Gregory v. Purdue

Elliott, J. The questions urged in this court, upon which a reversal of the judgment is claimed, arise upon the action of the circuit court in overruling the motion for a new trial. The reasons filed for a new trial were, 1st. That the verdict of the jury was not sustained by sufficient evidence. 2d. That the court eri’ed in its instructions to the jury, to which the appellant excepted, and also in refusing to give the instructions asked by the appellant. The evidence was sufficient to justify the verdict, under the instructions of the court. The decision of the case must, therefore, depend upon the question whether the jury were properly instructed as to the law of the ease. Gregory had become the owner of four undivided fifths of the land, and Pui’due of the remaining fifth under his purchase from the widow; but, as the latter had united in the moi’tgage upon which the deci’ee was rendered, the whole of the lands were alike subject to the decree; and the fact that partition had been made between Gregory and Pui’due, did not change or affect the liability of the whole for the payment of the decree. The lands were appraised in parcels, at the i’equest of Gregory, according to a plat and schedule furnished by him. When the sheriff was about to commence the sale of the fee simple, Gregory-claimed to direct the order of sale, and demanded of the sheriff' that he should fii’st expose to sale lot number thirty-five on the plat, being a part of the land — 461 — owned, by Gregory, who bid therefor double its appraised value; but the sheriff refused to receive the bid or offer the lands for sale, as directed, and first offered lot number one, being also a part of the lands held by Gregory, but refused to receive a bid therefor, unless it was equal to the whole amount of the decree. The appellant, in the third instruction, which was refused, requested the court to instruct the jury, that, as the owner of the land purchased of the administrator of High, the mortgagor, it was his privilege to direct the order of sale, and if he did so in a prudent manner, not prejudicial to the execution-plaintiff in the recovery of his debt, it was the duty of the sheriff’ to sell accordingly, and if he failed to do so at the instance of the plaintiff and the appellant was thereby prejudiced, the sale was void. ¥e think the instruction should have been given. In the sale of that part of the land owned by the appellant, the execution-plaintiff had no other interest than that it should sell for the best price, or for enough to pay his debt, and in that respect there was no conflict in' interest between the execution-plaintiff and the appellant. Hut the latter had a further interest. The appraisement of the land in lots exceeded the amount of the debt, and if they could be made to sell for their appraised value, the sale of the whole would not be necessary; and if, as the appellant contends, the interest of the widow, held by Purdue, is liable for one-fifth of the debt, the interest of the appellant would be further increased. The statute provides, that it shall be the duty of the sheriff to levy an execution first upon that part of the property designated by the execution-defendant. Here the appellant, as the owner of the land, occupied the relation of the judgment-defendant ; and although the decree in this ease designated the property to be levied on, it was clearly the right of the appellant to direct the order of sale of the land held by him, provided he did so in such a manner as not to prejudice the execution-plaintiff in the collection of his debt. — 462 — The second instruction asked by Gregory asserts the proposition, that if the lands consisted of distinct lots, tracts, or parcels, capable of being used as separate tenements, it was the duty of the sheriff' to thus offer and sell them. This was refused;. and the court instructed the jury thus: “ The statute requires that no more land shall-be sold than is necessary to satisfy the execution, unless the same is not susceptible of division; and a duty is thus imposed on the sheriff which he may not omit. I do not understand by this requirement that the land, if susceptible of division, and consisting of separate parcels, shall be sold ■eaeh separately, unless each separate piece, or tract, will sell for an amount sufficient to satisfy the execution on which the same may be offered; but the sheriff shall test the fact as to whether a less quantity than the whole will sell for enough to satisfy the execution, by offering in parcels until he receives a bid equal to the amount of the debt to be made, and then it would be his duty to strike off'the same; in other words, the sheriff must sell just so much and no more of the real estate as will be sufficient to pay the judgment debt.” The first instruction given by the court was to the same effect. The duty of the sheriff' in selling real estate on execution is regulated by statute. Section 466 of the code (2 G. & H. 249) is as follows: “ Real estate taken by virtue of any execution shall be sold at public aution at the door of the court house of the county in which the same is situated; and if the estate shall consist of several lots, tracts, and parcels, each shall be offered separately; and no more of any real estate shall be offered for sale than shall be necessary to satisfy the execution, unless the same is not susceptible of division.” The last two clauses of this section relate to two distinct classes of cases. First. If the estate consists of several lots, tracts, and parcels, each is required to be offered separately. Second. "Where the estate consists of a single lot, tract, — 463 — or parcel, but its value greatly exceeds the amount of the debt, no more of it shall be offered for sale than shall be necessary to satisfy the execution, if it is susceptible of division. The question raised by the instructions now under consideration relates more especially to the first class. If the estate consists of several lots, tracts, or parcels, the duty of the sheriff is imperative; he must offer each separately; and if a proper or reasonable bid is made, which in this case would be two-thirds of its appraised value, it is his duty to sell, although the amount bid is not sufficient to satisfy the execution; and the fact that the sale of all the tracts may be necessary to satisfy the execution, cannot affect the case or justify the sheriff in selling in solido. The only difficulty that can arise under that clause is in determining whether the estate does consist of several lots, tracts, or parcels, within the meaning of the statute, under the facts in a given case. If the tracts are not contiguous, they are clearly several under the statute, and must be sold separately; and so, if they are owned by different parties, though contiguous, and all liable to the execution, yet .they-are several, and cannot be sold together. The lands of this'State were divided into tracts by the government surveys, and were sold by the government in such subdivisions. These subdivisions, in many instances, may still denote the several tracts, and in such cases may properly be regarded by the sheriff' in making sales on execution. But it frequently happens that two or more of such tracts, lying contiguous to each other and owned by the same person may.be so united-by improvement and use as to render their union -necessary’in constituting a single farm or homestead; and:in such cases they should be regarded as constituting but a single tract or parcel. The mere fact, however, that the -title of a large number of contiguous tracts is in the same person, would not, of itself, constitute them one tract under the law. 'Whether a given body of land is to 'be considered as constituting a single tract or par — 464 — cel, or as several, is, in a great measure, a question of fact: and it is difficult, if not impossible, to prescribe any general rule by which such cases should be governed. In this case, the lands held by Gregory constituted one large body, which, with those assigned to Purdue on partition, had, for years before the partition was made, been used as a stock farm; but that fact alone did not make them a single tract or parcel under the statute; and whether there were other facts in the case, sufficient to justify the conclusion that they should be regarded as constituting but one tract or parcel, was a proper question for the jury, under proper instructions from the court; but that question was rendered immaterial, and was virtually withdrawn from the jury, by the instruction of the court, that, although the lands consisted, of several tracts or parcels, it was not the duty of'the sheriff to sell them separately, unless the amount bid was sufficient to j)ay the whole amount due on the decree. But it is claimed that the sheriff did offer' the lands for sale in parcels, as required by the statute, and the ease of Reed v. Diven, 7 Ind. 189, is referred to as sustaining the sale. "We do not so understand that case. There, a body of lands, containing six hundred and fifteen acres, was levied on and sold under an execution issued on a judgment for one hundred and seventy-seven dollars, to be collected without appraisement; but, except one tract of eighty acres and another of forty acres, the lands were incumbered by a prior mortgage of five thousand four hundred dollars, and the eighty acre tract not covered by that mortgage was subject to another mortgage of three hundred dollars, and the whole was also incumbered by two prior judgments, subject to the appraisement laws, amounting to six -hundred and twenty-five dollars, making in all an aggregate of six thousand two hundred and twenty-five dollars. The lands were admitted to be-worth seven thous- and dollars. A complaint was filed to set aside the sale. An answer was filed,in which it was alleged that the lands consti — 465 — tuted but one farm, and were not in separate tracts; and there was no averment, either in the complaint or answer, that the lands were susceptible of division. A demurrer was sustained to the answer in the lower court, and the sale was set aside. On appeal to this court, Davison, J., in delivering the opinion of the "court, affirming the judgment of the court below, after citing the statute, says, “this provision imposes a duty on the sheriff which he may not omit. The property levied on being divisible, he is restricted from offering more of it than may be necessary to • discharge the debt in his hands for collection. It may,. it is true, require the entire tract to satisfy the execution, and when this occurs, the whole may be offered at' once. In the present case there is no direct averment, either in the complaint or answer, that the lands are susceptible of division; still, it is very cleai’, from the manner in- which they are described, that a sale of them in distinct parcels was quite practicable. Indeed, the answer admits that ‘ the premises, and parts thereof/ had, on other executions, been offered for sale. They are plainly marked in, separate- parcels, and conceded to be worth over seven, thousand dollars. Ilenqe it would seem that the sheriff was not authorized to expos'e to sale the whole in one body, until he had offered them in separate quantities. Having done this, and thereby ascertained that the executions could not be satisfied by that mode of sale, he might then have offered the entire tract.” It is evident that the question discussed in that case related to the duty of the sheriff under the last clause of the.section of the statute referred' to. Indeed, it was necessarily so under the state of the pleadings in the case. The answer alleged- that the lands constituted one farm and were not in- separate tracts. This allegation was admitted by the demurrer, and'hence the only ground upon which the decision of the lower, court could', be sustained was, that they were susceptible of division, and, as their value, subject to the prior liens, exceeded, theamount — 466 — of the execution, the sheriff should, therefore, have first offered them in parcels, and thereby ascertained that he was not selling more than was necessary to satisfy the execution. Ho appraisement was required in that case, and the whole of the lands were sold in a body to the execution plaintiffj subject to the prior incumbrances, for fifty-one dollars, which was less than one-third of the amount due on the execution; and yet the sale was set aside because the lands were not first offered in separate parcels. Whilst that case is not directly in point, it contains nothing in conflict with the opinion herein expressed, but, on the contrary, tends strongly to support it. If these lands consisted of several tracts or parcels, as claimed by the instructions asked by the appellant and refused by the court, and were, therefore, required to be sold separately, it would be a total perversion of the statute, to say that the sheriff' was not bound to so sell them unless the tract offered separately would bring the whole amount of the execution. The lands were described in parcels in the order of sale. The sheriff recognized the fact that they were at least susceptible of being divided into parcels, -by having them appraised in separate lots, at the instance of the apjDellant. The appraisement in that form was useless, unless it was intended to sell them in par- ■ cels; but it was a mere mockery to offer one of such par- ■ cels for sale, the appraised value of which did not exceed twelve hundred dollars, but refuse to sell it unless the pur-¡chaser would pay for it over thirty thousand dollars. The law prohibted a sale for less than two-thirds of the .appraised value. The lands owned by Gregory, at that rate, would not pay the entire amount of the execution; and yet the sheriff gave notice that he would not sell any quantity less than the whole, including also those held by Purdue, for less than the whole amount due on the execution, and ¡accordingly added lot after lot until the whole was offered in one body and in that form sold to the appellee. This was clearly illegal. By the partition, the lands were severed, — 467 — and thereafter constituted two several and separate parcels; and whether those assigned to Gregory did or did -not consist of more than one tract or parcel, under the statute, they at least were separate from those assigned to the appellee, and should have been sold accordingly. Z. Baird, G. O. Behm, A. O. Behrn, B. F. Gregory, and J. Harper, for appellant. H. 17. Chase and J. A. Wilstach, for appellee. The law affords no warrant for selling both parcels in solido. The court erred in the instructions given, and also in refusing to give the instructions asked by the appellant. In Catlett v. Gilbert, 23 Ind. 614, many of the cases decided by this court, involving the legality of sheriff’s sales, are cited and reviewed. The court refused to instruct the jury that the lands held by Purdue, as the vendee of the widow, were liable to contribute, ratably, to the payment of the decree under which the sale was made. We do not see how that question is involved in this case. As already stated, the lands were all alike bound for the payment of the decree, and all were sold under it. If the sale had been a valid one, no question of contribution could possibly arise, and, under the facts in the case, the invalidity of the sale did not depend upon the question of contribution. It follows, that the instruction was irrelevant, and for that reason was properly refused. The merits of the question presented by the instruction' are not properly before us, and we do not, therefore, decide it. The judgment is reversed, with costs, and the cause remanded for a new trial. Gregory, J., being related to one of the parties, was absent.