Platter v. The Board of Commissioners of Elkhart County

• Decision Date: 07 October 1885
• Docket Number: 11,294
• Citation: 2 N.E. 544,103 Ind. 360
• Parties: Platter v. The Board of Commissioners of Elkhart County
• Court: Indiana Supreme Court

2 N.E. 544

103 Ind. 360

Platter v. The Board of Commissioners of Elkhart County

No. 11,294

Supreme Court of Indiana

October 7, 1885

Petition for a Rehearing Overruled Dec. 30, 1885.

From the LaGrange Circuit Court.

Judgment affirmed.

R. M Johnson, J. Morris, H. D. Wilson, W. J. Davis, J. D. Ferrall E. G. Herr and A. A. Chapin, for appellant.

J. H. Baker, J. A. S. Mitchell, F. E. Baker and W. L. Stonex, for appellee.

Elliott, J. Mitchell, C. J., did not participate in the decision of this case.

OPINION

Elliott, J.

The material facts alleged in the complaint of the appellee, exhibited in a condensed form, are these: In 1853 the county of Elkhart became the owner of a tract of land, and remained the owner of it from that time until 1882, using it during all that period as a poor farm, as it is called, for the maintenance of the paupers of the county. In February, 1883, the board were convened in special session, having been called together by a summons issued by the auditor, and on that day adopted the following preamble and resolutions:

"Whereas the board did, at the December term, 1881, to wit, December 7th, determine that it was for the best interests of Elkhart county to sell said poor farm, with the purpose in view of relocating said poor farm in a more eligible place; and whereas said board did on said day, in pursuance of said determination, direct said auditor to give notice by advertisement in the public newspapers in the county that said farm was for sale, and that in pursuance of said order and direction said auditor did thereafter give notice by publication in three newspapers of general circulation, printed and published in Elkhart county, for three successive weeks, that said poor farm was for sale and awaiting bids for the purchase thereof; and whereas this board did again convene on the 11th, 12th and 13th days of January, 1882, for the purpose of further considering the matter of the proposed sale of said poor farm, and this board did, on the 12th day of January, 1882, while so in session, in good faith attempt to sell and convey, and did make, execute and deliver a deed for said farm to William D. Platter, at and for the agreed purchase-price of fourteen thousand dollars, which sum said Platter has paid into the county treasury; and whereas complaints have been made that said farm above described was sold for a sum less than its real value, and that notice of the time, place and terms of the sale thereof was not given for the requisite time as by law in such cases made and provided, and that said sale was at private sale, instead of by public sale; and whereas this board is of the opinion that it is and will be for the best interests of Elkhart county that the asylum for the poor of Elkhart county shall be discontinued at and on the above described land, and that said land should be sold at public sale, and that a sale thereof should be had at the earliest practicable day; wherefore, in order to effectuate and carry out said determination, and that a perfect title and legal sale may be made of said poor farm, it is therefore ordered that the above described real estate be sold at public auction at the door of the court-house, in Elkhart county, Indiana, on the 20th day of April, 1882, between the hours of ten o'clock a. m. and two o'clock p. m. of said day, on the following terms, to wit: One-half of the purchase-price will be required cash on the day of sale, and the residue in one year from date of sale evidenced by note of purchaser, with six per cent. interest from date, waiving valuation and appraisement laws and attorneys' fees, with approved security.

"And it is further ordered that the auditor of Elkhart county cause notice of said sale to be given by publication in the Goshen Times, the Independent, and the Elkhart County Journal and the Monitor, each a weekly newspaper of general circulation, published and printed in Elkhart county, in each issue of said papers until the 20th day of April, 1882, and a copy of the notice of such sale be posted in five public places in said county, to wit: One at the door of the court-house, one each at the post-offices in Goshen, Elkhart and Middlebury, and one at the county asylum; and the board further orders that the county auditor, either in person or by deputy, act as auctioneer of said sale."

That pursuant to such order the county auditor advertised the sale of such poor farm by publishing for sixty days immediately prior to the 20th day of April, 1882, the following notice:

"Notice of Sale of Elkhart County Poor Farm.

"Notice is hereby given that the board of commissioners of Elkhart county, Indiana, will offer at public auction, at the door of the court-house of said county, on Thursday, the 20th day of April, A. D. 1882, between the hours of ten o'clock a. m. and two o'clock p. m. of said day, the farm known as the poor farm of said county, described as follows, to wit:

"The southeast quarter of the southwest quarter, and the south half of the southeast quarter, of section twenty-five (25), in township thirty-six (36) north, and of range six (6) east, and the southwest quarter of the southwest quarter of section thirty (30), in township thirty-six (36) north, and of range seven (7) east, in said county, containing 160 acres.

"Terms:--The one-half of the purchase-price will be required in cash on day of sale, and the residue in one year from the day of sale, the purchaser giving his note therefor with 6 per cent. interest, waiving valuation and appraisement laws, and attorneys' fees, with approved security, but the board reserves the right to retain possession of the asylum buildings until they can make suitable arrangements for the keeping of the poor elsewhere. By order of the board of commissioners, at special session, February 15th, 1882."

The board at the same special session ordered "that the auditor, either in person or by deputy, act as auctioneer of said sale." On the 20th day of April, 1882, at one o'clock in the afternoon, when the board was not in session, and could not be in session except upon the summons of the auditor, that officer read in the hearing of a number of persons then convened the notice of sale, and then and there stated that he would sell the poor farm to the highest and best bidder on the terms specified in the notice; no person made any bid except the appellant, and he only made one bid of twelve thousand dollars, whereupon the auditor declared the farm sold to him. The auditor accepted from the appellant as purchase-money six thousand dollars, and a note signed by him alone, and also received a mortgage on the farm to secure the note. On the 20th day of April, 1882, the board convened in special session upon the summons of the auditor, and received from the latter a report of the sale, as follows:

"The undersigned, auditor of said county, would most respectfully report to your honorable board, that in obedience to the order of this board made February 15th, 1882, he caused to be published in each of the following weekly newspapers, of general circulation in said county to wit, the Goshen Times and the Independent, of Goshen, and the Elkhart Review and the Elkhart Monitor, of Elkhart, the notice, a copy of which is filed herewith and made a part hereof, each week from said 15th day of February to this date, the first publication thereof being in the Goshen Times of February 16th, 1882, and by posting said notice in five public places in said county, as per proof of said posting filed herewith by the affidavit of the sheriff of said county, that by virtue and in pursuance of said order said board would sell to the highest bidder, on the terms mentioned in said notice, the following real estate, situated in said county and State, and described as follows, to wit: The southeast quarter of the southwest quarter, and the south half of the southeast quarter, of section twenty-five (25), in township thirty-six (36) north, and of range six (6) east, and the southwest quarter of the southwest quarter of section thirty (30), in township thirty-six (36) north, and of range seven (7) east, containing 160 acres.

"That, in pursuance of said order and notice, I did, between the hours of ten o'clock a. m. and two o'clock p. m. of the 20th day of April, 1882, as auctioneer, offer for sale at public auction said above described real estate at the door of the court-house, in said county, to the highest and best bidder, on the terms set forth in said notice, and William D. Platter having bid therefor the sum of $ 12,000, the said realty was then and there openly struck off and sold to said William D. Platter for said sum of $ 12,000, that being the highest and best bid therefor, and said William D. Platter being the highest and best bidder therefor, though more than fifty persons, resident taxpayers and citizens of said county were present during all the time of said sale, said William D. Platter paid down the one-half of said sum, to wit, $ 6,000 cash, and executed his note secured by mortgage on said realty for the balance of said purchase-price, to wit, $ 6,000, bearing interest from date, which note, mortgage and money so paid I now bring to said board. Said sale was in all things in accordance with said order and notice, and in said sale the possession and use of the asylum buildings on said premises were reserved for the purpose of the poor until suitable arrangements can be made for keeping them elsewhere."

The board approved the report, confirmed the sale, received the money tendered by Platter, and accepted his note and mortgage. Immediately upon the making of the order approving the sale, Milo S. Hascall and John H. Violett prayed an appeal and filed the proper bond. Notwithstanding the prayer of...