Milburn v. Phillips

• Decision Date: 16 February 1894
• Docket Number: 16,330
• Citation: 36 N.E. 360,136 Ind. 680
• Parties: Milburn v. Phillips et al
• Court: Indiana Supreme Court

36 N.E. 360

136 Ind. 680

Milburn v. Phillips et al

No. 16,330

Supreme Court of Indiana

February 16, 1894

Original Opinion of October 12, 1893, Reported at: 136 Ind 680.

OPINION

Dailey, J.

Counsel for appellees earnestly insist that there should be a rehearing in this cause, for the reason that the court erred in ruling that the record shows that the sheriff who made the sale of the real estate in controversy did not have the rents and profits appraised prior to such sale.

They further say: "It is true that the record shows that the sheriff attached to his return what purported to be an appraisement of the real estate, and the schedule signed by the appraisers makes no mention of any appraisement of the rents and profits. But such appraisement is no part of the return, and, if it were, is no evidence that the rents and profits were not appraised."

In support of this contention they cite Coan v Elliott, 101 Ind. 275.

We are now asked by the learned counsel to construe the record in this case as if it were wholly silent upon the question whether there was or was not an appraisement of the rents and profits, and to find, this being so, that there is nothing to rebut the presumption that the land was appraised.

Counsel say: "All that a purchaser, who relies upon a sheriff's deed, need do in order to show a valid title to real estate, is to prove a valid judgment against the owner an execution thereon, and a sheriff's deed pursuant thereto."

To uphold this doctrine, they cite Mercer v. Doe on Demise, 6 Ind. 80; Hall v. Craig, 125 Ind. 523, 25 N.E. 538 (527).

Our attention is also called to 2 Freeman on Executions (4th ed.), section 339, p. 1139, declaring that "the presumption is and continues until overcome by affirmative proof, that the sheriff did his duty in all respects."

Several other authorities are cited sustaining the same rule.

It is clearly the law that courts indulge this presumption when the record is silent as to what he did in the matter under consideration. But appellees are confronted, in this case, with a singular condition of affairs.

Among other points made by the appellant in his original brief, filed December 16, 1891, nearly two years before the decision was rendered, is the following: "There is one other consideration: The judgment of Phillips against Joseph E. Milburn was not without relief from valuation or appraisement laws. The sheriff had the lands appraised, but did not have the rents and profits of the land appraised. He offered the rents and profits, and receiving no bid, offered the fee-simple. For this reason the sheriff's sale is invalid and should be set aside."

In support of this contention, appellant cited: R. S. 1881, section 754; Davis v. Campbell, 12 Ind. 192; Indiana, etc., R. W. Co. v. Bradley, 15 Ind. 23; Tyler v. Wilkerson, 27 Ind. 450.

In response to this, appellees, on April 20, 1892, in their only brief, except on petition for rehearing, say: "Appellant admits that the land was appraised, but finds fault that the rents and profits were not appraised. In answer to this we can only say that the rents and profits were not sold therefore no injury occurred to the appellant, or any one else, even if it was...