Whittelsey v. Beall

5 Blackf. 143, 1839 Ind. LEXIS 54

• Court: Indiana Supreme Court
• Decided: May 28, 1839
• Status: Published

Opinion

Sullivan, J.

Bill to foreclose a mortgage. The bill states that Whittelsey'was indebted to Beall in the sum of 1,605 dollars, and to secure the payment, Whittelsey and wife executed to the complainant a mortgage on a tract of land described in the bill as follows, viz. K That certain tract or parcel of land containing 300 acres, lying and being in the county of Knox and state of Indiana, about four miles north-east of Vincennes and adjoining lands of David McCord and others, being the same tract of land that was conveyed to said Isaac N. Whittelsey by Benjamin Tomlinson and John Ross, on the 25th day of May, 1837.”

The defendants demurred to the bill, and the demurrer was overruled by the Court. After other proceedings not necessary now to be noticed, the bill was taken as confessed, and the Court decreed the foreclosure of the equity of redemption, the payment of the money due by a certain day named, and in default of payment that the sheriff sell the said mortgaged premises to the highest bidder, at public vendue, as other lands are sold on execution, and that he make a deed of conveyance to the purchaser, &c. .

S. Judah, for the plaintiffs. R. Crawford, for the defendant.

The objection urged to the bill is, that the description of jan¿ jg †00 jn¿efinite to authorise the Court to make a decree ordering the sale of it.

We think the objection well taken. We do not mean to . say that the description is so vague as to make the deed inoperative. It may be sufficient to convey the land. That point however is not before us. But we think the bill is defective in not so describing the land, that the officer of the Court may know on what premises to enter to execute the order of the Court. It was formerly considered an established principle, that the description of lands in an action of ejectment must be so certain as to enable the sheriff exactly to know, without any information from the lessor of the plaintiff, of what to deliver possession. That maxim has been abolished, and' it is now the practice for the sheriff to deliver possession of the premises recovered in that action, according to the directions of the claimant, who therein act's at his own peril. Adams on Eject. 23. But in a sale of land on execution, the case is different. The sheriff, at his own peril, must enter upon and sell the right- land.

The bill is defective in not describing by metes and bounds, by name, or otherwise, the premises to be sold; and the decree must for that reason be reversed.

Per Curiam.

The decree is reversed with costs. Cause remanded with leave to amend the bill.