State ex rel. Farnham v. Willlis

33 Ind. 118

• Court: Indiana Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Frazer, J.

A sheriff holding an execution for about five hundred and fifty dollars against the property generally of two persons, levied it, in good faith, on real estate worth over fifteen hundred dollars above a small incumbrance, of one hundred dollars, the title in fee in an undivided half thereof and the equitable title to the other half being in one of the execution-defendants and held in trust for him. This property was designated for levy by the execution-defendants, who had, at the same time, other real estate worth ten thousand dollars, and also a large amount of personal property, subject to the execution, upon which latter the plaintiff had directed the sheriff to levy. There had been an irregular and void sale of this land for taxes. The sheriff failed to sell the land for want of bidders. The question before us is, whether the sheriff and his sureties were liable to suit upon his bond, for failing to levy on the personal property, as directed.

The levy seems to have been ample, and the statute gives the execution-defendant the right to designate the property, whether real or personal, which shall first be taken, if there be no reasonable doubt of the title; and the case before us does not disclose any foundation for such a doubt. 2 G. & H. 241, sec. 441, et seq.

The sale for taxes, obviously void, was not enough to put the title in doubt, nor, indeed, is this pretended. The case is presented here upon the ground, mainly, that the duty of the sheriff, was to allow the plaintiff in the execution to designate the property to be levied upon, inasmuch as the defendants did not do so when first called upon, though they finally did before a levy was made. We do not concur in that proposition.

D. E. Palmer and J. A. Woodhull, for appellant. J. J. Best, and C. A. O. McClellan, for appellees.

Another proposition, to wit, that the sheriff should not have levied upon incumbered real estate, equally'fails to accord with our views.

Other questions are argued, but wo do not feel called upon to express an opinion upon them, for the reason that they cannot, in the state of this record, be available to reverse the judgment. The whole merits of the controversy depend upon the facts specially found by the court.

Affirmed, with costs.