Harrison v. Doe, on the Demise of Rapp

2 Blackf. 1, 1826 Ind. LEXIS 6

• Court: Indiana Supreme Court
• Decided: November 6, 1826
• Status: Published

Opinion

Scott, J.

On two judgments obtained by Frederick Rapp against the bank of Vincennes in June, 1822, executions of fi. fa. were issued and levied on the premises in controversy. After tbe return of those executions, writs of venditioni exponas were issued, and on the 20tb of September, 1823, the property was sold, and Rapp became the purchaser for the sum of 565 dollars, and received the sheriff’s deed. By the statute in force at the time of this sale, it was provided that where the judgment had not been replevied, no real property should be sold, on execution, for less than one-half of its real value. Stat. 1820, p. 4

(1). The judgment in this case was not replevied, the property was valued according to the provisions of the statute, and the real value, thus ascertained, was 4,640 dollars. Nothing less than 2,320 dollars was a legal hid, and without a legal hid there could be no legal sale. Any sum hid for the property less than 2,320 dollars was as no hid at all; and in that case the sheriff ought to have returned, that the property remained unsold for want of buyers..

Judah, for the plaintiffs. Tabbs, for the defendant.

How far a stranger to the title of the execution-defendant, or a person claiming under a title adverse to the title of the hank, could take advantage of this circumstance in his defence in an action of ejectment; or how this irregularity would affect a stranger, purchasing at the execution-sale, for a valuable consideration, without notice; are questions not within the case. Here the defendants claimed title as assignees, and privies in estate to the bank; and the property was purchased by the execution-plaintiff, who must be considered a purchaser with full notice, and accountable for all irregularities. Simonds v. Catlin, 2 Caines, 61.—Goodyer v. Junce, Yelv. 179.—Parsons v. Loyd, 3 Wils. 341.-Read v. Markle, 3 Johns. R.525.—Lawrence v. Speed, 2 Bibb, 401.—Hayden v. Dunlap, 3 Bibb, 216.

The sale in this case was erroneous, and the sheriff’s deed, made in pursuance of that, sale, conveyed no title to the purchaser.

On this ground, and without examining further into the merits of the case, the judgment is erroneous and must he reversed.

Per Curiam.

The judgment is reversed with costs.

THIs statute is repealed. The sheriff now first offers for sale the rents and promts of the premises for seven years; and if they will not sell for a sufficient sum to satisfy the execution, he then sells llie fee-simple to the highest bidder. R. C. 1831, p. 235. For the statute law of the different states on this subject, vide 4 Kent’s Comm. 2d ed. 428-438. Vide, also, as to the lien of judgments on real estate, Ridge v. Prather, Vol.1. of these Rep. 401, 404, note (2).—R.C. 1831, pp. 274,275.