Dietrich v. Federal Land Bank of Louisville

Indiana Supreme Court

Dietrich v. Federal Land Bank of Louisville

5 N.E.2d 884, 211 Ind. 500, 1937 Ind. LEXIS 223

CourtIndiana Supreme Court

DecidedFebruary 2, 1937

DocketNo. 26,579.

StatusPublished

This text of 5 N.E.2d 884 (Dietrich v. Federal Land Bank of Louisville) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dietrich v. Federal Land Bank of Louisville, 5 N.E.2d 884, 211 Ind. 500, 1937 Ind. LEXIS 223 (Ind. 1937).

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Opinion

Fansler, J.

— Appellee The Federal Land Bank of Louisville brought this action under section 3-1301 et seq., Burns’ Ann. St. 1933, §941 Baldwin’s 1934, to recover possession of real estate which it had purchased at a sheriff’s sale upon a decree foreclosing a mortgage. It appears from the pleadings that the judgment and decree foreclosing the mortgage had not been read in open court before it was signed by the judge. This is made the basis of an assignment of error by appellants. The question has been decided adversely to appellants’ contention in recent cases. Brant et al v. Lincoln Nat. Life Ins. Co., (1935), 209 Ind. 268, 198 N. E. 785; Laiskomis et al. v. Federal Land Bank of Louisville (1936), 210 Ind. 577, 4 N. E. (2d) 204.

The other error assigned involves the sufficiency of the evidence. Appellants contend that, plaintiff having alleged in its complaint that it has a fee-simple title, it must prove a fee-simple title; that such a title can be established only by proof of a chain *502 of title from the government down; and that evidence of title by sheriff’s deed upon sale pursuant to a valid judgment and decree of foreclosure is not sufficient. No authorities are cited that sustain this view. The complaint does recite that the plaintiff’s title is in fee simple, but it alleges also, specifically and in detail, that plaintiff derived its title by sheriff’s deed upon a sale pursuant to a valid judgment and decree of foreclosure. Proof sustains this specific allegation, and it is sufficient to sustain the judgment.

It is also contended that the sale was invalid for the reason that the sheriff’s return in one instance referred to the property sold as the property of the “defendant,” and that therefore there was no proof as to whose property was sold, as there were several defendants. This was obviously a typographical error, since the plural is used in other instances, but, in any event, a valid sale could not be defeated by an irregularity in the return and the report of sale made by the sheriff after the sale has occurred.

Judgment affirmed.

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Fansler, J.

— Appellee The Federal Land Bank of Louisville brought this action under section 3-1301 et seq., Burns’ Ann. St. 1933, §941 Baldwin’s 1934, to recover possession of real estate which it had purchased at a sheriff’s sale upon a decree foreclosing a mortgage. It appears from the pleadings that the judgment and decree foreclosing the mortgage had not been read in open court before it was signed by the judge. This is made the basis of an assignment of error by appellants. The question has been decided adversely to appellants’ contention in recent cases. Brant et al v. Lincoln Nat. Life Ins. Co., (1935), 209 Ind. 268, 198 N. E. 785; Laiskomis et al. v. Federal Land Bank of Louisville (1936), 210 Ind. 577, 4 N. E. (2d) 204.

The other error assigned involves the sufficiency of the evidence. Appellants contend that, plaintiff having alleged in its complaint that it has a fee-simple title, it must prove a fee-simple title; that such a title can be established only by proof of a chain *502 of title from the government down; and that evidence of title by sheriff’s deed upon sale pursuant to a valid judgment and decree of foreclosure is not sufficient. No authorities are cited that sustain this view. The complaint does recite that the plaintiff’s title is in fee simple, but it alleges also, specifically and in detail, that plaintiff derived its title by sheriff’s deed upon a sale pursuant to a valid judgment and decree of foreclosure. Proof sustains this specific allegation, and it is sufficient to sustain the judgment.

It is also contended that the sale was invalid for the reason that the sheriff’s return in one instance referred to the property sold as the property of the “defendant,” and that therefore there was no proof as to whose property was sold, as there were several defendants. This was obviously a typographical error, since the plural is used in other instances, but, in any event, a valid sale could not be defeated by an irregularity in the return and the report of sale made by the sheriff after the sale has occurred.

Judgment affirmed.

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5 N.E.2d 884, 211 Ind. 500, 1937 Ind. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dietrich-v-federal-land-bank-of-louisville-ind-1937.

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