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Pulse et al. v. Miller et al.

complied with, is too vague and uncertain to enable us to discover what the terms of the contract were. We can not, from the instrument itself nor from any other, ascertain what contract it is with which the parties are to comply. We can not discover what price was to be paid, when paid, or by whom. The terms of the contract are not stated, and the case is therefore clearly within the statute. Browne Statute of Frauds, section 385; Remick v. Sandford, 118 Mass. 102; Williams v. Morris, 95 U. S. 444. In Barickman v. Kuykendall, 6 Blackf. 21, it was said: “Under this statute, which is copied from that of Charles the 2d, the instrument of writing, whatever may be its form, must either show on its face, or by reference to some other instrument, every material part of a valid contract on the subject—such as the names of the parties, a description of the land, the amount of the purchase

money, etc."

The instrument in suit is given to secure the performance of some agreement concerning lands, and the fair inference from the language used is that the contract to which it refers is a verbal one. It has been held in analogous cases, that, where the contract does not appear to be in writing, the presumption is that it was verbal. Carlisle v. Brennan, 67 Ind. 12; Krohn v. Bantz, 68 Ind. 277; Neal v. Neal, 69 Ind. 419. We can not presume that the contract referred to in the one constituting the foundation of the action is in writing, without violating the principle upon which rest the cases we have cited. It appears, therefore, that the material part of the contract in suit is a verbal one, and, this being so, it is fully within the statute of frauds.

An undelivered deed is not a sufficient writing to take a case out of the statute. A deed is of no validity whatever, until delivered. Freeland v. Charnley, 80 Ind. 132. A deed can not be deemed a contract until it has been given force, and it is absolutely devoid of force until delivered. per

of any kind, although it contains all the terms of a con

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Nelson et al. v. Bronnenburg.

tract, is not operative as a contract until it has been delivered with the intention of giving it effect.

We do not find it necessary to consider whether the sum named in the instrument sued on is to be regarded as a penalty or as liquidated damages, for we are clear that the statute of frauds precludes any recovery upon it.

Judgment affirmed.

No. 5821.

NELSON ET AL. v. BRONNENBURG.

SHERIFF'S SALE.- Action to Set Aside.-- Pleading.-A complaint to set aside

a sheriff's sale of real estate on execution, against a vendee of the purchaser, on the ground that the execution defendant's personal property was not first exhausted, and that the real estate sold should have been subdivided and a part only sold, is bad on demurrer, if it do not show that the sheriff had knowledge of the personal property or by reasonable diligence could have discovered it, and that it was within reach of the execution, and was so unencumbered that its sale would have yielded

something, and that the vendee had notice of the irregularities. SAME.-Sale in Parcels.- Whenever it is doubtful whether real estate levied

on is legally susceptible of division, the action of the sheriff, taken in

good faith and without abuse of discretion, is conclusive. SAME.Dirision. It is doubtful whether, in selling an undivided share

of real estate on execution, a sheriff has power to subdivide such share

and sell less than the whole of it. SAME.-Sale in Solido.Limitation of Action to Set Aside.- A sheriff's sale of

real estate in solido, which should have been sold in parcels, is not void but voidable, and proceedings to set it aside must be brought within a reasonable time--and it seems that this must be done within the year allowed for redemption, unless excuse be shown for the delay. From the Madison Circuit Court.

R. Lake, W. R. Pierse, H. D. Thompson and W. March, for appellants.

J. W. Sansberry, E. B. Goodykoonts and M. A. Chipman, for appellee.

VOL. 81.-13

Nelson et al. r. Bronnenburg.

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BICKNELL, C. C.—The appellee brought this suit to set aside a sheriff's deed, and quiet his title to real estate. The complaint states that, on August 14th, 1871, the plaintiff bought from Jasper H. Nelson an undivided half of a certain lot in the town of Anderson, and on the 19th of October, 1871, bought from the same person the other undivided half of said lot; that the plaintiff's deeds were dated respectively August 14th, 1871, and October 19th, 1871; that on the 16th day of August, 1871, the defendant Chambers obtained a judgment in the Court of Common Pleas of Madison county against said Nelson for $229.90 and costs, and that under an execution issued on that judgment an undivided half of said lot was sold by the sheriff on April 27th, 1872, as the property of said Nelson, to the defendant Chambers, who obtained a deed therefor from the sheriff, on the 28th of April, 1873, and afterwards, in 1873, sold and conveyed said undivided half to his co-defendant Susan Nelson; that said sheriff's sale was void, because said undivided half of said lot was not offered in parcels; that one-fourth thereof would have satisfied said execution; that the lot was divisible without injury into four lots, each 18 by 142 feet, any one of which would have been worth $1,000, and would have been amply sufficient to satisfy said judgment and costs, which amounted to $272 only; that said sale was also void, because said Jasper H. Nelson had personal property subject to said execution, which ought to have been sold and exhausted first. The complaint demanded that both said deeds be set aside, and that the plaintiff be quieted in his title, etc. A demurror to the complaint for want of sufficient facts was overruled; the general denial was filed and the issues were tried by a jury, who made the following verdict: “We, the jury, find for the plaintiff, and that the sheriff's sale described in the complaint was illegal.” A new trial was granted, and the cause was again tried by a jury, who found for the defendants. A second new trial was granted, and the cause was a third time tried by a jury, who returned the following ver

Nelson et al. v. Bronnenburg.

dict: “We, the jury, find for the plaintiff.” They also returned answers to interrogatories. The defendants moved that the jury be required to answer further the interrogatories numbered 2, 3, 4, 5, 9, 12, 13 and 18; this motion was overruled. The defendants' motions for judgment upon the answers to the interrogatories, for a venire de novo, for a new trial and in arrest of judgment, were all overruled. Judgment was rendered on the verdict and the defendants appealed.

They assigned errors as follows:
1st. In overruling the demurrer to the complaint.

2d. In overruling the defendants' motion for judgment upon the answers to the interrogatories.

3d. In overruling the defendants' motion for a venire de novo. 4th. In overruling the motion for a new trial. 5th. In overruling the motion in arrest of judgment.

The complaint claims that the deeds shall be set aside and the plaintiff's title quieted for three reasons :

1st. That the undivided half of the lot was not sold in parcels.

2d. That the undivided half of the lot was sold for an inadequate price.

3d. That the undivided half of the lot was sold before the defendants' personal property was exhausted.

In Indiana, the duties of a sheriff upon a sale on execution are, in general, regulated by statute. “In all cases where the personal estate of the debtor, subject to execution, is insufficient to satisfy the execution, the real estate shall be exempt from levy and sale until the personal estate is levied upon and sold,” etc. 1 R. S. 1876, p. 210, section 444. It has been held under this section, that where an execution defendant, pending a levy upon his real estate, and before the sale, offered personal property to the sheriff, which offer the sheriff disregarded, a subsequent sale of the real estate should be set aside, in a direct proceeding for that purpose. Davis v. Campbell, 12 Ind. 192. It is also held that the sheriff need not first levy upon personal property, if it be so encumbered

Nelson et ul. v. Bronnenburg,

that it would produce nothing upon the execution. Detrick v. The State Bank, 6 Ind. 139. And under another statute, which requires the sheriff to levy first upon the property designated by the execution defendant, it is held that the sheriff is not bound to seek the execution defendant and demand from him such designation. Drake v. Murphy, 42 Ind. 82.

The complaint under consideration simply alleges that Jasper H. Nelson had personal property subject to execution, which ought to have been, but was not, exhausted before any sale of his real estate. It is not alleged that the sheriff had knowledge of such personal property, or by reasonable diligence could have discovered it. There is no description of the property, and no statement of its locality. It is not averred that it was in the county. It is not averred that it might have been taken under the execution held by the sheriff, nor that it was unencumbered, so that a sale of it would have produced something upon the execution. Some of these defects are fatal. There is no cause of action in such a case, without an averment that the sheriff had knowledge of the personal property, or by reasonable diligence might have discovered it, and that the same might have been taken under the execution if he had discovered it. The complaint contains no cause of action so far as relates to the alleged failure to levy upon personal property. Inadequacy of price alone is not sufficient to avoid a sheriff's sale. Roe v. Ross, 2 Ind. 99; Benton v. Shreeve, 4 Ind. 66 ; Sowle v. Champion, 16 Ind. 165. But inadequacy of price, in connection with other irregularities, may be sufficient to avoid a sheriff's sale. Darson v. Jackson, 62 Ind. 171. As where property is unnecessarily sold as a whole instead of in parcels. Reed v. Carter, 3 Blackf. 376 (26 Am. Dec. 422); Doe v. Smith, 4 Blackf. 228; Reed v. Diven, 7 Ind. 189. The statute in reference to sales of real estate on execution, in parcels, is as follows: "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

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