Insurance Company v. Hallock

ERROR to the Circuit Court for the District of Indiana; the case being thus:

In Indiana the distinction between proceedings in common law and chancery is abolished, and under their code one form of action only, the 'civil action,' is known. This code provides as follows:

'Sect. 407. When a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced by execution.'

'Sect. 409. The execution must issue in the name of the State, and be directed to the sheriff of the county, sealed with the seal, and attested by the clerk of the court.'

The proceedings to foreclose a mortgage are the same as in other actions, except that when there is no express agreement in the mortgage, nor any separate instrument, for the payment of the sum secured thereby, the remedy of the mortgagee shall be confined to the property mortgaged, and in that case the judgment of foreclosure shall order the mortgaged premises to be sold, or so much thereof as will satisfy the judgment. If there is a promise in the mortgage, or in a separate instrument, to pay the sum secured, the court shall direct in the order of sale that any balance which may remain unsatisfied after the sale of the mortgaged premises, shall be levied of any other property of the mortgage debtor.

Section 635 is thus:

'A copy of the order of sale, and judgment, shall be issued and certified by the clerk, under the seal of the court, to the sheriff, who shall thereupon proceed to sell the mortgaged premises, r so much thereof as may be necessary to satisfy the judgment, interest, and costs, as upon execution; and if any part of the judgment, interest, and costs, remain unsatisfied, the sheriff shall forthwith proceed to levy the residue of the other property of the defendant.'

With these provisions of the code in force, the AEtna Insurance Company, brought suit against Hallock and others, to try the title to land. The defendants had possession, claiming under a judicial sale in proceedings to foreclose a mortgage. It was admitted that the plaintiffs below had the legal title to the land in controversy, unless it had been divested by those proceedings.

On the trial the defendant having introduced a transcript of the record of the proceedings under which they claimed title from the Court of Common Pleas of Vanderburgh County, 'the plaintiffs then offered in evidence the original order of sale issued to the sheriff on the decree of foreclosure, and upon which order of sale the sheriff sold to the defendant in the case the premises in controversy, which order of sale appeared, on inspection thereof, not to have been issued under the seal of said Court of Common Pleas of Vanderburgh County, and not to have had the seal of said court impressed thereon, or in any manner annexed thereto. . . . And the court, because the said order of sale was not issued under the seal of the said Court of Common Pleas of Vanderburgh County, did find for plaintiffs, to which finding of the court the defendants at the time excepted.' Judgment having been given accordingly, the question now before this court was the correctness of the decision so made.

Mr. R. M. Corwine, for the plaintiff in error:

Did the omission to use the seal of the court make the order void, or was it avoidable merely? The general rule in judicial sales is, that the purchaser is not bound to look beyond the 'judgment, levy, and sale.' All other steps (such as the issuing of an execution after a year and a day without a revivor) are merely directory to the officer. As between the parties to the process, or their privies, the return is usually conclusive, and not liable to be collaterally impeached. In Sowle v. Champion, in the Supreme Court of Indiana, it was held that an order of sale, issued on a decree of foreclosure, which did not set out a copy of the decree, was informal, under the statute, but was not void, and if not set aside on the defendants' motion, that all acts done under it were valid. Yet the direction of the code, 'that a copy of the order of sale and judgment shall be issued,' is as stringent and mandatory as that other direction, that it 'shall be issued and certified by the clerk under the seal of the court,' &c. If the one is merely directory, the other is so also.

Messrs. Hughes, Denvers, and Peck, contra.

Mr. Justice MILLER delivered the opinion of the court.