State ex rel. Braden v. Krug

Bicknell, C. C. This was an action against a sheriff and his sureties, on the sheriff’s official bond. The breach alleged was, that, on March 4th, 1879, the sheriff held an execution, issued from the Montgomery Circuit Court, in favor of James H. Dunham and others against William B. Patch, and on April 24th, 1879, levied the same, by color of his office, upon certain property in said c.ounty, of the value of $5,000, and took the property into his possession, the same’being then and there “ the- property of the said Alba H. Braden, as assignee for the benefit of the creditors of William B. Patch,” having been duly conveyed to said Braden “ by an indenture of assignment made by said William B. Patch, by virtue of the laws of the State of Indiana, which indenture was, on the--day of-, 1879, duly recorded in the Recorder’s office of Montgomery county, Ind., as deeds are recorded.” That, by such wrongful taking, said Braden was prevented from selling said property, to his damage $1,000, and was otherwise damaged in the sum of $5,000. A demurrer to the complaint for insufficiency of facts was overruled. The defendants answered in seven paragraphs, of which the fifth was the general denial. Demurrers to the first, fourth [60] and seventh of these defences were overruled; demurrers to the second, third and sixth defences were sustained. The plaintiff replied to the first, fourth and seventh defences, in two paragraphs, to wit: First. In denial. Second. A special reply, which was struck out. The issues were tried by the court, who found for the defendants. The plaintiff’s motion for a new trial was overruled, and judgment was rendered upon the finding. The plaintiff appealed, but has assigned no error upon the overruling of the motion for a new trial. The only errors assigned are, overruling the demurrers tó the first, fourth and seventh defences, and striking out the second paragraph of the reply. No question is presented in reference to such striking out, because the ruling of the court thereupon is not shown by any bill of exceptions. Thomas v. Hamilton, 71 Ind. 277. The reply, having been struck out of the record, can be-brought back only by bill of exceptions, or by order of the-court. The demurrers to the defences search the record and test the sufficiency of the complaint. Ætna Ins. Co., etc., v. Baker, 71 Ind. 102; Gould v. Steyer, 75 Ind. 50. In Kellogg v. Tout, 65 Ind. 146, it was held that, where the-complaint fails to show a cause of action, and there is a judgment against the plaintiffs, they can not complain of the judgment, although there may be error in the rulings upon their demurrers to the answers. Therefore, if the complaint be insufficient,, the judgment below ought to be affirmed. The statute of voluntary assignments for the benefit of creditors, 1 R. S. 1876, p. 142, sec. 2, provides that such assignments “ shall be by indenture duly signed and acknowledged * and shall within ten days after the execution thereof, be filed with the recorder of the county in which the assignor resides, whose duty it shall be to record the same as deeds are recorded. The indenture of assignment shall contain a full description of all real estate thus assigned, and be accompanied by a schedule containing a particular enumeration and [61] description of all the personal property assigned. * * * Yo assignment under this act shall convey to the assignee any interest in the property so assigned until such assignment is recorded as provided for in this section.” Upon these statutory provisions, .it' has been held that no title to the property assigned passes to the assignee, until the assignment is recorded. New v. Reissner, 56 Ind. 118; Forkner v. Shafer, 56 Ind. 120; Switzer v. Miller, 58 Ind. 561. It has also been held that a complaint by a party claiming as such assignee, which does not allege that the assignment has been duly recorded, and does not contain a copy thereof, is insufficient on demurrer. Foster v. Brown, 65 Ind. 234; Ross v. Boswell, 60 Ind. 235. And such an assignment, made by an execution defendant, does not divest the lien of the execution. Griffin v. Wallace, 66 Ind. 410; Marsh v. Vawter, 71 Ind. 22. But in an action by such an assignee, to recover from a wrong-doer the property assigned or damages for taking it, the complaint need not state the particulars of the assignee’s title. It may allege generally that the plaintiff was the owner of the property and entitled to the possession of it. Krug v. McGilliard, 76 Ind. 28. Yet if the complaint, in such case, undertaking to show title as assignee, sho'ws affirmatively a want of title, it will be bad upon demurrer. The complaint under consideration is insufficient for several reasons: It gives no description of the property. It does not state whether the property was real or personal. It sets out and relies upon a written instrument as the foundation of the claim, and no copy of the alleged writing is annexed to or filed with the complaint. It does not give the date of the alleged writing, nor the time of its execution, and it does not show that the assignment was executed before the issuing of the execution. It does not show when the* assignment was recorded, nor that it was recorded before the levy of the execution, or before the issuing of the execution; the complaint alleges that the [62] execution was in thesheriff’s hands on the 9th of March,1879, and was levied on the 24th of April, 1879, and that the assignment was recorded on the — day of -, 1879. It does not appear that the assignment was recorded before the execution was issued. The complaint does not state that the county in which the assignment was recorded was the county of the assignor’s residence. The complaint, under the authorities above cited, was clearly insufficient, and therefore the judgment below in favor of the appellee ought to be affirmed. Per Curiam. — It is therefore ordered, on the foregoing opinion, that the judgment of the court below be and it is hereby in all things affirmed, at the costs of the appellant’s relator.