Vanslyke v. Shryer

• Decision Date: 31 October 1884
• Docket Number: 10,729
• Citation: 98 Ind. 126
• Parties: Vanslyke v. Shryer
• Court: Indiana Supreme Court

98 Ind. 126

Vanslyke v. Shryer

No. 10,729

Supreme Court of Indiana

October 31, 1884

From the Greene Circuit Court.

E. E Rose and E. Short, for appellant.

A. G Cavins and E. H. C. Cavins, for appellee.

OPINION

Black C.

The appellant, in August, 1881, brought his action against the appellee, to set aside three sheriff's sales of real estate, at each of which the appellee, a plaintiff in each of the judgments under which the sales were made, was the purchaser.

The complaint was in three paragraphs. There was an answer in two paragraphs, the first being a general denial. A demurrer to the second was overruled, and the plaintiff replied in two paragraphs. The cause was tried by the court, the finding being in favor of the defendant. A motion for a new trial made by the plaintiff was overruled, the causes assigned therein being that the decision of the court was contrary to law, and that it was not sustained by sufficient evidence. Thereupon judgment was rendered for the defendant.

The appellant has assigned as errors the overruling of his demurrer and the overruling of his motion for a new trial.

The first sale was made on the 4th of November, 1876, on execution under a judgment for $ 4,215 and costs, rendered in the court below, on the 15th of June, 1876, in favor of the appellee and others against the appellant and others. This sale was for the sum of $ 4,280.78. Among the lands sold as the property of the appellant was a tract in Greene county described as the north half of the southwest quarter, and the north half of the southeast quarter, of section 22, township 7 north, of range 5 west, except about fourteen acres conveyed to certain persons named. The land sold not having been redeemed, the appellee, on the 7th of November, 1877, received the sheriff's deed and went into possession. The objection made to this sale in the first paragraph of the complaint was, that in the sheriff's advertisement of the sale the land was described as being in range 7 west.

In the second paragraph of the complaint it was alleged that said judgment was obtained without process as against the appellant; also, that the record of the sheriff's return was changed as to the real estate above described by erasing the word "seven" and the figure "7" and inserting instead thereof the word five and the figure 5; and that said real estate above described was not levied upon, or advertised or sold, but was conveyed by mistake caused by said change in the record.

In the third paragraph of the complaint it was alleged that said judgment was recovered without process being issued for the appellant or appearance by him; that in the sheriff's advertisement of the sale the land above described was described as being in range 7 west; that the purchaser knew, at the time of the sale, that this portion of the lands had not been advertised for sale; but that the sheriff in his return, after reciting his levy upon the lands, correctly describing them, recited that "after giving due and legal notice of the time and place of sale of the above described real estate," he sold the same.

The second sale was made on an order of sale issued under a judgment rendered on the 25th of October, 1876, in favor of the appellee and others against the appellant and others, in a suit wherein a mortgage executed by the appellant upon his real estate was foreclosed, said real estate including that above described. This sale was made for $ 1,192.34. It was alleged of this sale, that the land sold not having been redeemed, the appellee, on the 20th of November, 1877, received the sheriff's deed and went into possession of the lands. The objections urged against this sale were, that the order of sale having been issued and placed in the hands of the sheriff on the 31st of October, 1876, the sale was advertised for and made on the 18th of November, 1876; also, that the order of sale was for $ 547.60, when the judgment was for $ 527.64 in gold coin, or $ 567.60 in currency; also, that there were certain mistakes in the descriptions of lands in the sheriff's advertisement.

The third sale also was made under an order of sale issued under a judgment of foreclosure of a mortgage on real estate of the appellant, including that above described, rendered on the 13th of June, 1877. The amount for which the mortgaged premises sold was $ 568. It was alleged that the mortgage was not executed or assigned to the plaintiffs in this judgment; that the mortgaged premises, at the time of the sale, were worth, and they still were worth, $ 12,000, and that the bid therefor was grossly inadequate; that the judgment of foreclosure was taken for $ 100 over what was due on one of the notes secured by the mortgage, and for $ 14.15 more than was claimed in the complaint, and that the judgment was taken by default; also, that one of the notes on which the judgment of foreclosure was based had been merged in a judgment taken thereon without foreclosure, on the 28th of March, 1877. It was alleged that under this sale a certificate of purchase was given by the sheriff to the appellee; but it was not alleged that a deed had been executed.

The plaintiff's prayer for relief was confined to the real estate above described in said section 22.

In the second paragraph of answer it was shown that said judgments were all rendered in favor of a certain firm engaged in the business of banking, and that the actions in which they were rendered were prosecuted by the persons who at the time were the members of said firm. It was alleged, amongst other things, that the appellant knew that the land above described in said section 22 was sold on said first sale, and that he had executions issued on the judgment under which the sale was made, for his benefit, and had property sold thereunder and collected a part of said judgment from some of his co-defendants by execution, and one-half of the residue from one of his co-defendants in said judgment; that after the appellee received his deed under said second sale, the appellant recognized said second sale and sanctioned it by surrendering possession and by collecting a portion of the judgment from one of his co-defendants, and by setting up a claim for, and collecting, another portion from another co-defendant.

It was alleged that there having been no redemption from said third sale during the year for redemption, a deed was executed by the sheriff to the appellee; that when said lands were so sold there were prior liens against them for more than their value. And it was alleged that after all of said sales were made, the appellant agreed with the appellee to repurchase the real estate sold for the cost thereof, and said agreement was held open, and it was expected that it would be consummated, until in August, 1878, when the appellant gave the appellee notice that he could not make the purchase, and that the appellee need not hold the lands longer for the appellant, but might proceed to sell them to other persons that afterward the appellee sold and conveyed the land above described to a person named who had taken possession under said sale, and had made full payment for said property. It...