Ehleringer v. Moriarty

"WoodwáRD, J. The respondent demurred to the bill upon several grounds. Eirst for repugnancies, that the bill alleges that James Robinson bid for the land, and became the purchaser and took the certificate, and then avers that he purchased for his son James T. Robinson. It appears that the sheriff’s deed was made to James T. and he conveyed to King, and he to the petitioner, both conveyances being by warranty deed, and apparently for an adequate and valuable consideration. There is no repugnancy in the statement above referred to. It is a familiar doctrine and practice, that the sheriff may make his deed to a different person from the bidder, when the bidder consents to it. It is a matter of bargain between him and such other. If he does not complain, it affords the defendant no ground if the purchase money is correctly applied. But the sheriff should see to it that he [80] has proper authority. In the papers there is, in one or two instances, a slight apparent incongruity produced by the omission of the middle initial of the son’s name, but this is cured by the reference contained in the words “ the said Robinson,” or by the context. Second, the demurrer assigned that the bill contradicts the return, that the bill avers that the sheriff executed to James T. what was intended on a certificate of purchase, when in fact, from other averments and from the return, it appears that no such intention could have existed, nor could any accident or mistake, as stated, have occurred in making the certificate, in the description of the lands. This is not very intelligible. If it means that the paper could not have been intended as a certificate it needs no answer. The conclusion, that there could not have been such a mistake, is a non sequiter from the premises; and besides the return supports the averment of the bill. The third cause for demurrer is for the alleged want of equity, upon several grounds which will be alluded to. If there is no certificate to correct by, there is a return which stands before the certificate and is equal if not superior to it. In such a case we do not conceive it necessary that the petitioner should aver that he and those under whom he derives title, had not notice of the mistake. If they had', it would not have diminished their right to its correction. It would not invalidate the sale, that the execution is not indorsed ropleviable, or that it was not served on the defendant. And the remaining causes of demurrer have no substance. The petitioner has no remedy at law. The relief sought is not incompatible with the case made. The return upon the execution shows a satisfaction for so much, although it bo not expressed in those terms. And there was no occasion for making Jamos T. and King parties to the bill. The objections to the bill are formal and unsubstantial, and the decision of the District Court in overruling the demurrer is sustained and the decree affirmed.