, in answer to a question put to him, publicly, by one William O. Patterson, at the sale, said that the title to the horse was clear and all right; and the plaintiff, hearing the statement, and relying on it, and believing it to be true, made his bid, but would not have bid had such statement not been made.

At the time Harding made the statement he had no knowledge as to whether it was true or not, and no actual intention of deceiving any one thereby, but believed the same to be true.

The execution defendant Hitchcock had owned the horse, but had sold it, before the execution plaintiffs, Fletcher & Churchman, had obtained their judgment, to his co-defendant Adams, who, before the date of said judgment, sold it to Harry Walker. Walker had entrusted the possession of said horse to the firm of Cleaveland & Brown, successors to Cleaveland & Adams, who were execution defendants.

Walker had no knowledge that the horse had been levied upon until after the sale. He brought an action against the appellant for possession of the horse, in the proper court, and recovered. The appellees were notified of the pendency of the action, and requested to defend it, but they failed to do so. After the termination of that action appellant demanded of the appellees repayment to him of the amount bid for said horse, which was refused.

A sale of personal property under execution passes only the right, title and interest of the judgment debtor. If the debtor has no interest, none passes by the sale to the purchaser. There is no warranty in judicial sales, and if the sheriff sells in good faith, he is not responsible to the purchaser for any defects in the title. A sheriff is only a ministerial officer, and does not warrant anything in connection with the sale by him of property upon an execution lawfully in his hands. The purchaser stands in the situation of a purchaser of real estate who has taken a conveyance without warranty. The purchaser has a right to what he gets, and no more. Caveat emptor is the rule. He can not avoid payment by showing that the goods belonged to some one else; but, if an innocent purchaser, he may have redress in equity against the execution debtor whose debt he has paid. Harrison v. Shanks, 76 Ky. 620, 13 Bush 620; State, ex rel., v. Prime, 54 Ind. 450; Brunner v. Brennan, 49 Ind. 98; Neal v. Gillaspy, 56 Ind. 451; Rorer Judicial Sales, section 1051.

We think it clear, from these authorities, that, in the absence of the representations made at the sale, that none of the defendants could be held responsible for the failure of title to the horse purchased by the appellant. It remains to inquire whether, by reason of such representations, they, or any of them, became liable to refund to the appellant the money paid by him for the horse to which the execution defendants had no title.

It appears that the horse was levied upon by the direction of the appellees Fletcher & Churchman. It also appears that the horse had previously belonged to the execution defendants, but that he had been sold....

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