LESSEE OF DANIEL V. EWING, 44 U. S. 707 (1845)

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U.S. Supreme Court

Lessee of Daniel v. Ewing, 44 U.S. 3 How. 707 707 (1845)

Lessee of Daniel v. Ewing

44 U.S. (3 How.) 707


A law of the State of Indiana directing

"That real and personal estate, taken in execution, shall sell for the best price the same will bring at public auction and outcry, except that the fee simple of real estate shall not be sold to satisfy any execution or executions, until the rents and profits for the term of seven years of such real estate shall have been first offered for sale at public auction and outcry, and if such rents and profits will not sell for a sum sufficient to satisfy such execution or executions, then the fee simple shall be sold"

is not merely directory to the sheriff, but restrictive of his power to sell the fee simple.

If he sells the fee simple without having previously offered the rents and profits, his deed is void.

The law of Indiana, passed after the execution was issued, also required that the property should be appraised. The sheriff's deed was not void because of there being no appraisement.

Page 44 U. S. 708

The facts were stated by an agreement in the nature of a special verdict, and were as follows:

"On the twenty-fifth day of December, eighteen hundred and thirty-eight, one Jacob Linzee was indebted to Daniel W. Gantly, of the City of New York, in the sum of nine hundred and nine dollars and eighty-two cents, and to secure the payment of the same, Linzee then executed to Gantly a mortgage on town lot numbered one hundred and seventy-nine in Peru, Indiana, of which Linzee was seized in fee. At the time of the execution of the mortgage, Linzee was in possession of the mortgaged premises, and they were worth from one thousand do fourteen hundred dollars. Linzee made default in the payment, and Gantly, on the eighth day of September, eighteen hundred and forty, obtained a decree in the state court to foreclose the mortgage, and unless the money should be paid in sixty days, an execution was directed to be issued for the sale of the premises."

"In January, eighteen hundred and forty-one, an execution was issued, and on the thirteenth of February following, before the sale of the property, the appraisement law passed, and was published the twenty-third day of February, eighteen hundred and forty-one; one the first of March, eighteen hundred and forty-one, the sheriff, having given due notice, sold the premises at public auction, to the defendants, for seventy-six dollars, and executed a deed to them for the same; which deed was offered in evidence to support the title of the defendants. The property was not valued, nor were the rents and profits offered for sale by the sheriff. And the court was asked to instruct the jury that as the rents and profits had not been offered nor the land valued, under the statutes of Indiana, the sheriff's deed was inoperative and void. And on this question the opinions of the judges were opposed, and on motion of plaintiff's counsel, the point is certified to the supreme court under the act of Congress. "

Page 44 U. S. 713

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