declared it should operate, and we ought not to sacrifice the substantial rights of purchasers to so small a matter. If we should do so, we would make the deed inoperative, defeat the rights of intervening purchasers, and disregard the acts of the grantor, but, in upholding the deed, we do him no injustice; for it is evident that he meant to divest himself of title, and we do no more than carry that intention, so plainly manifested by his acts, into effect, and give protection to rights acquired on the faith of his deed and his acts. Judgment affirmed.

(108 Ind. 347)

RICHEY V. MERRITT.

(Supreme Court of Indiana. December 7, 1886.) EXECUTION-ASSIGNMENT-SALE-IRREGULARITIES-FAILURE TO OBJECT IN TIME-Es

TOPPEL.

The assignee of an execution plaintiff is chargeable with notice of any irregularity in the issuance of the execution after he becomes assignee, or in the sale thereunder; and, when he becomes the purchaser at such sale, it may be set aside for irregularities that could not be made effective as against an innocent third party purchasing in good faith without notice; but where an execution defendant, entitled to have lands sold in a certain order, fails to take steps to have so done, and fails to object to their sale in a different order, or where he fails to object to a sale as irregular because a former levy is undisposed of, until after the sale is consummated, he is, in the absence of any excuse for such failure, estopped from complaining of such irregularities.1

Appeal from Clinton circuit court.

J. N. Sims, for appellant. Kent & Merritt, for appellee.

NIBLACK, J. This was a suit by John Merritt against James M. Richey and others to set aside a sheriff's sale of real estate. A demurrer was sustained to the complaint, and there was a judgment upon demurrer in favor of the defendants. Upon an appeal to this court, the complaint was held to be sufficient, and the judgment was reversed. Merritt v. Richey, 97 Ind. 236. After the cause was remanded, the court tried the cause without a jury, and,' upon proper request, made a special finding of the facts seemingly established by the evidence.

The finding, in brief, was:

That on the thirty-first day of May, 1877, Marcellus Bristow was the owner and in the actual possession of lots 3, 4, 5, and 6, in block No. 15, in the town of Scircleville, in Clinton county, in this state; also of lots 1, 7, and 8, in said block No. 15 of said town; also of blocks Nos. 13, 14, and 16, in said town; that, on the nineteenth day of January, 1880, the said Bristow became also the owner of lots 3 and 4, in block No. 26, and of lots 1, 2, 7, and 8, in block No. 34, and of lots 1, 2, 3, 4, 5, 6, 7, and 8, in block No. 38, and of lots 1, 2, 3, 4, 5, 6, 7, and 8, in block No. 41, all in said town of Scircleville; that on the twenty-fifth day of January, 1880, in a suit for partition in the Clinton circuit court, in which Lucinda Bristow and others were plaintiffs, and the said Marcellus Bristow and others were defendants, the N. W. of the S. W. of section 32, in township 22 N., range 2 E., in said county of Clinton, was, among other lands, assigned and set off to the said Marcellus Bristow; that on the said thirty-first day of May, 1877, David P. Barner, cashier of the First National Bank of Frankfort, obtained a judgment in the Clinton circuit court against one Samuel Merritt, and against the said Marcellus Bristow, personally, as well as against him as administrator of the estate of Williamson Farrar, deceased, for the sum of $178.64, with costs of suit, and interest at the rate of 10 per cent. per annum. That on the third day of April, 1879, the same Marcellus Bristow and his wife sold, and by a warranty deed conveyed, to John Merritt, the plaintiff herein, said lots 3, 4, 5, and 6, in block No. 15, in said town of Scircleville;

1See note at end of case.

that on the twenty-third day of September, 1879, the said Marcellus Bristow and his wife sold and conveyed to Joel A. Haden block No. 16, in said town of Scircleville, and all that part or parcel of land lying between said block No. 16 and the N. W. of the S. W. of section 3, in town 21 N., range 2 E., in said county of Clinton; that on said twenty-third day of September, 1879, the said Marcellus Bristow and his wife sold and conveyed to Samuel Armstrong all that part or parcel of land lying between said block No. 15, in the town of Scireleville, and the N. W. 1 of the S. W. of said section 3, in town 21 N., range 2 E.; that on the sixteenth day of February, 1880, the said Marcellus Bristow and his wife, in consideration of the sum of $800, conveyed and warranted to the above-named James M. Richey the N. W. 4 of the S. W. of section 32, town 22 N., range 2, E., of which the said Richey went into possession; that on the tenth day of May, 1880, the said Marcellus Bristow and his wife conveyed to Samuel Merritt lots 1, 2, 7, and 8, in block No. 34, and lots 1, 2, 3, 4, 5, 6, 7, and 8, in block No. 38, and lots 1, 2, 3, 4, 5, 6, 7, and 8, in block No. 41, all in said town of Scircleville, and that on the eighteenth day of May, 1880, the said Samuel Merritt and wife conveyed the same real estate to Richey; that on the sixteenth day of February, 1881, the said Marcellus Bristow and his wife conveyed to Charles Howard lot 4, in block No. 14, in the same town of Scircleville.

That on the thirteenth day of April, 1880, David P. Barner caused an execution to be issued on the judgment so recovered by him, as hereinabove stated, and to be delivered to the sheriff of Clinton county; that said sheriff levied said execution on the N. W. of the S. W. of section 32, in township 22 N., range 2 E., being the same land conveyed by Marcellus Bristow and wife to Richey, as heretofore stated, and advertised the same for sale on the eleventh day of September, 1880; that on the day last named the said Richey paid to the said Barner the sum of $163.60, being the amount of principal and interest then due on said judgment, and to the sheriff the further sum of $43.50, in full of costs due thereon; that said execution was thereupon returned by the sheriff without making sale of the land so levied upon; that the said Barner, after so receiving the amount due on said judgment, assigned the same in due form to the said Richey; that the land upon which the execution was so levied was, on said eleventh day of September, 1880, worth the sum of $1,000.

That on the twenty-third day of October, 1880, another execution was issued on said judgment at the request and for the use of Richey, and delivered to the sheriff of Clinton county, who levied the same on lots 3, 4, 5, and 6, in block No. 15, lots 1, 2, 3, 4, 5, 6, 7, and 8, in block No. 38, lots 1, 2, 7, and 8, in block No. 31, lots 1, 2, 3, 4, 5, 6, 7, and 8, in block No. 41, and upon block No. 16, all in the town of Scircleville, aforesaid; also on all that part or parcel of land lying between said block No. 16, and the N. W. 1 of the S. W. of section 3, township 21 N., range 2 E.; also on all that part or parcel of land lying between said block No. 15, and the N. W. of the S. W. of section 3, above described; also on the S. of the S. E. of the N. E. of section 36, in township 22 N., range 2 E.; that said real estate was advertised by the sheriff for sale on the eleventh day of December, 1880, at which time he, the said sheriff, proceeded to offer said real estate for sale; that when the fee-simple of the S. of the S. E. of the N. E. of section 36, hereinabove referred to, was offered for sale, the plaintiff, John Merritt, bid for the same the sum of ten dollars, and said tract of land was openly struck off and sold to him, the said Merritt, for that sum; that when the fee-simple of said lots 3, 4, 5, and 6, in block No. 15, in the town of Scircleville, which had been, as already stated, conveyed by Marcellus Bristow and wife to John Merritt, the plaintiff, on the third day of April, 1879, was offered for sale, the defendant, Richey, bid for the same the sum of $244.67, and said lots were in like manner struck off and sold to him, the said Richey, for that sum v.9N.E.no.4-24

of money; that, after the expiration of one year from the time of his purchase, Richey received a deed from the sheriff for said lots.

Upon the foregoing facts the circuit court came to the conclusion that the sheriff's sale of the lots lastly above described was illegal and void, and ought to be set aside, and judgment was rendered accordingly. Richey alone appeals, and assigns error upon the conclusions of law stated by the circuit court. When this cause was before us upon the former appeal, it was held to be a well-settled proposition that, where a judgment is a lien on several parcels of land which are afterwards sold by the judgment defendant to various persons, and at different times, a court of equity will compel a sale of such lands, to satisfy such judgment, to be made, in the inverse order of their alienation; and that is undoubtedly a correct statement of the law abstractly considered. But the extent to which a court of equity will go in setting aside a sale of land on execution made in disregard of such inverse order of alienation is not, perhaps, so well settled. Rorer, Jud. Sales, & 794; Freem. Ex'ns, § 308.

An execution plaintiff is chargeable with notice of all irregularities which may have occurred both in the issuance of an execution, and in the sale of property upon it. Hence, when an execution plaintiff becomes the purchaser, the sale will be set aside for irregularities which could not be made effective against an innocent third party not so chargeable with notice of mere irregularities. In this case, Richey, being the assignee of the judgment, stands in the relation of execution plaintiff to the execution which was issued after he became such assignee, and is, to the same extent, chargeable with notice. On the other hand, the execution defendant, by his acquiescence in irregularities in the proceedings upon an execution, including the sale of property upon it, may estop himself from obtaining an order setting aside

such a sale.

It is quite evident from the facts found by the circuit court that Merritt, the plaintiff, might have, at the proper time, caused Richey to be enjoined from selling the particular lots in controversy in this case until the latter had first exhausted the lands more recently conveyed to others by Marcellus Bristow, or that he might, by other proceedings, have obtained an order in advance requiring Richey to make sale of the lands conveyed away by Bristow in the inverse order of their alienation. Sansberry v. Lord, 82 Ind. 521. But, as must have been observed, the special finding of facts contains nothing showing any excuse for the failure of the plaintiff to take measures for his protection either in the one or the other methods indicated. Upon the facts found, the reasonable inference is that the plaintiff had notice, in due time, of both the levy upon and the sale of his property, and that he made no objection to either until after the sale was consummated. It was then too late to object that the proper order of priority was not observed in making the levy as well as the sale. Sansberry v. Lord, supra.

It is also true that the levy of an execution upon property, whether real or personal, of sufficient value to pay the judgment upon which it issued, creates a presumption of the satisfaction of such judgment, and operates as such until the levy is legally disposed of, either by the sale of the property, or in some other lawful manner, and that an alias execution issued upon such judgment, before such a levy is legally disposed of, is both irregular and voidable, and may be set aside on motion if made before the property is sold upon it. Freem. Ex'ns, §§ 49, 50; Lindley v. Kelley, 42 Ind. 294; Frank v. Brasket, 44 Ind. 92; Neff v. Hagaman, 78 Ind. 57; Quakenbush v. Taylor, 86 Ind. 270; McIver v. Ballard, 96 Ind. 76. But where the execution defendant waives his right to have an alias execution, so issued, set aside, and permits his property to be levied upon and sold under it, he cannot afterwards question the validity of the sale on account of the irregular and voidable character of the execution. Doe v. Dutton, 2 Ind. 309; Sowle v. Champion, 16 Ind. 165; Culbertson v. Milhollin, 22 Ind. 362; Mavity v. Eastridge,

67 Ind. 211; Martin v. Prather, 82 Ind. 535; Martin v. Pifer, 96 Ind. 246; Rose v. Ingram, 98 Ind. 276. The objection, therefore, that the execution in question in this case was improvidently issued, and, in consequence, voidable, cannot now be made available as a cause for setting aside the sale made upon it. Freem. Ex'ns, § 307.

By a recurrence of the opinion pronounced in this case at the former appeal, it will be seen that there was an averment in the complaint making an excuse for the plaintiff's delay in objecting to the sale of his property, but that averment was not sustained by the facts as found at the trial; and hence, as to that averment, it must be inferred that the evidence was not sufficient to support it. The plaintiff, therefore, in a very material respect, failed to make out the case presented by his complaint. As to the parties who may complain of irregularities in proceedings upon an execution, see the cases of Weaver v. Guyer, 59 Ind. 195, and Jones v. Carnahan, 63 Ind. 229.

The judgment is reversed, with costs, and the cause is remanded, with instructions to the circuit court to restate its conclusions of law in accordance with this opinion, and to render judgment thereon in favor of the defendant below.

NOTE.

An estoppel may arise from silence, or from an omission to act, Leather Manuf'rs' Nat. Bank v. Morgan, 6 Sup. Ct. Rep. 657; County of Anderson v. Beal, 5 Sup. Ct. Rep. 433; Steel v. St. Louis Smelting & Refining Co., 1 Sup. Ct. Rep. 389; Swayze's Ex'rs v. Carter, (N. J.) 3 Atl. Rep. 706; Peters v. Griffee, (Ind.) 8 N. E. Rep. 727; Sessions v. Rice, (Iowa,) 30 N. W. Rep.-; Morse v. Byam, (Mich.) 22 N. W. Rep. 54; Tiffany v. Henderson, (Iowa,) 7 N. W. Rep. 683; but not unless the party is under some legal or moral obligation to speak or act, Simmons v. Taylor, 23 Fed. Rep. 849; as when one neglects to discharge the duty devolving on him, through the usages of business, of disclosing the truth which he has the means of ascertaining by the exercise of ordinary diligence, Leather Manuf'rs' Nat. Bank v. Morgan, 6 Sup. Ct. Rep. 657; Coleman v. O'Neil, (Minn.) 1 N. W. Rep. 846; or, having an interest to prevent an act being done, he acquiesces in it, so as to induce a reasonable belief that he consents to it, Swayze's Ex'rs v. Carter, (N. J.) 3 Atl. Rep. 706; Tiffany v. Henderson, (Iowa,) 7 N. W. Rep. 683; Gray v. Crockett, (Kan.) 10 Pac. Rep. 452.

(108 Ind. 345)

BARROWS and others v. BARROWS and others.
(Supreme Court of Indiana. November 23, 1886.)

1. FRAUDULENT CONVEYANCES-PARTICIPANT IN THE FRAUD.

A fraudulent conveyance cannot be set aside at the instance of one who participated in the fraud.

2. SAME-SUBSEQUENT CREDITOR.

A subsequent creditor, in order to set aside a voluntary conveyance, must prove an intent on the part of the debtor to defraud subsequent as well as existing cred

itors.

Appeal from circuit court, Monroe county.

Suit to set aside fraudulent conveyance.

R. A. Fulk, for appellants. Loudon & Miers, for appellees.

ELLIOTT, C. J. The appellee Mary Barrows brought this suit to set aside a conveyance executed to Rachel Barrows, and obtained the decree she sought. David Barrows owned the land previous to his marriage with Mary, on the first day of July, 1883. Shortly after his marriage, July 9, 1883, he and his wife executed the deed to his mother, one of the appellants. In May, 1884, a decree of divorce was granted Mary Barrows, and a judgment for $150 alimony was rendered in her favor. She seeks to set aside the conveyance to her husband's mother as fraudulent, and subject the land to the payment of her judgment. But it is clear that the evidence does not make a case in her favor, for, upon her own testimony, the case is against her. She testified: "The deed was delivered to Mrs. Barrows by David, and she was to hold the

land to prevent the Langley set from getting it. We made the deed because I was afraid of the Langley set, for David had been going with one of the Langley girls before we were married. I was afraid the Langley girl would break David up; that the Langley woman would sue him for breach of marriage contract."

It is settled law that a voluntary conveyance is valid between the parties, and it is equally well settled that one who participates in a fraud cannot avoid the transaction. These two principles would, of themselves, settle the case against the appellee. But there is still another reason why the appellee cannot avoid the conveyance; and that is, she was in no sense a creditor of the grantor when the conveyance was made, and there is not the slightest evidence that the conveyance was made with intent to defraud her. It rests on the person who subsequently becomes a creditor, seeking to set aside a fraudulent conveyance, to prove that there was an intent on the part of the debtor to defraud subsequent as well as existing creditors. Stumph v. Bruner, 89 Ind. 556.

Judgment reversed, with instruction to grant a new trial.

(108 Ind. 334)

SINGER MANUF'G Co. v. FORSYTHE and others.

(Supreme Court of Indiana. November 23, 1886.)

BONDS OF AGENT-APPLICATION TO SUBJECT-MATTER-PAROL EVIDENCE OF COLLATERAL CONTRACT.

In an action for breach of the bond of an agent, it is competent and proper for the defendant to show a parol contemporaneous agreement, forming the consideration for the bond, where the bond fails to state any consideration, and indicates on its face that it is collateral to some contract not expressed therein; and the extent of the liability of the guarantors may be thus limited to indebtedness incurred as to matters contemplated in such agreement, although the bond, if construed alone, might seem to include all indebtedness.

Appeal from circuit court, Decatur county.

L. Maxwell and D. Wilson, for appellant.

The questions of law presented by the record are (1) whether, construing the bond and the contemporaneous agency agreement together, the former, which in terms covers every indebtedness or liability now existing, or which may hereafter in any manner exist or be incurred, must nevertheless, as matter of law, be confined to indebtedness accruing under the agency agreement: (2) if not, whether parol evidence can be received to show that such was the understanding and agreement of the parties; (3) if the second proposition is sustained, whether there is competent proof of any such parol agreement in this case.

Reading the two papers together, the result is simply that the company appoints Forsythe its agent, and, for the present agrees to furnish him with machines on consignment; taking a bond, however, to secure not merely his fidelity in that relation, but any and every indebtedness which might thereafter in any manner exist or be incurred. The admission of parol evidence to show that it was agreed that the bond should cover only obligations arising under the agency contract was in violation of elementary principles. Singer Manuf'g Co. v. Hester, 2 McCrary, 417; S. C. 6 Fed. Rep. 804; Domestic S. M. Co. v. Webster, 47 Iowa, 357. But parol evidence, if admissible at all to vary the terms of the bond, must surely be of a character to show a real agreement between the parties; and, if the agreement was made on either side by an agent, his authority to act in that behalf must be shown by the defendants, for on them rests the burden of proof, if they seek to vary the terms of the bond. There is no satisfactory evidence of any such agreement.