Plaster v. Burger

Perkins, J. Bill in chancery to set aside a deed, enjoin a suit at law, &c. Temporary injunction granted. Answers and depositions filed. Motion to dissolve overruled, and an appeal from that decision to this Court. It appears by the record that divers judgments were rendered in the Hendricks Circuit Court against Henry Bwrger, which were liens upon the real estate owned by Bwrger and on which he resided; that an execution was taken out upon the oldest of said judgments, and the real estate offered for sale; that Matlock purchased it for 200 dollars in January, 1845; that he suffered Burger to remain in undisturbed possession till May, 1851, when said Matlock sold said real estate to John Plaster for 500 dollars’; that Plaster has commenced an ejectment to recover the possession; that said lot, at the times Matlock purchased and sold it, was worth 1,000 dollars; that there was a good deal of unsettled business between Matlock and Bwrger, and that the latter was greatly involved, having little, probably, but the real estate in question, with which to pay his debts. Bwrger alleges that the purchase by Matlock at sheriff’s sale was for the benefit of him {Burger), and that the subsequent sale to Plaster was fraudulent. This Matlock and Plaster deny, insisting that Matlock fairly, and without [233] condition, purchased at sheriff’s sale, and as fáirly sold to Plaster. The naked facts of the case strongly indicate something wrong. Land worth 1,000 dollars is purchased for 200 dollars, is suffered to remain in the possession of the then owner, as if no change of title had taken place, for five years, and is then sold, while still worth 1,000 dollars, for 500 dollars, without removing the occupant. The circumstances surrounding the transaction still more strongly indicate fraud. Jeremiah Depew says he had a judgment against Burger for 260 dollar’s, which he intended to secure by bidding on the property; that he attended the sheriff’s sale, and when he arrived at the place, he found Burger and Matlock in a private room, engaged in conversation; that he stated to them that he had come to the sale and intended to buy the property unless his claim was arranged; that Burger replied that he and Matlock were then attempting to arrange the matter, and that it would be done; that Mat-lock made no objection — said nothing; that he, Depew, accordingly, did not bid at the sale; and subsequently called on Matlock to pay his judgment according to the understanding, but Matlock, not denying the agreement, put him off, saying he had not got quite through with his arrangements with Burger, and promising to pay the judgment as soon as he should do so. Edmund Clark says he attended the sale with a view of bidding, should it become necessary, to secure himself in a matter wherein he was security for Burger, and that he so informed Burger. “Burger then said, ‘you want to ruin me.’ Witness replied that all he wanted was to secure himself on account of his liability as security for him. Witness also told Burger that if he, witness, should purchase the property, he, Burger, should have the same back by paying the purchase money and the amounts for which witness was liable. Burger replied that he would not, or that it would not suit; that Matlock was going to bid off the property, as his impression was, for Burger. Witness then told Burger that if Matlock would make him, witness, safe, [234] witness would, not bid; that he did not want the property. Bwger then went to Matlock, about twenty-five or thirty feet distant, and, after a short conversation, which witness did not hear, Matlock turned to witness and said ‘ I will do it,’ in rather an angry manner. Immediately afterwards the sale commenced, and Burger and Matlock came up to witness, and Matlock said to witness, ‘you may’ or ‘you must bid till it comes up to the amount of 200 dollars, and then stop, so as to prevent people from thinking there is an arrangement.’ Witness bid up to 195 dollars, and said property was struck off to Matlock at 200 dollars.” Joseph S. Miller says, in 1850 said Matlock called on Bwger, in presence of witness, and told him he had come to make some arrangement about said property, and asked if he was going to redeem it, as he had the preference over anybody else; and that Bwger, in said conversation, claimed that he had paid the redemption money already. It is evident, from the record, that bidding was prevented at the sheriff’s sale, by the promises of Matlock to the execution-defendant and his creditors, that those creditors should be paid and Bwger permitted to redeem, whereby said execution-defendant’s property was sacrificed. And we think the circumstances under which Plaster purchased, sufficient to have put him on inquiry and to charge him with notice. The question then arises, is Bwger entitled to any redress ? The cause not having been heard finally, and a decree rendered, we have no question before us as to the particular shape in which redress shall be given. The only question before us is, shall any be accorded, and should the suit at law be restrained till the final hearing of this cause? On these points we have no doubt. Bwger and his creditors must, by some decree, have the benefit of his property of which they have been defrauded through Mat-lock’s promises, or they must have a fulfilment of those promises; and the ejectment should be stayed till the final redress is decreed. See Bunts v. Cole, 7 Blackf. 265, and Benton v. Shreeve, 4 Ind. R. 66. J. S. Harvey and J. M. Gregg, for the appellants. A. A. Hammond and C. C. Nave, for the appellee. Per Curiam. — The decree is affirmed with costs.