Richey v. Merritt
| Decision Date | 07 December 1886 |
| Docket Number | 12,549 |
| Parties | Richey v. Merritt |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
The judgment is reversed with costs, and the cause is remanded.
J. N Sims, for appellant.
J. V Kent and J. W. Merritt, for appellee.
This was a suit by John Merritt against James M. Richey and others to set aside a sheriff's sale of real estate. A demurrer was sustained to the complaint, and there was a judgment upon demurrer in favor of the defendants. Upon an appeal to this court the complaint was held to be sufficient and the judgment was reversed. Merritt v Richey, 97 Ind. 236.
After the cause was remanded, the court tried the cause without a jury, and, upon proper request, made a special finding of the facts seemingly established by the evidence.
The finding in brief was, that on the 31st day of May, 1877 Marcellus Bristow was the owner and in the actual possession of lots 3, 4, 5 and 6, in block No. 15, in the town of Scircleville, in Clinton county, in this State; also of lots 1, 7 and 8, in said block No. 15, of said town; also of blocks Nos. 13, 14 and 16, in said town; that, on the 19th day of January, 1880, the said Bristow became, also, the owner of lots 3 and 4, in block No. 26, and of lots 1, 2, 7 and 8, in block No. 34, and of lots 1, 2, 3, 4, 5, 6, 7 and 8, in block No. 38, and of lots 1, 2, 3, 4, 5, 6, 7 and 8, in block No. 41, all in said town of Scircleville; that, on the 25th day of January, 1880, in a suit for partition in the Clinton Circuit Court, in which Lucinda Bristow and others were plaintiffs, and the said Marcellus Bristow and others were defendants, the northwest quarter of the southwest quarter of section 32, in township 22 north, range 2 east, in said county of Clinton, was, among other lands, assigned and set off to the said Marcellus Bristow; that, on the said 31st day of May, 1877, David P. Barner, cashier of the First National Bank of Frankfort, obtained a judgment in the Clinton Circuit Court against one Samuel Merritt, and against the said Marcellus Bristow personally, as well as against him as administrator of the estate of Williamson Farrar, deceased, for the sum of $ 178.64, with costs of suit and interest at the rate of ten per cent. per annum; that, on the 3d day of April, 1879, the said Marcellus Bristow and his wife sold and by a warranty deed conveyed to John Merritt, the plaintiff herein, said lots 3, 4, 5 and 6, in block No. 15, in said town of Scircleville; that on the 23d day of September, 1879, the said Marcellus Bristow and his wife sold and conveyed to Joel A. Haden block No. 16, in said town of Scircleville, and all that part or parcel of land lying between said block No. 16 and the northwest quarter of the southwest quarter of section 3, in town. 21 north, range 2 east, in said county of Clinton; that, on said 23d day of September, 1879, the said Marcellus Bristow and his wife sold and conveyed to Samuel Armstrong all that part or parcel of land lying between said block No. 15, in the town of Scircleville, and the northwest quarter of the southwest quarter of said section 3, in town. 21 north, range 2 east; that, on the 16th day of February, 1880, the said Marcellus Bristow and his wife, in consideration of the sum of $ 800, conveyed and warranted to the above named James M. Richey the northwest quarter of the southwest quarter of section 32, town. 22 north, range 2 east, of which the said Richey went into possession; that, on the 10th day of May, 1880, the said Marcellus Bristow and his wife conveyed to Samuel Merritt lots 1, 2, 7 and 8 in block No. 34, and lots 1, 2, 3, 4, 5, 6, 7 and 8 in block No. 38, and lots 1, 2, 3, 4, 5, 6, 7 and 8 in block No. 41, all in said town of Scircleville; and that, on the 18th day of May, 1880, the said Samuel Merritt and wife conveyed the same real estate to Richey; that, on the 16th day of February, 1881, the said Marcellus Bristow and his wife conveyed to Charles Howard lot 4 in block No. 14, in the same town of Scircleville; that, on the 13th day of April, 1880, David P. Barner caused an execution to be issued on the judgment so recovered by him, as herein above stated, and to be delivered to the sheriff of Clinton county; that said sheriff levied said execution on the northwest quarter of the southwest quarter of section 32, in town. 22 north, range 2 east, being the same land conveyed by Marcellus Bristow and wife to Richey as heretofore stated, and advertised the same for sale on the 11th day of September, 1880; that on the day last named, the said Richey paid to the said Barner the sum of $ 163.60, being the amount of principal and interest then due on said judgment, and to the sheriff the further sum of $ 43.50 in full of costs due thereon; that said execution was thereupon returned by the sheriff without making sale of the land so levied upon; that the said Barner, after so receiving the amount due on said judgment, assigned the same in due form to the said Richey; that the land upon which the execution was so levied was, on said 11th day of September, 1880, worth the sum of $ 1,000; that, on the 23d day of October, 1880, another execution was issued on said judgment, at the request and for the use of Richey, and delivered to the sheriff of Clinton county, who levied the same on lots 3, 4, 5 and 6 in block No. 15, lots 1, 2, 3, 4, 5, 6, 7 and 8 in block No. 38, lots 1, 2, 7 and 8 in block No. 31, lots 1, 2, 3, 4, 5, 6, 7 and 8 in block No. 41, and upon block No. 16, all in the town of Scircleville aforesaid; also on all that part or parcel of land lying between said block No. 16 and the northwest quarter of the southwest quarter of section 3, town. 21 north, range 2 east; also on all that part or parcel of land lying between said block No. 15 and the northwest quarter of the southwest quarter of section 3, above described; also on the south half of the southeast quarter of the northeast quarter of section 36, in town. 22 north, range 2 east; that said real estate was advertised by the sheriff for sale on the 11th day of December, 1880, at which time he, the said sheriff, proceeded to offer said real estate for sale; that when the fee simple of the south half of the southeast quarter of the northeast quarter of section 36, herein above referred to, was offered for sale, the plaintiff, John Merritt, bid for the same the sum...
To continue reading
Request your trial