Reed v. Diven

• Decision Date: 08 December 1855
• Parties: Reed v. Diven
• Court: Indiana Supreme Court

7 Ind. 151

Reed v. Diven

Supreme Court of Indiana

December 8, 1855

From the Henry Circuit Court.

The judgment is affirmed with costs.

C. H Test, N.H. Johnson and J. B. Julian, for appellant.

J. T Elliott and W. Grose, for appellee.

OPINION

Davison J.

The object of this suit was to set aside, as fraudulent and void a sale and conveyance of real estate, made by the sheriff of Henry county. Reed and Shelly, the latter being the sheriff, and the former the sheriff's vendee, were the defendants below. Upon demurrer to their answer to the complaint, a decree passed in favor of Diven, the appellee.

The facts admitted and set up by the answer are substantially these:

Reed, on the 5th of July, 1854, recovered a judgment in the Wayne Common Pleas against Diven for 177 dollars. A transcript of this judgment was, on the 2d of August following, filed in the clerk's office of the Henry Circuit Court, and, at that date, became a lien on Diven's land. The judgment had been rendered without relief from appraisement laws, and upon it an execution was issued, which, on the 2d of February, 1855, was placed in the hands of the sheriff, who levied the same on certain lands situate in congressional township seventeen, of range ten, in Henry county, described thus: 1. Three hundred and twenty acres, being the north half of section sixteen. 2. Part of the south-east quarter of section sixteen, lying west of Blue river, containing fifteen acres. 3. Eighty acres, being the east half of the south-east quarter of section seventeen. 4. One hundred and twenty acres off of the west side of the south-west quarter of section nine. 5. The east half of the south-east quarter of section nine, containing eighty acres. 6. Fifty-one hundredths of an acre, out of the south-east corner of the west half of the south-east quarter of section nine. The whole contained six hundred and fifteen acres and was worth 14,000 dollars. The tracts numbered one, two, three and six are incumbered by a mortgage to one Goodwin, to secure the payment of 5,400 dollars in instalments, without interest, viz., 1,000 dollars due January 1, 1856; 1,000 dollars, January 1,1857; 1,000 dollars, January 1, 1858; 1,000 dollars, January 1, 1859; and 1,400 dollars, January 1, 1860. This mortgage does not include forty acres off of the east side of the fourth tract; nor does it cover the eighty acres designated as tract number five; which land not included or covered, is worth 2,000 dollars: but on the eighty acre tract just named there is a mortgage in favor of one Powell for 300 dollars. There are also two judgments which are liens on the above real estate, one held by Nancy Diven for 495 dollars, and another by Thomas Morris for 30 dollars. These mortgages and judgments, in the aggregate, amount to 6,225 dollars, are subject to the appraisement laws, and liens prior to that of Reed's judgment, which, we have seen, was collectible without appraisement.

On the 2d of March, 1855, the sheriff, having then in his hands executions in favor of Nancy Diven, Thomas Morris, and Ball and Davis, which had been levied on said lands, offered the whole of them for sale in one body, on Reed's execution, and then sold the whole to the said Reed for 51 dollars, without having offered the same in separate tracts or parcels. The sheriff, at the time of the above sale, represented to the persons present that Goodwin's mortgage covered all the land proposed for sale; also that the execution of Ball and Davis, amounting to 335 dollars, was an incumbrance prior to Reed's execution, when in truth it was the junior lien; but it is alleged that these representations were made through mistake, and without any fraudulent purpose.

On the 15th of March, 1855, the sheriff, pursuant to the above sale executed a deed to the purchaser, whereby it appears that the lands were duly advertised; that the rents and profits for seven years were first offered; and that the sheriff's sale and conveyance were made subject to all antecedent liens. Before the sheriff executed the deed, viz., on the 7th of March, 1855, Diven notified the sheriff that the lands were not legally sold, and at the same...