Adler v. Sewell

Ray, J. The appellee objects to the consideration of the paper contained in the record, and styled a bill of exceptions, on the ground that the original transcript did not contain any evidence that the same was signed within the time allowed by the court. The return, however, to a certiorari, shows that the court, upon notice to the appellee, and on motion, ordered its record to be so amended as to state this fact. This amendment, it is claimed, is erroneous. But still it has been made and is now part of the record, and as the appellee has ■ not presented this action of the [600] court for review, by an assignment of cross-error, we cannot consider the objection. The evidence offered'by the appellants to prove the assignment of the title bond to David Adler, and notice to Yandes, before the beginning of the action by Yandes against Levi Adler and Alshider, was, we think, improperly rejected. The evidence showed that David Adler was not a party to the decree. The fact that he became replevin bail after the entry of the decree did not make his equitable title subject to sale under the decree, but only renders his property subject to execution so liable. 2 Gr. & II., § 427, p. 235. The proceedings of the sheriff in the execution of the decree, in subjecting the property first to sale, as directed, to satisfy the judgment, was simply carrying out so much of the decree as went against the land, in rem. It could only operate against the interest of those who were parties to the judgment, as a judgment in rem. In the execution of that part of the decree, the sheriff" could only sell the interest of those persons in the land who were parties to the decree when it was rendered. So far the judgment was personal, and in'the execution of that part of the judgment, the property of the replevin bail, like that of his principal, was liable, so far as such property could be reached by execution. The evidence offered, therefore, tended to establish an equitable title in David Adler, which would defeat the action, and it should have been admitted. The instructions asked by the appellant in regard to the duty of the sheriff in offering the rents and profits of the entire lands levied upon, where they consisted of several lots, or subdivisions, were correctly refused. The statute provides that the interest of the judgment debtor in any real estate shall not be sold until the rents and profits thereof for a term not exceeding seven years shall first have been offered for sale. This simply requires the offer of the rents and profits of each several lot before offering the fee of that particular lot for sale. Any other construction might often deprive the execution defendant of the use [601] and enjoyment of all Ms property for a term of years, when the sale of a small portion of it would discharge the debt. So of the demand upon the court to instruct the jury that the finding must be for all of the plaintiffs, or for the defendants. The complaint discloses that Sewell held the legal title, in his own right, and as trustee of an express trust in favor of his co-plaintiffs. He was, therefore, entitled to recover the entire property from the defendants, if his claim was well founded. He was not required to make his cestuis que trust parties, and the fact that they all united in the allegation that he was entitled to recover was a matter of little importance to the defendants. If he recovered, by virtue of Ms title in fee, it was a recovery of all the property. "When that result was reached, all interest of the defendants in the question was ended in that court. The court committed no error in refusing the instructions asked. B. P. Davidson and B. P. DeHart, for appellants. W. H. Mallory, for appellees. Eor'the error in rejecting the evidence offered, the judgment is reversed, with costs, and the cause remanded for further procedings, in accordance with this opinion. Gregory, C. J., having been of counsel, was absent.