Milmine v. Bass

29 F. 632

• Court: U.S. Circuit Court for the District of Indiana
• Decided: December 15, 1886
• Status: Published

Opinion

Woods, J.

I do not agree with the master that, under the Indiana decisions, the levy of the Stearns execution upon the property in question was void, though it was irregular, because of the previous levy upon other real estate. It is quite clear that the property' first levied upon, considering the incumbrances upon it, and the wife’s contingent interest, was not sufficient to satisfy more than a small part of the sum due upon the writ; and, this being so, the decision in Lindley v. Kelley, 42 Ind. 294, is direct authority that the second levy, and the sale under it, is not to be held void merely because of the first levy, which had been abandoned by the owner of the execution. It was doubtless an irregularity to take a new execution, as was done in this case, and such an irregularity as may justify an interference by the court in order to do equity between the parties, if it is apparent that substantial rights have been violated by the sale. But, the property first levied upon having been insufficient in value, that levj did not, in my judgment, operate, under the Indiana decisions, to satisfy the judgment in the full sense; and if, on account of the irregular issue of the second execution, the sale made under it should be set aside, it would result that the judgment, notwithstanding the first levy, must be considered as having been in force all the time, and, by virtue of it, Bass, being subrogated to tbe rights of Stearns & Co., who were not made parties to the complainant’s foreclosure suit, would be entitled to redeem from the sale made to the complainant upon his decree.

Upon the second point, it is quite clear that the complainant might have compelled the sale of the other property of Bowser to satisfy the Stearns execution, before resort to the property covered by their mortgage; but, the complainant not having gone to the courts for this relief, the execution plaintiff was not bound to inquire into the equities in this respect, and to direct (he order of sale accordingly; and it follows that the saléis not void, nor to be annulled, on this account, at the instance of complainant. Sansberry v. Lord, 82 Ind. 521; Wiggin v. Suffolk, 18 Pick. 145; S. C. 29 Amor. Doc. 576; James v. Hubbard, 1 Paige, 228; Clowes v. Dickensod, 5 Johns. Ch. 235; S. C. (on appeal) 9 Cow. 403; Wise v. Shepherd, 13 Ill. 41.

Nevertheless the complainant, as some of the cases just cited show, is not without remedy; but from the defendant, who obtained an inequitable advantage by means of the sale as made, is entitled to compensation to the extent of that advantage, that is to say, to the extent of the value of the property so sold, not exceeding the amount due complainant upon his mortgage debt. The report of the master is perhaps not explicit on the point, but, as I understand, it is not, questioned that the property of Bowser, which was purchased by Bass, and which ought to have been sold on the Stearns’ execution before resort to the lands mortgaged to the complainant, was worth, over and above all incumbrances created before the execution of complainant’s mortgage, more than the amount due upon that mortgage, treated as a subsisting security; and, this being so, the decree here ought to bo that the defendant pay to the plaintiff, within a time stated, the amount due upon their mortgage, with stipulated interest to date of payment, and that, in default of this, the sale to the defendant be annulled, and the title of the complainant under his purchase be confirmed.

The rights of the parties are not affected, in my opinion, by the extension of time granted upon payment of interest in advance upon the Stearns judgment. The extension was granted upon the supposed consent of Bowser & Go., and, if Bowser’s partners were not bound by that consent, the agreement to extend was not binding on the creditor, and execution might have issued at any time, the interest paid in advance being returned or treated as a payment upon the judgment. Albright v. Griffn, 78 Ind. 182.

Tiie sale was not invalid because the proper credits for payments were not noted on the execution, Bass, the purchaser, having no knowledge of the facts. The purchaser at an execution sale is not bound to have examined the dockets to see if the clerk has done his duty in this respect. The presumption is that the officer has done his duty in such particulars. Fowler v. Griffin, 83 Ind. 297.

In so far as the master’s report is inconsistent with the foregoing, the exceptions thereto are sustained, and in other respects overruled.