Ross v. Banta
| Citation | 39 N.E. 732,140 Ind. 120 |
| Decision Date | 05 February 1895 |
| Docket Number | 16,570 |
| Parties | Ross et al. v. Banta |
| Court | Supreme Court of Indiana |
Original Opinion of September 26, 1893, Reported at: 140 Ind 120.
A very earnest petition for a rehearing has been filed in this case on the ground that we erred in holding that lot 6 sold for more than two-thirds of its appraised value, and that the appellee Banta was not entitled to any exemption.
These two points have been urged by appellee's learned counsel in no less than ten briefs, and we have carefully read and considered all of them, containing nearly a hundred pages of printed and written matter.
In our original opinion, we set out what was found by the trial court to have been the form of the appraisement. At another place in the special finding, the court stated that "said sheriff * * *, on September 28, 1889, sold at sheriff's sale all the right, title and interest of said Guthrie and Banta in and to said lot 6, to the defendant Ross for the sum of $ 80, that being more than two-thirds of the appraised value of said lot, over and above the incumbrances thereon."
We treated this as a finding of fact in the original opinion, but counsel contends that it is not a finding of a fact, but a mere conclusion of law or fact, and mere surplusage.
He does not claim that it is a conclusion of law purely, but rather a conclusion of fact based on other facts found as to the appraisement, that is, that part of it which reads, "that being more than two-thirds of the appraised value of said lot over and above the incumbrances thereon."
It is contended that if as a matter of fact and figures $ 80 is not more than two-thirds of the appraised value of the lot over and above the incumbrances as stated elsewhere in the finding, then the statement that it was more than two-thirds did not make it so as against the other statement. Assuming, without deciding, that this reasoning is correct, we think there is no inconsistency between the two parts of the finding mentioned. The appraisers valued the two lots at $ 1,500, lot 5 at $ 400, and lot 6 at $ 1,100, and stated that there are incumbrances on both of them jointly amounting to $ 1,100.
It is contended with much seeming earnestness, that no valid sale of either lot could take place unless it brought enough to equal two-thirds of the appraised value of both lots over and above the joint incumbrance of $ 1,100 resting on both; that would be two-thirds of $ 400, the excess of the appraised value of both over and above the joint incumbrance; that contention means simply this, because the incumbrance is joint the law has such a tender regard for the poor debtor that it will require the execution creditor to bid enough on his execution sale to pay for two lots and get but one.
The learned counsel in his elaborate briefs finally ran up against this proposition, and attempts to head it off by saying that the bidder must either bid enough on the one lot to buy both, or bid them both in for that sum. But we would like to know how the bidder at a sheriff's sale can bid on a lot or piece of property that is not advertised or offered by the sheriff for sale. The finding shows that nothing but lot 6 was advertised or offered for sale by the sheriff. There is no law requiring a sheriff to levy on and sell more of the execution debtor's property than is needed to satisfy the execution in his hands, even though the property he offers for sale is jointly incumbered with other property of the execution debtor. On the contrary, the statute provides that: "If the estate shall consist of several lots, tracts and parcels, each shall be offered separately; and no more of any real estate shall be offered for sale than shall be necessary to satisfy the execution." 1 Burns R. S. 1894, section 768, R. S. 1881, section 756.
The rule in such a case can not be different from what it would be if the other property subject to the joint incumbrance did not belong to the execution debtor. So that there is no escape from the conclusion, if the appellee is right in his contention, that a purchaser of real estate at execution sale, which is jointly incumbered with another piece of real estate, must pay the price of both in order to make a valid purchase of one piece.
If there is any principle of law or equity that lends any sanction to such a doctrine, we have not discovered it, and the learned counsel has not been able to cite us to it. He does, however, urge in support of the doctrine stated that the established rule in equity being that where several parcels of real estate incumbered by the same lien jointly in the hands of the owner, and separate parcels are sold and alienated at different times, the parcels must be exhausted in the satisfaction of the lien in the inverse order of their alienation, and if any separate parcel or parcels remain unsold, and owned by the debtor, that such portion must be first exhausted for the satisfaction of the joint lien before resort can be had to those parcels alienated, provided the purchaser does not become obligated to pay the lien. That is the rule in this State. Houston v. Houston, 67 Ind. 276; Day v. Patterson, 18 Ind. 114; Williams v. Perry, 20 Ind. 437; Aiken v. Bruen, 21 Ind. 137; Alsop v. Hutchings, 25 Ind. 347; McShirley v. Birt, 44 Ind. 382; Hahn v. Behrman, Exr., 73 Ind. 120; McCullum v. Turpie, Admr., 32 Ind. 146; Merritt v. Richey, 97 Ind. 236.
It is insisted that under this rule the whole incumbrance of $ 1,100 can be forced onto lot 5, because the appellee retains the ownership of that lot, and thus the appellant will secure the title to lot 6, appraised at $ 1,100, for $ 80, which would be less than two-thirds of its appraised value.
But the above rule in equity can not apply in the present case. The law provides that "no property shall be sold on execution * * for less than two-thirds of the appraised cash value thereof, exclusive of liens and incumbrances, except where otherwise provided by law." 1 Burns R. S. 1894 section 744, R. S. 1881, section 732. It was not otherwise provided by law as to the costs for the collection of which the sale was made on execution. Lot 6 could not have been sold on that execution for less than two-thirds of $ 1,100, the appraised value of the lot clear of the incumbrance. But it is only what remains of the appraised cash value, after deducting therefrom the liens and incumbrances, that forms the basis of ascertaining what is the two-thirds of the appraised cash value, for less than which such sales are forbidden. While the purchaser at such sales does not obligate himself personally to pay the incumbrance, he does consent that the property shall remain liable primarily for the payment of the incumbrance. Indeed, the sale to him proceeds upon the theory that so much of the property in value as equals the amount of the incumbrance has been already conditionally sold to the lien-holder, and the purchaser at the sheriff's sale pays for the balance of the property, and thus acquires a right to hold and own it all (there being no...
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