Sheldon v. Arnold

Indiana Supreme Court

Sheldon v. Arnold

17 Ind. 165, 1861 Ind. LEXIS 337

CourtIndiana Supreme Court

DecidedNovember 30, 1861

StatusPublished

Cited by1 cases

This text of 17 Ind. 165 (Sheldon v. Arnold) 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

Sheldon v. Arnold, 17 Ind. 165, 1861 Ind. LEXIS 337 (Ind. 1861).

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Opinion

Davison, J.

This' was an. action by the appellee, who was the plaintiff, to enjoin the sale, on execution, of certain real estate, described as lots 17 and 18, in Legonier, Noble county. The appellants were the defendants below. Defendants demurred to the complaint; but their demurrer was overruled, and thereupon they filed their answer, to which the plaintiff demurred. This demurrer was sustained, and final judgment rendered for the plaintiff, enjoining the sale, &c.

The facts of this case, as they are set forth in the pleadings, are substantially these: Sheldon, Hoyt and Van GraasbeeJc, on December 28, 1857, recovered two judgments against Johnson Ourl and James Smalley, each for $200, before a justice of the peace of Noble county; and on the 20th of that month, filed transcripts thereof in the clerk’s office of the Noble Common Pleas, which were duly certified by the' justice, and by the clerk of said' Court duly entered upon the order book. On Jamtary 5, Í 858, the plaintiff, for the consideration of $300, then paid to Johnson Ourl, purchased of him the real estate in question, and received from him a deed in fee simple, pursuant to the purchase; and the [166]*166plaintiff avers that when he received the deed, he had no knowledge whatever of any lien upon said real estate; that the same was purchased in good faith, without intent to defraud any one’ J^er ^1*8, on t^a,'lua’ry 29,1859, the transcripts, so filed and recorded, together with the order book in which they were recorded, were destroyed by fire; and afterward, on July 25, 1858, the justice issued an execution on each of said judgments, which were duly returned, '■'■nulla bona.” On March 26, 1859, the justice, a second time, made out and certified transcripts of the same judgments, and delivered them to the said Sheldon, Hoyt and Van Graasbecle, who filed them in the clerk’s office of said Court, and the same were by the clerk duly recorded, &c. The proper affidavit having been made, an execution was duly issued by the clerk, upon each judgment, so on file and recorded as aforesaid; which executions were placed in the hands of David S. Se.mmnns, the then sheriff of Hob1e county, and by virtue of which the above described real estate has been levied on and advertised for sale, &c. Now, the inquiry arises whether, upon these facts, the ruling of the Common Pleas can be sustained? ■

It must be conceded, that the judgments upon the filing and recording of the first transcripts became liens upon the lands described in the complaint; but these transcripts and the records thereof were destroyed, and, of course, no executions could issue upon them until they were reinstated in some mode known to the law. Have they been so reinstated? It is enacted, that any circuit or inferior court of record,' held in any county, the records whereof have been destroyed, in whole or in part, may cause to be reinstated any judgment or decree, before that time made or rendered in said Court. 2 R. S., § 20, p. 510. The terms “made or rendered in said Court,” as used in the statute, if literally construed, would not embrace the judgment of a justice, filed and recorded in the Circuit or Common Pleas Court; but such judgment, when so filed and recorded, is, evidently, within the equity of the statute. Smith’s Comm. 819, et seq. This construction being correct, and we think it is, the judgments in this case, their records having been destroyed, can [167]*167not be held liens until they are reinstated in the mode pointed out by the statute. And it may be assumed with a degree of plausibility, that the filing of the second transcripts, without such reinstatement, was, of itself, a waiver of the lien created by the first. At all events, the judgments as set forth in the last transcripts, are not liens upon the land, because it had been sold and conveyed to the plaintiif at the time they were filed and recorded. And the result is, the levy of the executions was inoperative and void.

R. Parrett, for the appellants.

Per Curiam. — The judgment is affirmed, with costs.

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Davison, J.

This' was an. action by the appellee, who was the plaintiff, to enjoin the sale, on execution, of certain real estate, described as lots 17 and 18, in Legonier, Noble county. The appellants were the defendants below. Defendants demurred to the complaint; but their demurrer was overruled, and thereupon they filed their answer, to which the plaintiff demurred. This demurrer was sustained, and final judgment rendered for the plaintiff, enjoining the sale, &c.

The facts of this case, as they are set forth in the pleadings, are substantially these: Sheldon, Hoyt and Van GraasbeeJc, on December 28, 1857, recovered two judgments against Johnson Ourl and James Smalley, each for $200, before a justice of the peace of Noble county; and on the 20th of that month, filed transcripts thereof in the clerk’s office of the Noble Common Pleas, which were duly certified by the' justice, and by the clerk of said' Court duly entered upon the order book. On Jamtary 5, Í 858, the plaintiff, for the consideration of $300, then paid to Johnson Ourl, purchased of him the real estate in question, and received from him a deed in fee simple, pursuant to the purchase; and the [166]*166plaintiff avers that when he received the deed, he had no knowledge whatever of any lien upon said real estate; that the same was purchased in good faith, without intent to defraud any one’ J^er ^1*8, on t^a,'lua’ry 29,1859, the transcripts, so filed and recorded, together with the order book in which they were recorded, were destroyed by fire; and afterward, on July 25, 1858, the justice issued an execution on each of said judgments, which were duly returned, '■'■nulla bona.” On March 26, 1859, the justice, a second time, made out and certified transcripts of the same judgments, and delivered them to the said Sheldon, Hoyt and Van Graasbecle, who filed them in the clerk’s office of said Court, and the same were by the clerk duly recorded, &c. The proper affidavit having been made, an execution was duly issued by the clerk, upon each judgment, so on file and recorded as aforesaid; which executions were placed in the hands of David S. Se.mmnns, the then sheriff of Hob1e county, and by virtue of which the above described real estate has been levied on and advertised for sale, &c. Now, the inquiry arises whether, upon these facts, the ruling of the Common Pleas can be sustained? ■

It must be conceded, that the judgments upon the filing and recording of the first transcripts became liens upon the lands described in the complaint; but these transcripts and the records thereof were destroyed, and, of course, no executions could issue upon them until they were reinstated in some mode known to the law. Have they been so reinstated? It is enacted, that any circuit or inferior court of record,' held in any county, the records whereof have been destroyed, in whole or in part, may cause to be reinstated any judgment or decree, before that time made or rendered in said Court. 2 R. S., § 20, p. 510. The terms “made or rendered in said Court,” as used in the statute, if literally construed, would not embrace the judgment of a justice, filed and recorded in the Circuit or Common Pleas Court; but such judgment, when so filed and recorded, is, evidently, within the equity of the statute. Smith’s Comm. 819, et seq. This construction being correct, and we think it is, the judgments in this case, their records having been destroyed, can [167]*167not be held liens until they are reinstated in the mode pointed out by the statute. And it may be assumed with a degree of plausibility, that the filing of the second transcripts, without such reinstatement, was, of itself, a waiver of the lien created by the first. At all events, the judgments as set forth in the last transcripts, are not liens upon the land, because it had been sold and conveyed to the plaintiif at the time they were filed and recorded. And the result is, the levy of the executions was inoperative and void.

R. Parrett, for the appellants.

Per Curiam. — The judgment is affirmed, with costs.

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17 Ind. 165, 1861 Ind. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheldon-v-arnold-ind-1861.

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