West v. Townsend

Peeicins, J. This was a suit to obtain execution against real estate of a deceased debtor, upon a judgment rendered in 1847. Answers were put in, replies filed, and the issues were tried by the Court, who found for the plaintiff, and ordered execution for the sale of the land. The facts of the case are these: In the lifetime of Alexander Wilson, judgments were obtained against him in the following order, in the Miami Circuit Court, viz.: One in favor of Calvin B. House for 640 dollars, February 23, 1846; one in favor of Bower and Me Vane, for 367 dollars, 95 cents, on the same day; one in favor of Bancroft, for 112 dollars, 20 cents, August 27, 1846; one in favor of Thompson M. Goon, for 432 dollars, 60 cents, August 24, 1846; and that of the plaintiffs in [435] this suit, for 681 dollars, 50 cents, on the 12th of March, 1847. In 1849, Alexander Wilson died, seized in fee simple of one hundred and sixty acres of land in Miami county, Indiana. John M. Wilson was appointed administrator upon his estate. In due course of administration, it was found that the personal estate was insufficient for the payment of the debts of the deceased, and application was made to the proper Court for the sale of the real estate above mentioned, it being all of which Alexander Wilson died seized. The sale was ordered, and took place in 1851, Amos West becoming the purchaser. The petition for the sale of the real estate set forth the judgments above described, as constituting the main indebtedness for the discharge of which it was necessary to sell said real estate; no proceedings having been instituted on any of them to subject it to sale. The land brought, at the sale, 1,350 dollars, being more than its appraised value, and all, if not more than it was worth—the consideration was all paid by West, the purchaser, and was applied upon the judgments upon the land older than those of these plaintiffs. On the payment of the purchase-money, West received a deed, approved by the Court, under which he has since occupied and substantially improved the land. The S. S. 1843, under which the sale of the real estate in this case took place, authorized the Probate Court to order the sale, subject to existing liens, of real estate for the payment of debts (p. 531, § 245); and they authorized it to order the sale for the discharge of the liens (p. 532, § 251). And it might, in the order, combine both objects. It did in the case at bar. And where real estate is ordered to be sold to discharge the liens of judgments upon it, the title of the purchaser relates back, as in case of sheriff’s sales, to the date of the oldest judgment upon which the sale takes place. Such being the case, the title of West to the land purchased by him, is not subject to sale again upon the judgments of these plaintiffs. It is not subject to the lien of their judgment. N. 0. Ross and R. P. Effinger, for the appellants. J- A. Beal, for the appellees. Per Curiam. The judgment is reversed with costs. Cause remanded to be dismissed.