Shirk v. Wilson

Davison, J. Shirk brought this action against Wilson to recover certain real property described thus: twenty-four — 130 — fe’et off the south end of lot No. 36, in the town of Peru, in Miami county. The Court tried the issues, and found for the defendant, and having refused a new trial, rendered judgment, &c. The case is this: On the first of January, 1855, three several judgments, each against Philo Reed, Alvin Thayer, and William H. Constant, were rendered in the Miami Court of Common Pleas, viz.: one judgment in favor of John R. Neff for 380 dollars, one in favor of Isaac Walker for 706 dollars, and one in favor of John H. Constant for 776 dollars. These judgments were collectable without relief, &c., and upon them executions were issued and levied on the premises in contest, which were, on the 29th of August, 1855, sold by the sheriff to the plaintiff, who received a deed pursuant to the sale. Under this deed he claims. title. In October, 1854, and prior to the rendition of the judgments to which we have referred, a writ of attachment, at the suit of White & Co., was duly issued from the Miami Circuit Court against the said Reed, Thayer, and Constant, wherein it is alleged that they, the defendants, are indebted to White & Co. 609 dollars. This writ was placed in the hands of the sheriff, October 16, 1854. After this, in the same month, another writ of attachment, at the suit of Cochran & Co., was issued from said Court against the same defendants, alleging therein that they are indebted to Cochran & Co. 523 dollars. The last-named writ went into the sheriff’s hands November 21, 1854. Both writs were, on the 30th of December, in that year, levied upon the premises in controversy, with other real estate amounting, by appraisement, to 7,100 dollars. Also, on the 3d of January, 1855, they were levied upon personal property which was appraised at 1,443 dollars; and on the 10th of March in the same year, upon real estate appraised at 7,000 dollars. The premises in suit were valued by appraisement at 2,500 dollars. On the 16th of February, 1855, after the rendition of the above judgments, others, creditors of the attachment-defendants, with a view of becoming parties to the attachment suits, filed their respec — 131 — tive claims against the defendants in said Court, in the mode prescribed by the statute. At the March term, 1855, judgments were rendered in the original attachment suits, and, also, upon the claims filed under them as follows: Judgment in favor of White & Co., for.........$422 62 Judgment in favor of Cochran & Co., for....... 354 35 Judgment in favor of Hope, Gradon & Co., for.. 1,354 09 Judgment in favor of Arbuckle and Moore, for.. 173 00 Judgment in favor of Henry Cunningham, for... 434 00 Judgment in favor of Norton and Jewet, for..... 154 34 Judgment in favor of Atwood, Bwns, and Farmer, for................................... 307 00 The judgment in favor of White & Co., as also the one in favor of Cochran & Co., do not order the property levied on to be sold without appraisement. The other judgments contain such order. A jury impanneled in one of the attachment suits found that the defendants, at the time the several writs of attachment were issued, had sold and transferred the same property with the fraudulent intent of hindering and delaying their creditors. Executions were duly issued on all the judgments in the attachment suits, and upon them the property in dispute was, on the 16th of February, 1856, sold by the sheriff, without appraisement, to the defendant for 500 dollars, that, sum being less than two-thirds its appraised value. Pursuant to this sale, the defendant received a sheriff’s deed, under which he claims title. The judgments upon which the plaintiff rests his title were rendered January 1, 1855, and were, at their date,, liens on the property sold, and the sale to him under them was regular and legal.' He was, therefore, entitled to recover in this action, unless the defendant has shown a valid sale of the premises to himself, in virtue of a prior lien. Has he done so? As we have seen, the writs of attachment were placed in the sheriff’s hands November 25,1854, and it must be conceded that they, at that date^ became liens on the property. 2 R. S. p. 66, § 165. But the claims of other creditors, under the original attachment suits, were' not filed — 132 — until February, 1855. Hence, it is insisted that these claims could be deemed liens only from the time they were filed, and that, as to them, the judgments rendered on the first of January are prior liens. The statute says, “ Any creditor of the attachment-defendant, upon filing his affidavit, &c., may, at any time before the final adjudication of the suit, become a party to the action, file his complaint, and prove his demand against the defendant.” And that “the money realized from the. attachment shall, under the direction of the Court, after paying all costs, &c., be paid to the several creditors,. in proportion to the amount of their several claims as adjusted.” Id., pp. 70, 71, §§ 186, 192. This enactment evidently places all the creditors before the Court, at the final adjudication of the attachment suit, whose claims have been adjusted, upon an equal footing; and, further, it makes all of them parties to the original proceeding. This could not be, unless the original attaching process creates a lien upon the property attached, not only for the amount of the debt for which it was issued, but also for all valid demands that may be thereafter filed under such process. We have been referred to Zeigenhager v. Doe, 1 Ind. R. 296; but that decision was made in reference to the attachment law of 1843, and that law did not authorize a creditor who had filed his demand subsequently to the commencement of the attachment suit, to become a party to the action. R. S. 1843, p. 768, § 25. Moreover, the Court, in the case cited, expressly withheld an opinion in regard to the question, “whether the lien of subsequent claims relates back to the levying of the attachment.” As the attaching process, in this case, was in the hands of the sheriff before the date of the judgments relied on by the plaintiff, it seems to us that these judgments cannot be regarded liens prior to that of any creditor whose claim was adjusted in the attachment suit. The appellant, however, assumes another ground. He says that the sale to the appellee—the sheriff having sold the property for less than two-thirds its appraised value— was a nullity. While on the other hand, it is contended — 133 — that the sheriff had the right to sell without regard to the appraisement, for the reason that the jury had found that the defendants, at the time the writs of attachment issued, had sold and transferred the property with intent to hinder and delay their creditors. It is enacted that property thus transferred shall be sold without .appraisement. But it is also enacted that “when a judgment is to be executed without any relief from appraisement laws, it shall be so ordered in the judgment.” 2 R. S. pp. 123, 138. §§ 381, 456. It seems to follow that the verdict of a jury alone, is not sufficient to establish such fraudulent intent. Indeed, a verdict will not, generally speaking, be held effective for any purpose, unless followed by an adjudication of the Court. In Doe v. Craft, 2 Ind. R. 359, it was held that a sheriff’s sale made without appraisement, where the judgment did not so direct, was void. The verdict, as it stands in the record, is not operative for any purpose. But in the cáse before us, there were seven executions. Two of them were issued upon judgments in which there was no order directing a sale without appraisement, and which were in favor of the original attaching plaintiffs, and founded on claims which did not waive the appraisement laws. The property was sold on all the executions, for less than two-thirds the appraised value. Can this sale be sustained ? In Harrison v. Stipp, 8 Blackf. 455, it was held that “ Where a sheriff has in his hands several executions (the laws as to a sale under them being different), and the real estate levied on is divisible, he should commence with the execution first to be satisfied, and sell enough of the property, under the law governing such sale, to satisfy that execution; and that he should afterwards sell under the other executions, in their order, according to the same rule, until all are satisfied, or the property exhausted. But if the property is not susceptible of division, the same should be sold under the execution first to be satisfied.” This decision is cited in argument, but it is not an authority in point, because, in the case at bar, the judgments in attachment have no priority to each other, and out of the proceeds of the sale of the property attached, they are — 134 — to be paid in the proportion of their several amounts; and the result seems to be, that the sheriff, in this instance, was bound to sell on all the executions at the same time; otherwise the attachment law, under which the proceedings were instituted, could not be executed in accordance with the intent of the legislature. He might, it is true, have conducted the sale in reference to the appraisement laws; still, it must be conceded. that the plaintiffs, whose judgments contained the order directing a sale without appraisement, had rights proper to be subserved; and it seems to us that a sale consistent with those rights would not, in view of the case made by the record, conflict with any prescribed duty of the sheriff, and ought to be sustained. H. J. Shirk, N. O. Ross, and R. P. Effinger, for the appellant. J. Caven, for the appellee. There is, however, a fatal error in the record. The plaintiff sued for, and, in support of his action, showed a prima facie title to, twenty-four feet off the south end of lot 36, in the town of Peru; while the defendant, in his defense, proved title to nineteen feet only off the south end' of the same lot. The plaintiff was, therefore, under the evidence, entitled to recover five feet of the premises in contest. Hence, the verdict is not sustained by the evidence. It should have been in his favor for that portion of the south end of lot 36 not covered by the defendant’s title. For this error, the judgment must be reversed. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.