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Nelson et al. v. Bronnenburg.

execution, unless the same is not susceptible of division." 1 R. S. 1876, p. 217, section 466. In the case at bar there were no separate parcels of the land. The property was an undivided half of a town lot; if there was any irregularity in the sale, it was a violation of the last clause of said section 466, to wit, the sale of more than was necessary to satisfy the execution, when the interest levied on, namely, the undivided half of the lot, was susceptible of division.

It is questionable whether section 466, supra, embraces any lands not susceptible of division territorially; but, waiving that question for the present, what is the general duty of the sheriff under section 466? In Reed v. Diven, supra, the court held that a similar provision in the statutes of 1852 imposed a duty on the sheriff which he could not omit. They said: “The property levied on, being divisible, he is restricted from offering more of it than may be necessary to discharge the debt in his hands for collection.” And they held, that, under the statute, the sheriff himself, when he levies on real estate, must be presumed to know whether it is susceptible of division or not. In The State v. Leach, 10 Ind. 308, under our present statute, Reed v. Diven, supra, was cited with approbation. In Voss v. Johnson, 41 Ind. 19, the court, after citing section 466, supra, said: “We are of opinion that policy requires that sheriffs and execution plaintiffs shall be held to a reasonably strict compliance with these statutes."

The allegation in the complaint is, that the sheriff sold to the execution plaintiff the entire undivided half of said lot, when the lot was susceptible of division into four equal parts, and when the undivided fourth of it was sufficient to satisfy the execution, being worth $1,000, while the amount due on the execution was only $272, and that, therefore, not only the sheriff's deed to the execution plaintiff, but the deed of the latter to his co-defendant, Susan Nelson, were both void.

If section 466, supra, embraces such a case as the present, the question arises, can the plaintiff, under the circumstances

stated in the complaint, take advantage of the non-compli

Nelson et al. v. Bronnenburg.

ance with the statute. If a sale in violation of the statute were absolutely void, and a mere nullity, the right to set it aside could not be barred by delay in proceeding within the time fixed by the statute of limitations, but if the sale be voidable only, it is capable of affirmation and is valid until avoided, and on general principles the application to set such a sale aside would not be sustained unless made within a reasonable time.

It was formerly held in Indiana, that such a sale by the sheriff was absolutely void, a mere nullity; and in the case of Catlett v. Gilbert, 23 Ind. 614, the preceding cases of West v. Cooper, 19 Ind. 1, and Patton v. Stewart, 19 Ind. 233, were overruled, because they held such sales voidable only, and because they changed the rule laid down in Banks v. Bales, 16 Ind. 423, and other earlier cases, which declared that such sales were absolutely void. But the ruling in Catlett v. Gilbert, supra, has not been adhered to. In Bardeus v. Huber, 45 Ind. 235, the court said:“ We do not mean to decide that if a sheriff shall sell the whole of a single tract or parcel of land, when it is susceptible of division without injury, and when a sale of part of it would satisfy the execution, the sale is necessarily void.” And in Weaver v. Guyer, 59 Ind. 195, the court said: “ sometimes the word 'void' is used in the books where 'voidable' would convey the meaning more accurately. So in the case of Banks v. Bales, supra, where more land had been sold than was necessary to satisfy an execution, and it appeared that it was susceptible of division, the sheriff's deed was pronounced a nullity. We are of opinion, that that is a mistake; that a sheriff's deed in such case is not a nullity, nor is such sale void ; such sale is doubtless voidable; but, unless avoided by a party entitled to avoid it, it will be valid.” So in Stotsenburg v. Same, 75 Ind. 538, the court said: "A sale of real estate, as an entirety, which is susceptible of division and sale in parcels sufficient to satisfy the execution, is voidable, and may be set aside." See also Jones v. Kokomo, etc., Association, 77 Ind. 340.

Nelson et al. v. Bronnenburg.

It may therefore be considered as settled in Indiana, that such sales are voidable, but not void, and that is the general rule throughout the United States. See the cases cited in Freeman Ex., section 296. It follows that such a sale can not be set aside against an innocent vendee of the original purchaser, unless such vendee had notice of the irregularity in the sale. The McLean Co. Bank v. Flagg, 31 Ill. 290; Mixer v. Sibley, 53 Ill. 61.

In the present case, the property was bought at the execution sale by the judgment plaintiff, who, after the expiration of the year for redemption, conveyed it to his co-defendant, Susan Nelson. The complaint does not charge that she had any notice of the alleged irregularity in the sale. It was held, in the case of Piel v. Brayer, 30 Ind. 332, that the vendee of a judgment plaintiff, who purchased at a sheriff's sale, is chargeable with notice of the contents of the record, and that where the record showed a levy upon separate parcels of land, and a sale of them in mass, such vendee had constructive notice of that irregularity ; but, in the present case, the record merely shows a levy and sale of the undivided half of a town lot, without anything to indicate susceptibility of division, or irregularity of any sort in the sale. In Hasselman v. Lowe, 70 Ind. 414, the court below had instructed the jury that “The judgment plaintiffs are chargeable with notice of all irregularities in a sheriff's sale, and the grantees of the judgment plaintiffs can take no greater title or right in the property sold at sheriff's sale than was acquired by the judgment plaintiffs by virtue of said sale.” This court held that the foregoing instruction was wrong, and that if such a purchaser at the sheriff's sale, after obtaining his deed from the sheriff, should convey the land for a valuable consideration, without notice, his grantees might become innocent purchasers, and thus take a better title than he had. The complaint, therefore, stated no cause of action against the defendant, Susan Nelson.

Upon the claim alleged against the defendant Chambers, who was the execution plaintiff and also the purchaser at the exe

Nelson et al. v. Bronnenburg.

cution sale, it may be observed that, in some cases, a sale of the entire property is indispensable; as, for example, where a single lot is subject to a mortgage covering the whole of it, and the equity of redemption is levied upon and is to be sold on execution, subject to the mortgage. The equity of redemption can not be divided and sold in parcels. Tifft v. Barton, 4 Denio, 171.

And whenever it is doubtful whether the interest levied on is legally susceptible of division, the action of the officer upon such a question, where no fraud, no bad faith, and no abuse of discretion are shown, is conclusive. Thus, in the case of Wright v. Yetts, 30 Ind. 185, the court said: “Where, as in the case of Catlett v. Gilbert, 23 Ind. 614, the property sold as an entirety was occupied as two separate parcels, and this fact was known to the sheriff and the purchaser, there can be no serious doubt that the sale can not be sustained, for the express letter of the statute has been disregarded. But where there is no actual division of the property, and the point must be determined by the sheriff, whether or not the same is susceptible of division, a more difficult question is presented, and one requiring the exercise of official discretion. Upon the conclusion reached, the sheriff must base his official action, and unless that action operates as a fraud upon the execution defendant or his creditors, it can not be reviewed by the court. The statute commits to the judgment of the officer the solution of the inquiry whether the property can be divided or not, and upon a reasonable exercise of this judgment the purchaser has a right to rely. Wherever there may be an honest difference of opinion, the conclusion reached by the officer must be final." So in the case of Bardeus v. Huber, 45 Ind. 235, OSBORN, J., delivering the opinion of the court, said: “We think the

provision that ‘no more of any real estate shall be offered for sale, than shall be necessary to satisfy the execution, unless the same is not susceptible of division,' requires the sheriff to exercise a sound discretion in offering real estate for sale on execution, where there has been no actual division made, and it is at the

Nelson et al. r. Bronnenburg.

time in one tract or parcel. It is not enough that there may be an honest difference of opinion as to the propriety of a division. But it must be so palpable and clear that the sale should have been in parcels, that a sale without division would operate as a fraud upon the execution defendant, and show that the sale of the whole tract was an abuse of official discretion." And in Freeman on Executions, section 295, we find the following: “But it must be remembered that, with respect to subdividing a large tract into parcels, the officer must exercise his discretion; and when he has honestly done so, his judgment must generally be regarded as conclusive.” If such be the law as applicable to any tract of land capable of territorial subdivision, with still stronger reason is it applicable to the case at bar, where the property levied on was an undivided half of a town lot; such an interest is not capable of any territorial subdivision by the sheriff; he had no right to select the one-fourth, or the one-eighth, or any other part of the ground and sell it as part of the undivided interest on which he had levied. He could not tell where, upon partition, the undivided half levied upon would be. If it be suggested that he might have sold the undivided half of the undivided half, or the undivided fourth of the undivided half, or the undivided third of the undivided half, the answer is, that he was called upon to exercise an official discretion under the statute. It is doubtful whether section 466, supra, embraces or authorizes any other division than a territorial division; it is doubtful whether the sheriff had any right to subdivide the interest levied on when he could not subdivide the land itself, or locate any part of it, and under such circumstances, the present complaint, which does not show any fraud, or bad faith, or abuse of discretion in the sheriff, but merely avers that the sale was “void because said sheriff did not offer said real estate in parcels,” when the lot might have been divided into four lots, eighteen feet front and rear by one hundred and forty-two feet deep, any one of which would have paid the execution and costs, is clearly insufficient; the sheriff had

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