Touhey v. Touhey

• Decision Date: 17 November 1898
• Parties: TOUHEY v. TOUHEY.
• Court: Indiana Supreme Court

151 Ind. 460
51 N.E. 919

TOUHEY
v.
TOUHEY.

Supreme Court of Indiana.

Nov. 17, 1898.

Appeal from circuit court, St. Joseph county; Lucius Hubbard, Judge.

Action by Patrick Touhey against Honora Touhey. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Miller & Parr, for appellant. Andrew Anderson, for appellee.

HACKNEY, C. J.

The question for decision in this case arises upon facts specially found and conclusions of law stated by the trial court, in substance as follows: On October 25, 1894, the appellee obtained a decree of divorce from, and a judgment for $2,000 alimony against, the appellant; the latter then being the owner of the real estate in question. Five days later an execution issued upon said judgment, and was, according to the terms of the judgment, collectible subject to valuation and appraisement laws. Said writ was levied upon said property, and a sale, without appraisement, was made to the appellee in May, 1895. A certificate of purchase issued to the appellee, and it recited the payment of the amount of the writ, whereas no sum was paid or receipted for by the appellee. In May, 1896, the sheriff executed to the appellee a deed for said property, and she went into possession. In December, 1896, more than two years from the issuance of said writ, the sheriff returned said execution unsatisfied, by reason of the invalidity of said sale, owing to the failure to appraise the property. Thereupon the appellee procured to be issued an execution in the nature of a venditioni exponas for the collection of said judgment, and upon said writ appraisement, notice, and sale were made; the appellee purchasing and receiving a certificate. Upon the appellant's complaint to quiet title, and upon the facts found, the court stated, as conclusions of law: (1) That the appellant is the owner of the legal title; (2) that the deed of the sheriff was void; but that (3) the lien of the judgment had not been extinguished. It is manifest that the appellant can present but one question,-that arising upon the third conclusion of law. It may be stated in this way: Did the irregularity in selling without appraisement, and in holding the writ for two years, extinguish the lien of the judgment, while leaving the title to the property undisturbed in the appellant? From any equitable view, the inquiry would suggest a negative answer. It would be a remarkable state of circumstances under which a sale absolutely void would satisfy the judgment upon which it is made...