Brose v. Doe ex dem. Williams

2 Ind. 666

• Court: Indiana Supreme Court
• Decided: July 14, 1851
• Status: Published

Opinion

Blackford, J.

This was an action of ejectment against Brose for a tract of land in Vanderburgh county. Plea, not guilty. The cause was submitted to the Court, and judgment rendered for the plaintiff. A motion for a new trial was made by the defendant, but the motion was overruled.

The following are the facts:

On the 19th of October, 1843, one Alexander J. Lawrence, who then owned'the land in dispute, sold and conveyed the same to the lessors of the plaintiff. These grantees, however, neglected to have their deed recorded until the 15th of July, 1845.

On the 8th of September, 1843, one James B. Cochran took out, from the Vigo Circuit Court, a writ of foreign attachment against said Lawrence, directed to the sheriff of that county. The sheriff’s return to that writ states that he had seized, as the property of Lawrence, several tracts of land in said county (which tracts are described in the return).

At the November term, 1843, publication of notice to Lawrence of the pendency of the suit was proved, and the cause continued.

At the May term, 1844, another writ of attachment in the cause was ordered to be issued to Vanderburgh county ; and the cause was continued. That second writ was accordingly issued, and was returned levied on the land in dispute.

At the November term, 1844, Lawrence made default, damages were assessed, and judgment was rendered against him, to be levied on the land attached in Vanderburgh county.

On the 15th of February, 1845, the sheriff of Vanderburgh county, by virtue of an execution on said judgment, sold the land in dispute to said Brose, and, on the 18th of the same month, made him a deed for the land. This deed was recorded on the 22d of February, 1845.

The plaintiff makes two objections to Erase’s title.

The first objection is, that the judgment is void for the want of jurisdiction in the Court.

In support of this objection it is said that the writs of attachment were respectively returnable in twenty days.

The first writ commanded the sheriff to attach Law-7'ence’s property in Vigo county, and safely keep the same, so that he might have it ready before the Court to be held on the first Monday in November then next, then and there in said Court to answer, &c. This writ, therefore, was in terms for an answer to the suit on the first day of the then next term. The concluding words of the writ, namely, that the sheriff should return the writ within twenty dajrs, are surplusage.

The second writ issued under the act of 1843; and, • therefore, though it appear on its face to be returnable in twenty days, it is not for that reason objectionable. R. S. 1843, p. 624, s. 13.

It is also said that the notice of the suit was published too soon. Such an objection was held'insufficient in Ziegenhager v. Doe d. Strong, Smith’s R. 174.

(1)

It is also said that the judgment was rendered too soon. The suit was continued at the November term, 1843. At the May term, 1844, which was-the next term after the first writ was returnable, the suit was again con-tinned. The act of 1843, which took effect in March, 1844, required no other continuance as to the first writ. R. S. 1843, p. 773. The second writ, which was legally issued in the same suit with the first, and was a proceeding in that suit, did not, we think, require any additional continuance or publication of notice to give the Court jurisdiction as to the whole case.

C. Baker, for the appellant. J. G. Jones, for the appellee.

It is said further that the land attached should have been described in the notice. The answer is; that the statute does not require such description.

It is said further that Lawrence had no land in Vigo county subject to attachment. But that does not appear by the record of the attachment-suit or by any other evidence. Land in that county was attached as the property of Lawrence; but what became of it we are not informed.

We have now noticed the reasons given to support the first objection to Brose’s title.

The second objection made to that title is, that Lawrence had conveyed the land to the lessors of the plaintiff before the attachment issued.

This objection is not tenable. The lessors’ deed was not recorded in the time prescribed by law; nor was it subsequently recorded till several months after Brose (who was a bona fide purchaser for value,) had caused his deed to be recorded. The case is within the principle decided in Orth v. Jennings, et al., 8 Blackf. 420.

Brose also claimed the land sued for as a purchaser under an execution in favor of one Williams; but it is not necessary to examine that part of the case.

Per Curiam.

The judgment is reversed with costs. Cause remanded for another trial. Costs here.

See 1 Carter’s Ind. R. 296.