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Mugge et al. v. Helgemeier et al.
therefore, and the only one joined by the answer, was the validity of that sale. On that issue alone was the court required to find and adjudge; and it is certainly not available cause for complaint by the appellants or either of them, that the court limited its judgment by the proviso, which, if it has any effect, is for their benefit.
The principal objections made to the sheriff's sale are: That it was made without an appraisement of the rents and profits, and of the property itself, that, consisting of separate parcels, the property was sold in a lump, and that the purchase price was not paid, nor credited on the writ.
The last objection has no foundation in the evidence, if even in the pleading, where it appears only in the reply, and, in reference to the second paragraph of the complaint, at least, is a clear departure.
An appraisement was not necessary. The judgment on which the execution issued, by virtue of which the sale was made, was for a sum exceeding a thousand dollars, of which an amount exceeding three hundred dollars was directed, in the judgment, to be collected without relief from valuation or appraisement laws, the remaining portion being with relief; and these facts were properly recited in the writ.
It necessarily follows that so long as any part of the sum due upon the writ remained unpaid, which was collectible without relief, a sale without appraisement was lawful. It has been held that the sale may be so made where there are executions upon three judgments simultaneously rendered, one of which only is without relief. Robinson v. Bush, 17 Ind. 517. And so, also, in case of a judgment in attachment rendered in favor of several claimants, when several executions are issued against the property, some of which are collectible without appraisement. Shirk v. Wilson, 13 Ind. 129.
There is no ground for making a distinction where different parts of a judgment are collectible, one without and another with appraisement. Besides, it was shown that the title to the lands in question had been put in the name of the appel
Mugge et al. v. Helgemeier et al.
lant Emma, and, upon complaint of the judgment plaintiff, it had been found that they were in fact the lands of her coappellant, the judgment defendant, and had been conveyed to her in fraud of his creditors, and, accordingly, it had been ordered and adjudged that the conveyance be set aside as fraudulent, and that the lands be sold in satisfaction of the said judgment. It is a statutory provision that property conveyed by a debtor with intent to hinder, delay or defraud his creditors, shall be sold without appraisement. Code of 1852, section 456, R. S. 1881, section 743.
It is suggested that this provision does not apply in this instance, because the conveyance which was declared fraudulent was not made by the debtor ; but we are of the opinion that it applies to property which the debtor fraudulently procured to be conveyed to another, and which ought to have been conveyed to himself, as well as to such as he may have had in his own name, and himself have fraudulently conveyed to another.
It is further objected that in the judgment whereby the title of Mrs. Mugge was set aside, and the land declared subject to the execution upon said judgment, it was not ordered that the same be sold without appraisement; and it is insisted that under section 381 of the code, R. S. 1881, section 576, “When a judgment is to be executed without relief from appraisement laws, it shall be so ordered in the judgment.”
We are clear, however, that the provision cited is not applicable. When a judgment is rendered upon a contract waiving appraisement, or in cases wherein, on account of the nature of the cause of action, an appraisement is not allowed, it must be so expressed in order that the execution may so issue. Stevenson v. The State, ex rel., 71 Ind. 52. The judgment whereby, in this case, the fraudulent conveyance was set aside, and the property declared subject to the execution, was not, however, the judgment by virtue of which the sale in question was made.
That judgment simply settled the fact that the fraudulent conveyance had been made, and that the property
Mugge et al. v. Helgemeier et al.
was subject to sale on the execution. It followed, as matter of law, that the sale should be without appraisement, even though the original judgment and execution had not so provided.
It remains to be considered whether the sale ought to have been set aside because not made in parcels. The sheriff's return shows that the rents and profits for the period of seven years, of each parcel, were separately offered, and then of the different parcels in various combinations, and of all together, and then each parcel in fee simple was offered, and in like manner the different parcels in combinations of two, three, etc., and, no bids having been made, the parcels were all offered together and struck off to the judgment plaintiff for the sum of $1,202.61; and for $1,150.90 of that sum the judgment plaintiff receipted upon the writ in full thereof, and paid the remainder to the sheriff in satisfaction of the costs.
The question, therefore, which the record presents, is whether, after making a proper offer of the rents and profits, and of the fee simple of different parcels of real estate, the sheriff may offer and sell the parcels together, in satisfaction of an execution. The question has been decided adversely to the appellants in Weaver v. Guyer, 59 Ind. 195.
This question, however, the appellants' counsel has not urged upon our consideration, the point of the argument which he makes being that the offer in parcels was a nullity, because made without an appraisement—an objection which we have shown to be unfounded.
There is some conflict in the evidence as to the value of the land sold, and, the sheriff having offered the parcels separately and in different combinations of two, three or more, before offering all together, there is no ground upon which this court can say that the price received was inadequate, in the face of the finding and judgment of the superior court to the contrary.
Judgment affirmed, with costs.
Bitters r. The Board of Commissioners of Fulton County.
BITTERS v. THE BOARD OF COMMISSIONERS OF FULTON
CONSTITUTIONAL LAW.—Publication of Delinquent Tax List.- Fees and Sal
aries. — Repeal of Statute.--Section 28 of the fee and salary act of March
ELLIOTT, C. J.-Appellant published the delinquent tax list of Fulton county, and claimed compensation at the rate of thirty-five cents for each description; the county board refused to allow the amount claimed, but did allow twenty cents, and the circuit court, on appeal, sustained the judgment of the board.
Two acts containing provisions relative to the compensation to be paid for publishing the delinquent tax lists were passed by the General Assembly at the session of 1879, the first on the 21st and the second on the 31st day of March. In section 3 of the act of March 21st is a provision that the county auditor shall have the delinquent list published “at a cost not exceeding twenty cents per tract." Acts 1879, p. 199. Section 28 of the act of March 31st reads thus: “ For publishing delinquent list, 35 cents for each description.” The first act is amendatory of, and supplementary to, "An act to provide for a uniform assessment of property, and for the collection and return of taxes thereon.” The second is what is generally known as the “ fee and salary bill.” It is conceded by appellee that if section 28 of the latter act is valid, it repeals the clause in section 3 of the earlier act making provision for printing the delinquent list. The contention is, that section 28 is unconstitutional.
Bitters v. The Board of Commissioners of Fulton County.
It is a familiar rule that laws enacted by the supreme legislative power of the State will be upheld, unless they are clearly in conflict with the constitution. In doubtful cases the judiciary will respect and maintain the acts of the legislative department of the
government. We do not think it can be justly said that section 28 is not within the title of the act of 1879. It is not necessary that the title should embrace all the specifications necessary to exhibit its subject matter in detail. The title of the act of March 31st, 1879, reads thus: “An act fixing certain fees to be taxed in the offices, and the salaries of officers therein named; providing for certain employes in certain public offices, and fixing their compensation ; defining certain duties and liabilities of officers and persons therein named; providing for the disposition of certain moneys, making certain appropriations; declaring certain violations of the provisions of this act to be a penal offence, and prescribing the punishment, and repealing all conflicting laws."
The title of the act is broad enough to cover the publication of delinquent tax lists. The publication of the list is properly connected with the duty of public officers, and the compensation to be paid for services rendered in advertising matters expressly required by law to be advertised by public officers, is fairly within the title of the act. The title is sufficient to indicate that the body contains provisions relative to the duties of public officers in relation to the collection of the public revenues, and what is properly connected with the compensation of officers or others engaged in levying and collecting it, is embraced within its title. Shipley v. The City of Terre Haute, 74 Ind. 297; The State, ex rel., v. Sullivan, 74 Ind. 121; Bright v. McCullough, 27 Ind. 223; Greencastle, etc., T. P. Co. v. The State, ex rel., 28 Ind. 382; Brandon v. The State, 16 Ind. 197. What was said in The State, ex rel., v. Sullivan, supra, may be correctly said here: “The subjectmatter and general character of the act are fairly expressed