McCabe, C. J.
— Appellee sued the appellants in the court below to recover possession of lots 5 and 6 in D. D. Dykeman’s first addition to Logansport, Cass county, Indiana. Issue, trial by the court, special finding, conclusions of law and judgment thereon for appellee.
This was the second trial of the cause. On the first trial, the appellants recovered judgment. A new trialas a matter of right under the statute was granted the appellee, resulting in a judgment, as above stated, in his favor.
There are twenty assignments of error by appellants, and nine assignments of cross-error by the appellee. Many of these assignments we shall find it unnecessary to examine.
The first assignment questions the overruling of a demurrer to the complaint. The complaint is in the usual statutory form, except that instead of alleging, as the statute provides, that “the defendant unlawfully keeps him out of possession,” it alleges that the defendants are in the unlawful possession of said real estate, and wrongfully detain the same from the possession of said property.”
If the pleader intended to use the word property, it would clearly make the complaint bad, because section 1054, R. S. 1881, imperatively requires in such a complaint the allegation “that the defendant unlawfully [123]*123keeps the plaintiff out of possession,” or its equivalent. Second Nat’l Bank, etc., v. Corey, 94 Ind. 457; Mansur v. Streight, 103 Ind. 358; Simmons v. Lindley, 108 Ind. 297.
But it appears clearly enough that the pleader intended to use the word “plaintiff” in the place where he has used the word “property.” The civil code requires us to regard the complaint as having been amended in that respect. R. S. 1881, sections 396, 398, 658.
Besides, there was a special finding in this case, and if it supplied or found the existence of the fact missing or wanting in the complaint, or if it failed to so find, in either case, the ruling on the demurrer would be harmless, because in either event a correct declaration of the law upon the facts found would reach the same legal result as would have been reached with a correct ruling on the demurrer, or with the defect in the complaint obviated by an amendment.
We are not unmindful of the rule that forbids consideration of facts in a special finding or verdict that are outside of the issues. Facts in a special finding or verdict may, in a case of this kind, be said to be outside of the issues only when they are outside of the scope of the issues; otherwise there could be no such thing as a verdict curing a defective complaint. The missing fact, in the complaint was within the scope of the complaint, because the complaint being for the recovery of the possession of real estate under the statute, the allegation that the defendant unlawfully keeps the plaintiff out of possession was within the scope of the complaint, though that direct averment was not made.
Where a good complaint is held bad a different result must follow. A special finding or verdict could not either cure or render the error harmless, because the facts in such pleading, even if they found their way into [124]*124the special finding ox verdict, conld not be considered for any purpose. Such facts in such a case would not only be outside of the issues but outside of the scope of the issues. It is clear, therefore, that the overruling of the demurrer to the complaint was a harmless error, if error at all. State, ex rel., v. Vogel, 117 Ind. 188; Martin v. Cauble, 72 Ind. 67; Douthit v. Douthit, 133 Ind. 26; Reddick v. Keesling, 129 Ind. 128.
There were seven paragraphs of answer setting up affirmative matter, besides the general denial. There were nearly as many affirmative paragraphs of reply. Many errors and cross-errors are assigned on rulings on demurrers to the affirmative answers and replies. The answer of general denial authorized every defense to be given in evidence which appellants had, either legal or equitable. In such a case a bad affirmative pleading-held good is harmless, because when its facts are found in the special finding or verdict a correct declaration of the law arising on such facts puts the injured party in the same attitude he would have occupied had the pleading been held bad on the demurrer, ‘and a good affirmative pleading held bad on demurrer in such a case is harmless, because its facts were still admissible under the general denial. See authorities last cited. Therefore, rulings as to the sufficiency of answers or replies, even though erroneous, were harmless errors whether committed against appellant or appellee. The next error urged is the refusal of the court below to require the appellee’s attorney to produce and prove his authority to prosecute the action under section 970, R. S. 1881. This was such a motion as required a bill of exceptions to present it to this court. There is a paper, copied into the transcript in the form of a bill of exceptions purporting to set forth the motion and the action of the court thereon, but it is not signed by the judge. There[125]*125fore, there is no question presented to this court as to such refusal of the court to require appellee’s attorney to prove his authority to act. There was a demurrer sustained to the cross complaint of appellant, Ross, and the correctness of that ruling is the next question'presented. It is insisted that as the same facts could have been given in evidence under the answer of the general denial, sustaining the demurrer to the cross-complaint was harmless, if even it was error.
It is true the facts set up in the cross-complaint, if sufficient to constitute a cause of cross-action, are also sufficient in this case to constitute a defense to the original action, and, so far as that defense is concerned, we have already seen that it was a harmless error to hold the cross-complaint-bad ; but the very object in pleading the facts in the form of a cross-complaint is to accomplish something more than the mere defeat of the original action. It is to secure affirmative relief, such as quietingthe cross-complainant’s title, or that whicbis the same thing, to enjoin the other party from setting up title to the premises through a certain judgment, founded on another judgment. That was asked in this case, and restitution and other relief also were asked in the cross-complaint, neither of which could have been granted on a mere defeat of the ejectment suit.
In an action to recover possession of real estate, as was the case here, a pleading filed by the defendant in which he claims title to the land and asks the title to be quieted, or any other affirmative relief, constitutes a counterclaim. Tabor v. Mackkee, 58 Ind. 290; Wilson v. Carpenter, 62 Ind. 495.
In such a case the matter set up in the counterclaim or cross-complaint, while it may defeat the original action, like a mere defense, its purpose is to go beyond a mere defense and afford to the cross-complainant affirma[126]*126tive relief, which is more than a mere defeat of the original action. Harness v. Harness, 63 Ind. 1; Jones v. Hathaway, 77 Ind. 14; Branham v. Johnson, 62 Ind. 259.
The cross-complaint was, in substance, as follows: “The defendant, George E. Ross, by way of cross-complaint against the plaintiff, Henry J. Banta, says: That on the 8th day of February, 1875, and for more than five years prior thereto, one Catherine Peters was the owner of the lots in complaint mentioned, describing them; that for the years 1873 and 1874 taxes were regularly assessed against said lots in the sum of $50, which became delinquent, for which the county treasurer sold them to one Joseph Uhl for $53.27, to whom a proper certificate was issued by the auditor of said county, and, there having been no redemption at the proper time, a deed was duly executed to him for said property pursuant to said sale; that Uhl remained in possession un-til July 4, 1881, when he sold and conveyed it to one Margaret Sheehan, who afterwards intermarried with one Andrew J. Ream; that she died in 1889, intestate, leaving surviving her as her only heir at law her husband, Andrew J. Ream, who conveyed said lots to cross-complainant by deed February 27, 1890; that said Uhl had, while he held the tax title aforesaid, and on February 24, 1879, recovered judgment in the superior court of Cass county, Indiana, against said Catherine and Abraham Peters, her husband, quieting his title to said property under said tax deed; that said Margaret Ream took and held possession of said property from July 4, 1881, until her death, and her husband until his conveyance to the cross-complainant; that said Uhl and Ream paid $400 taxes on said property under said tax sale, which, with interest and penalties to this date, amount, to $2,000; that said Banta claims some interest in or [127]*127title to said property as follows, viz.: That in the year 1873 Abraham Peters and Catherine Peters executed a mortgage upon said property, and also on lot 4 of the same addition, also owned by said Catherine, to one Timothy Crawley, who, on December 23, 1878, recovered judgment of foreclosure thereof in the superior court of said Cass county against said Abraham and Catherine Peters, who were the only parties defendant in said judgment; that said Crawley, on the 27th of January, 1879, assigned said judgment to one Alexander S. Guthrie; that on the-day of August, 1880, said lots 4, 5 and 6 were sold by the sheriff of said Cass county to satisfy said judgment in foreclosure at which sale said Guthrie became the purchaser; that on the -day of -, 188 — , said Guthrie conveyed lot 6 aforesaid to said Banta, and afterwards conveyed to said Banta said lots 4 and 5; that afterwards said Guthrie and Banta jointly sued said Catherine and Abraham Peters and Margaret Sheehan in the circuit court of said county to set aside said sheriff’s sale, on the ground that the sale had been made without relief, while the judgment was subject to relief from valuation and appraisement laws, asking also that the tax title of said Margaret Sheehan be set aside and they be permitted to redeem from the same; that said suit resulted in favor of said Guthrie and Banta, setting aside said sheriff’s deed and directing a resale of said property against all said defendants under the original decree of foreclosure; that said Margaret Sheehan appealed from said latter judgment to the Supreme Court where said judgment was reversed and set aside March 14, 1889; that pending said appeal said Guthrie and Banta caused said property to be resold, on January 2, 1886, by the sheriff of said county, pursuant to said judgment ordering a resale, said Banta becoming the purchaser of said [128]*128lots 5 and 6 at said resale, and afterwards received a sheriff’s deed therefor; that on the 27th day of January, 1887, said Banta commenced suit against said Abraham and Catherine Peters and said Margaret Ream (nee Sheehan) for possession of said lots 5 and 6, and, in his abstract of title filed with his complaint, set forth that he derived his title through said sheriff’s sale and deed to said Guthrie, and also through said sheriff’s sale’made January 2, 1886, aforesaid; that to this complaint and abstract of title said Ream answered that she was the owner and in possession of said property under said tax sale aforesaid, specifically setting out said title, also that she was the owner of said property under said sale aforesaid, and that she and her grantor had been in possession of said property thereunder since 1875, and that the cause of action sued on did not accrue within five years before the commencement of said action; and further that said. Banta bid at said sale of January 2, 1886, $1,-645.44, for which said sheriff had sold the property to him, but that he had not paid said bid up to the commencement of said action, each of which answers was held good by the court, and sufficient to defeat said action; that to these several answers and defenses said plaintiff replied first by general denial, and second affirmatively that the matters and things pleaded in these special answers had been passed upon and adjudicated by and in said judgment of the Cass Circuit Court rendered October 19, 1886, aforesaid; that said cause was taken, on change of venue, to the Pulaski Circuit Court, where, upon the issues so formed, a trial was had and a special verdict was returned by the jury under the issues aforesaid; that said jury, in their verdict, found the rendition of said original judgment in foreclosure, the sale thereunder to said Guthrie in August, 1880, the set[129]*129ting aside of said sale by the Gass Circuit Court in October, 1885, the resale under said last judgment in January, 1886, the issuing of the sheriff’s deed on said sale in January, 1887, the commencement of said action in ejectment, and that said defendants were in possession of said property and retained possession thereof during the year next after said sale, and that the title and interest of said Margaret Sheehan in and to said property had been tried and determined against her in said, action brought by said Guthrie and Banta against her and others, and in which said judgment was rendered in October, 1885, as aforesaid, and cross-complainant avers that upon these facts, so found by the jury, and which were the only facts found by said jury of title in said Banta and the only right he had to possession of said property, said Pulaski Circuit Court on the-day of May, 1887, rendered judgment in favor of said Banta for possession of said property; that upon said judgment a writ of possession was issued to the Sheriff of Cass county, Indiana, who on the --day of-, 1890, executed said writ by ejecting said Abraham and Catherine from said property and all other persons mentioned in said writ and delivered up possession of said property to said Banta. And the cross-complainant avers that said Banta has no title or right to the possession of said property other or different from that above specifically set out.
■Wherefore cross-complainant asks the following relief, viz.:
“1. That as a grantee of Margaret Ream he have restitution of said property.
“2. That said Banta be forever enjoined from setting up any title to said property or right to the possession thereof under said judgment of the Pulaski Circuit Court, rendered May, 1887.
[130]*130“3. That he account for the rents and profits of said property, and
“4. All other proper relief.”
It is earnestly contended that this cross-bill is not sufficient, because Ross having purchased from Ream’s heir, who inherited from her since the recovery of the judgment against her and others for the possession in the Pulaski Circuit Court, he, it is claimed, is as much bound by that judgment (so far as this property is concerned), as if he had been one of the defendants in that judgment. And so we hold that he is as much bound by that judgment (so far as it affects his title to this property), as if he had been one of the defendants therein.
Therefore, if Margaret Ream (through whom Ross claims title, and who was a defendant in the Pulaski Circuit Court judgment), could maintain a bill to enjoin that judgment had she lived and retained her title, then Ross can do the same, as he is her successor in the title; and, on the other hand, if she could not maintain such bill, then Ross can not.
The cross-complaint in this case is in effect a bill to enjoin the Pulaski Circuit Court judgment, among other things. Does it state facts sufficient to warrant that relief ? Appellee contends that it does not, because it is a collateral attack upon a judgment of a court of competent jurisdiction, and cites Pierce v. Banta, 9 Ind.App. 376, in support of that proposition. That case lends some sanction to that contention, though it was not a suit to enjoin.
Appellee’s counsel assume that there can not be a collateral attack on a judgment in any case. While it is true that a judgment can not be collaterally impeached in an action at law, yet it is equally true that a judgment may be collaterally attacked in a suit in equity where any fact exists which clearly proves it to be against conscience to execute the judgment, and of [131]*131which the injured party could not have availed himself in a court of law, or which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents. High Inj., Sec. 114; Hogg v. Link, 90 Ind. 346; Walker v. Heller, 90 Ind. 198; Harman v. Moore, 112 Ind. 221.
The cross-complaint being in the nature of a suit in equity to enjoin a judgment at law, that the attack thereon is collateral is no objection to the maintenance of such suit. In Walker v. Heller, supra, very nearly the question here under consideration was decided by this court in favor of appellants’ contention. In that case a suit on a note was tried, resulting in a finding for the defendant, which was entered of record; afterward the court permitted the plaintiff, over objection, to dismiss his suit before judgment on the finding, from which the defendant appealed to this court, where the judgment of dismissal was reversed, with instructions to the trial court to enter judgment upon the finding in favor of the defendant, which was accordingly done on the return of the case to the trial court. Pending the appeal, and before the decision thereof, the plaintiff brought another action on the note, and recovered judgment before the reversal in the other case. After the reversal and entry of judgment for the defendant on the return of the case from the Supreme Court, the defendant brought suit to enjoin the judgment recovered pending the appeal, which injunction was refused in the trial court, but this court reversed that ruling. It is there said: “It is well settled that a court of equity will restrain proceedings upon a judgment at law, where its enforcement is against conscience, and the same has been recovered by an unfair advantage. Wherever, by accident, mistake, fraud or otherwise, an unfair advantage has been obtained in [132]*132proceedings at law, and it is against consience to make use of such advantage, a court of equity will restrain the party from making use of the same; and after judgment any facts which prove it to be against conscience to execute such judgment, and of which the injured party could not avail himself in defense of the suit, will authorize the court to interfere by injunction and restrain the party from enforcing the judgment.”
The case made here for the interposition of equity is much stronger than the case from which we have quoted. There, there were two judgments on the same cause of action, one in favor of one of the parties and the other in favor of the otlier, and equity interposed in favor of the party who last recovered, though he should have been the first to recover. But here is a case where a party has recovered a judgment for the possession of real estate on a title established wholly and solely by a judgment which was the only evidence of title, which judgment has been overthrown by an unqualified reversal.
Embry, Admr., brought suit in the Supreme Court of the district of Columbia, against Stanton and Palmer, and recovered judgment for $9,185.18. He brought suit on that judgment in a State court of Connecticut. Thereupon they filed their petition in equity in the same court, the object and prayer of which were to obtain a perpetual injunction restraining him from prosecuting his action upon that judgment or in any manner enforcing it against them, setting forth the reasons therefor. The judgment was enjoined in the State court, which was, on appeal to the State Supreme Court, affirmed, and Embry appealed to the Supreme Court of the United States. (Embry v. Palmer, 107 U. S. 3)
That court in that case said: “The question' then arises, what causes would have been sufficient in the District of Columbia, according to the law then in force, [133]*133to have authorized its courts to set aside the judgment recovered there by Embry against Stanton and Palmer? This is answered by the decision of this court upon the point, in the case of Marine Insurance Co. of Alexandria v. Hodgson, 7 Cranch, 332.
“That was a bill in equity, filed in a court of the District of Columbia, perpetually to enjoin the collection of so much of a judgment at law recovered in the District as was in excess of an amount claimed to be the sum equitably due. The grounds of relief alleged were that a fraud had been practiced upon the underwriters in a valued policy of marine insurance, by an overvaluation of the ship, and that the complainant had been prevented from making the defense at law.
“Chief Justice Marshall, delivering the opinion of the court, affirming the decree of the court below dismissing the bill, stated the rule as follows: ‘Without attempting to draw any precise line to which courts of equity will advance, and which they can not pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said, that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law; or which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery. On the other hand, it may with equal safety be laid down as a general rule, that a defense can not be set up in equity, which has been fully and fairly tried at law, although it may be the opinion of that court, that the defense ought to have been sustained at law. * * * This was held to be the law prevailing in the District of Columbia, not by reason of [134]*134any local peculiarity, but because it was a general principle of equity jurisdiction.
“It was repeated in Hendrickson v. Hinckley, 17 How. 443, where the rule was condensed by Mr. Justice Curtis into the following statement: ‘A court of equity does not interfere with a judgment-at law, unless the complainant has an equitable defense, of which he could not avail himself at law, because it did not amount to a legal defense, or had a good defense at law, which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or his agents.’ Creath v. Sims, 5 How. 192; Walker v. Robbins, 14 How. 584, and in Brown v. County of Buena Vista, 95 How. 157.
“This is the doctrine recognized and applied by the Supreme Court of Errors of Connecticut in the case of Pearce v. Olney, 20 Conn. 544. That was a bill in equity to restrain the collection of a judgment recovered in New York, upon the ground that the complainant had a good defense at law to the action, which he was prevented from making by the fraud of the defendant. It was there said by the court: ‘It is well settled that this jurisdiction will be exercised, whenever a party, having a good defense to an action at law, has had no opportunity to make it, or has been prevented by the fraud or improper management of the other party from making it, and by reason thereof a judgment has been obtained which it is against conscience to enforce.’ ”
Such is the general current of authority touching the power of a court of equity to enjoin judgments at law, being in full harmony with the principles announced by this court in Walker v. Heller, supra.
But there was one consideration this court lost sight of in the decision of that case, and that is the effect the civil code establishing the reformed system of procedure has had on the right to maintain a suit to enjoin a judg[135]*135ment at law such as the one upheld in that case. It is a well settled principle that the jurisdiction in equity to enjoin a judgment at law in proper cases, although well established, is not regarded as a favorite one with courts of equity. A bill seeking relief of this nature is scrutinized with extreme jealousy, and the grounds upon which the interference will be allowed are confessedly somewhat narrow and restricted. 1 High Inj., section 113.
Another well established principle of equity is that courts of equity will not lend their aid by injunction against judgments, or any relief by injunction, where the party invoking such aid has a plain and adequate remedy at law. 1 High on Injunctions, section 173; Thatcher v. Humble, 67 Ind. 444; Bishop v. Moorman, 98 Ind. 1; Baragree v. Cronkhite, 33 Ind. 192; Schwab v. City of Madison, 49 Ind. 329; Sims v. City of Frankfort, 79 Ind. 446; Allen v. Winstandly, 135 Ind. 105.
Did the appellant Ross have an adequate remedy at law? Margaret Ream (nee Sheehan) died, as cross-complainant avers, in 1889, leaving Andrew J. Ream, her husband, as her sole heir at law, who conveyed to appellant Ross, February 27, 1890, and that the judgment for a resale of the lots which was the sole producing cause and foundation of the Pulaski Circuit Court judgment, was reversed by this court on March 14, 1889. When Margaret Ream died, she had a right to maintain a complaint to review the Pulaski Circuit Court judgment on account of the reversal of the judgment for a resale, if that.reversal had taken place before her death, and that right would have descended to her heir, Andrew J. Ream, cross-complainant’s grantor, under the statute, as we shall hereinafter see.
Whether she died before or after the 14th of March, .1889, the date of reversal, is not stated, though it is [136]*136stated that she died in that year. The reversal of that judgment constituted material new matter for which the statute authorizes a judgment to be reviewed and reversed. The statute authorizes the review of a judgment for error of law appearing in the proceedings and judgment within one year, or for material new matter discovered since the rendition thereof within three years. R. S. 1881, section 616.
When the jurisdictions of law and equity were separate, and before the adoption of our reformed procedure, bills of review were maintainable only for relief against decrees in equity, and they could not be maintained to> secure relief from judgments at law such as the Pulaski Circuit Court judgment was. 1 Pom. Eq. Jur., section 51; Story’s Eq. Pl., sections 404, 405 and 406.
Prior to the adoption of the new system, a bill to enjoin that judgment would have been maintainable because that would have been the only remedy. The ordinances in chancery of Lord Chancellor Bacon, which have never been departed from, authorized a bill to review only decrees in chancery for error appearing on the face of the record, and for new matter discovered since the rendition of the decree. This section of the civil code last above cited extends that same right to all judgments, whether in the nature of a judgment at law or a decree in equity. It embodies substantially the ordinances in chancery above mentioned, and extends them to all judgments.
The section 615 of the code above referred to, however, limits the right to review to a party to any judgment, and the heirs, devisees or personal representatives of a deceased party.
The appellant Ross was not a party to the Pulaski Circuit Court judgment, but he is a purchaser of the title of Margaret Ream, who was a party, after her death, from [137]*137her heir, after the cause for review of that judgment had arisen, namely, after the reversal of the judgment for a resale of said lots. His grantor, Andrew J. Ream, therefore, being an heir of one of the parties to the Pulaski Circuit Court judgment, and having conveyed to appellant Ross after the judgment for resale had been reversed, he, as such heir, had a right, at the date of such conveyance, to maintain a suit to review said Pulaski Circuit Court judgment for and on account of the new matter caused by such reversal, and hence, having such legal remedy, he had no right to maintain a suit to enjoin the Pulaski Circuit Court judgment, and by the conveyance to appellant Ross of all his rights, he must be held to take such rights subject to all the equities such rights were subject to in the hands of his grantor, and one of those equities was that said grantor, Andrew J. Ream, as heir of Margaret Ream, his wife, had the right to review the Pulaski Circuit Court judgment, and because he had that legal remedy had no right to maintain a suit to enjoin that judgment, and for that reason appellant Ross has no right to maintain a suit to enjoin it.
We disapprove of the conclusion reached in Wallcer v. Heller, supra, because in that case the injured party was a party to the judgment sought to be enjoined, and he had a right to maintain a complaint to review that judgment for the new matter arising out of the reversal of the judgment of dismissal and the subsequent judgment rendered pursuant' to the order of this court on such reversal, and- hence he had an adequate remedy at law which ought to have precluded him from maintaining the suit to enjoin. This consideration escaped the attention of this court when that case was decided. But the principles announced in that case are correct as applied to a proper case. We, therefore, conclude that the court be[138]*138low did not err in sustaining the demurrer to the cross-complaint.
The appellant, Ross, in his defense under the general denial, set up another and different title in himself to said lot six through a sheriff’s sale to himself. The court below, in its ninth finding of facts, finds that from the judgment ordering a resale of said lots, as above stated, Peters and Margaret Sheehan appealed to the Supreme Court, without bond, where said judgment was in all things reversed on the 14th of March, 1889 (119 Ind. 44), and on the 11th day of May, 1889, said Supreme Court rendered a judgment in said cause in favor of said Peters. and Sheehan and against said Alexander S. Guthrie and Henry J. Banta in the sum of $55.75 as costs made by said appeal in said court; that upon said judgment for costs in the Supreme Court an execution was, in due form, on July 27, 1889, issued by-the clerk of said Supreme Court to the sheriff of the Supreme Court, commanding him to collect the amount of said judgment, interest and costs out of the property of said Alexander S. Guthrie and Henry J. Banta; that said sheriff of the Supreme Court delivered said execution to John Donaldson, sheriff of Cass county, Indiana, for collection, and said Donaldson, as such sheriff, on August 27, 1889, levied said execution upon all the right, title and interest of said Guthrie and Banta in and to lots 5 and 6 in D. D. Dykeman’s first addition to the city of Logansport, Indiana; that on July 1, 1889, said Banta received from the United States Government an appointment as physician to the Marcorelo Indians, at Marcorelo, in the territory of New Mexico, and left Indiana early in July, 1889, and has remained in New Mexico ever since, being engaged in said government service.
He left this State with the intention of returning [139]*139thereto, and such has ever since been his intention, when his said service shall terminate. At and prior to the time of leaving Indiana, he was a resident householder of Cass county, Indiana.
In August, 1889, prior to the said levy, the wife of said Banta stored a part of their household goods in Logansport, Indiana, and took another part and her children with her to her husband, and since that time she and her husband have been keeping house in New Mexico, and have not since that time been keeping house in the State of Indiana. Though a resident of this State and only temporarily absent therefrom in said government service, he has not, since leaving Indiana, been a householder therein, but has been a householder in said territory of New Mexico. Before the day fixed for the sale of said real estate under said execution, said Donaldson, as such sheriff, caused the same to be duly appraised, the form of appraisement of the fee-simple of said lots being as follows: “We appraise the fee-simple interest, if they own it, of A. S. Guthrie and Henry J. Banta in and to lots 5 and 6 at $1,500, deducting the following liens and incumbrances: Mortgage to D. P. Baldwin, $200; tax title to Margaret Sheehan, $900; total, $1,100. We appraise the fee-simple of A. S. Guthrie, if he owns it, in lot 5, D. D. Dykeman’s 1st addition, $400; in lot 6, in D. D. Dykeman’s 1st addition, $1,100. We appraise ■the fee-simple interest of H. J. Banta, if he owns it, in lot 5, D. D: Dykeman’s 1st addition, $400; in lot 6, D. D. Dykeman’s 1st Addition, $1,100.” The appraisers also appraised the rents and profits of each of said lots for each year for seven years, and made proper affidavit as to the correctness of their appraisement.
After the appraisement was made, Banta’s attorney produced and handed to said Donaldson, as such sheriff, Banta’s schedule and affidavit for exemption, and named [140]*140his appraiser to said sheriff,¡and demanded of said sh'eriff that his property be appraised and set off to him under the $600 exemption law of Indiana. The schedule set forth his personal property and the real estate in controversy, and attached thereto was an affidavit made by said Banta, setting forth that the same was all his real estate and personal property within or without the State of Indiana; all his money on hand or on deposit within or without the State of Indiana, rights, credits, choses in action, and all personal property of every description whatever belonging to him or in which he had any interest on the 27th day of July, 1889, showing what he had sold since that date, the amount he had received therefor and how he had disposed of the proceeds.
The sheriff, after receiving said schedule and affidavit without appraising the personal property, and without making any other appraisement'Of the real estate than that hereinbefore mentioned, did, as he states in his return to said execution, “Set off to Henry J. Banta, as exempt from execution, all the personal property named and described in his affidavit; also lot 5 in D. D. Dyke-man’s first addition to Logansport, as appraised in the valuation law inventory heretofore made.”
After having duly advertised said lot 6 for sale at sheriff’s sale, under said execution from the clerk of the Supreme Court, the advertisement being signed not by the sheriff of the Supreme Court but by John Donaldson, sheriff of Cass county, Indiana, by M. J. Gallagher, deputy.
Said sheriff of Cass county, on September 28, 1889, sold at sheriff’s sale all the right, title and interest of said Guthrie and Banta in and to said lot 6 to the defendant Ross, for the sum of eighty dollars, that being more than two-thirds of the appraised value of said lot, over and above the incumbrances thereon. After the [141]*141year for redemption had expired and there having been no redemption from said sale, the sheriff of the Supreme Court, on the 24th day of October, 1890, executed, acknowledged, and delivered to said Ross a sheriff’s deed for said lot 6, upon the sale thereof made as aforesaid, which deed has never been recorded.
The conclusions of law relative to the validity of the sheriff’s sale and deed to appellant Ross are as follows:
“5. That defendant Ross has no title to said lot 6 by virtue of the sheriff’s sale under said execution issued by the clerk of the Supreme Court, for the reason that the plaintiff was entitled to his exemption, and such exemption was denied him.
“ 7. That the plaintiff is entitled to recover possession of the real estate in controversy against all the defendants, and also tb recover for the use of the premises, as against the defendant Ross, the sum of $167, less $55.75, with 6 per cent, thereon paid by said defendant Ross September 28, 1889, on the purchase of said lot 6 on said execution issued by the clerk of the Supreme Court, leaving due the plaintiff $106.25.”
We think the court below erred in these conclusions of law. The facts found show that Banta, though a resident of Indiana in law, yet that he was not a householder in this State, but was a householder in New Mexico at the time he demanded his exemption and when the sheriff ’s sale to appellant Ross took place. It is unnecessary to decide, and we do not decide, whether appellee Banta was a resident householder within the meaning of the language of the statute, R. S. 1881, section 703.
The conclusion of law was wrong for another reason. The execution, from a sale on which exemption was claimed, was for the collection of judgment for costs on the reversal of the judgment already mentioned ordering a resale of the lots in question. Such a judgment, it [142]*142has been held, is not a “ debt growing out of or founded upon a contract, express or implied,” and, therefore, not within the exemption statute. State, ex rel., v. McIntosh, 100 Ind. 439; Russell v. Cleary, 105 Ind. 502.
The exact question under consideration was decided by the Appellate Court in favor of the contention of appellant Ross in Donaldson, Sheriff, v. Banta, 5 Ind. App. 71. The appellee, Banta, sued the sheriff, Donaldson, for refusal to allow him his exemption from said execution, and recovered in the trial court, but Donaldson appealed and the Appellate Court reversed the judgment, holding that Banta was not entitled to any exemption from said execution, it being for costs.
The sheriff \s sale to appellant Ross is vehemently assailed by appellee’s counsel for other and different reasons than those assigned for holding it valid by the court below in its conclusions of law. As the only reason stated in those conclusions for the invalidity of the sheriff’s sale to appellant Ross was that Banta was entitled to exemption, which the sheriff had refused him, it might be taken as an -implied conclusion of law that there was no other legal objection to said sale and deed.
The conclusion against the validity of that sale is attempted to be supported by contending that the sale was invalid because the notice thereof was signed by the sheriff of Cass county in his official capacity as such sheriff, and not as the deputy of the sheriff of the Supreme Court, and that while the sale was made by the sheriff of Cass county, as such, the deed was executed by the sheriff of the Supreme Court.
The statute provides that “When any process, rule, or order shall come into the hands of such sheriff (of the Supreme Court), he may transmit the same by mail to the sheriff of the county where the same is to be served. [143]*143The sheriff of each county shall be his deputy, but shall be liable on his own bond for all acts done by him as such deputy.” R. S. 1881, section 5834.
The advertisement of the sale would naturally describe the process as an execution issued by the clerk of the Supreme Court to the sheriff of the Supreme Court, which such sheriff had delivered to the sheriff of the county. No complaint is made against the advertisement that it did not so show, but, on the contrary, the court below found that the sale “was duly advertised to take place under said execution from the clerk of the Supreme Court.”
If the sale was duly advertised, it appeared therefrom that such sale was to take place on an execution issued by the clerk of the Supreme Court to the sheriff of the Supreme Court, and by him delivered to the county sheriff. All persons are presumed to know the law, and that such an execution must be executed by the county sheriff, if executed by him at all, as the deputy of the sheriff of the Supreme Court. The county sheriff serves the process as the deputy of the sheriff of the Supreme Court. He is not deputy by appointment, but by operation of law. When he signs his name to a return of service of such process, or to publication notice of sale under such process, he is deputy to the sheriff of the Supreme Court by operation of law, and- his character as such deputy may be as well understood by the public from his official designation as county sheriff when the process has been designated and described, as if he should designate himself as deputy of the sheriff of the Supreme Court. This seems to be more clear when it is borne in mind that the county sheriff is liable on his own bond for all acts done by him as such deputy. McGruder v. Russell, Sheriff, 2 Blackf. 18.
Besides, it has been the universal practice in all cases, [144]*144so far as we know, under this statute, where a county sheriff served process directed to the sheriff of the Supreme Court, to sign his name to the return as sheriff of the county, and not as deputy of the Supreme Court sheriff. Such is the nature of the return to the process in this case, which brought the appellee into this court on this appeal.
Filed Sept. 26, 1893.
It would be an awkward procedure to sue the county sheriff on his own bond for an act done by him as deputy of the sheriff of the Supreme Court, if he did such act in the name of the sheriff of the Supreme Court and not in his own name. When the county sheriff does an act as the deputy of the sheriff of the Supreme Court, he does it by virtue of his office of sheriff of the county, which office, by operation of law, makes him the deputy of the sheriff of the Supreme Court. Therefore, when his official character as such county sheriff ánd the process from the Supreme Court appear, his character as deputy to the sheriff of the Supreme Court, without any designation of himself as the deputy to the sheriff of the Supreme Court, also sufficiently appears.
Even if the contrary condition were right and the advertisement ought to have been signed by the county sheriff as deputy of the Supreme Court sheriff, yet that was but a slight irregularity which can not invalidate the sale, where no injury is shown to have resulted to the execution defendant on account thereof. Rose v. Ingram, 98 Ind. 276; Lowry v. Reed, 89 Ind. 442.
The judgment is reversed at appellee’s costs, with instructions to the court below to restate its conclusions of law relating to the sheriff’s sale of lot 6 aforesaid, in accordance with this opinion, and to render judgment thereon in favor of appellant Ross.
As to lot 5, the judgment is affirmed.