Lewark v. Carter

• Court: Indiana Supreme Court
• Writing for the Court: Coffey
• Citation: Lewark v. Carter , 117 Ind. 206, 20 N.E. 119 (Ind. 1889)
• Decision Date: 31 January 1889
• Parties: Lewark v. Carter et al.

117 Ind. 206

20 N.E. 119

Lewark

v.Carter et al.

Supreme Court of Indiana.

January 31, 1889.

Appeal from superior court, Marion county; Lewis C. Walker, Judge.

Action by Joseph Lewark against George H. Carter and his co-defendants, Fletcher and Churchman, to recover the amount paid by him for a horse purchased at an execution sale. Verdict and judgment for defendants, and plaintiff appeals.

Burns & Seidensticker, for appellant. Ross Clarke and Rand & Winter, 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 and 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 and Churchman, against Oliver P. Castle, Charles B. Hitchcock, Charles F. Cleveland, and Robert H. Adams. Carter, as such sheriff, at the request of Fletcher and 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 and Churchman, in part satisfaction of their judgment. Before the levy of said execution, Hitchcock informed Corbaly, 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 Corbaly that the horse belonged to one Henry 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 and Churchman, had obtained their judgment, to his co-defendant, Adams, who, before the date of said judgment, sold it to Harry Walker. Walker had intrusted the possession of said horse to the firm of Cleveland & Brown, successors to Cleveland & 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 appellant for possession of the horse in the proper court and recovered. The appellees were notified of the pendency of this action, and requested to defend it, but they failed to do so, and, 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 of the title thereto. 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 cannot 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, 13 Bush, 620;State v. Prime, 54 Ind. 450;Brunner v. Brennan, 49 Ind. 100;Neal v. Gillaspy, 56 Ind. 451; Ror. Jud. Sales, § 1051. We think it clear, from these authorities, that, in the absence of the representation 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.

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