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Moore v. Moore et al.

instrument, so endorsed, to recover in his own name from the person who made the same.

The effect of these provisions is to vest in the endorsees of the instruments named therein, whether such instruments be technically negotiable by the law merchant or not, a complete legal title, as well as a right of recovery by endorsees in their own names, respectively.

Whatever right remains in the assignor of an instrument thus assignable, after the holder has transferred it by an unrestricted endorsement, must of necessity be of a purely equitable character. It is not perceived, therefore, why an innocent purchaser, who takes such an instrument by endorsement for value, and without notice of the latent equities of prior endorsers, may not stand upon the rule that where the equities are equal he is in the situation of advantage who holds the legal title. If one of two equally innocent parties must suffer, that one who, by his endorsement of the instrument, has conferred upon another the apparently absolute ownership of the paper must bear the loss. This doctrine ruled the case of Stoner v. Brown, 18 Ind. 464, which is not distinguishable in principle from the case before us. It is familiar law that if the owner, although induced thereto by fraud, invests another with the apparent legal title to chattels, in pursuance of a contract, the person so clothed may transfer an unimpeachable title to a good-faith purchaser. Parrish v. Thurston, 87 Ind. 437; Curme, etc., v. Rauh, 100 Ind. 247; Alexander v. Swackhamer, 105 Ind. 81 (55 Am. R. 180); Weaver v. Barden, 49 N. Y. 286; 1 Benjamin Sales, section 450.

We are unable to discover any good reason for a distinction in that regard between chattels and such instruments as may be assigned by endorsement, so as to give the assignee a complete legal title.

The more modern rule upon the subject under consideration seems to be, that where the owner of things in action, although not technically negotiable, has clothed another, to

Moore v. Moore et al.

whom they are delivered in the method common to all mercantile communities, with the usual apparent indicia of title, he will be estopped from setting up against a second assignee, to whom the securities have been transferred for value and without notice, that the title of the first assignee was not perfect and absolute. 2 Pomeroy Eq. Jur., section 710; Pomeroy Remedies, etc., section 161; Combes v. Chandler, 33 Ohio St. 178; McNeil v. Tenth Nat'l Bank, supra, and cases cited; Burton's Appeal, 93 Pa. St. 214; Wood's Appeal, 92 Pa. St. 379 (37 Am. R. 694).

The estoppel thus applied between assignors and assignees in no wise affects the right of the makers of such paper to set up any defences which the statute makes available to them. The purchaser of such paper can not affect the makers by an estoppel against any prior assignor as to any defences or equities between the original parties. Davis v. Bechstein, supra.

The authorities already cited cover every feature of the questions under consideration so fully that further discussion of the subject could add nothing to what has been there said.

The case of Carithers v. Stuart, 87 Ind. 424, although clearly distinguishable in its facts, recognizes the doctrine. and authorities which control our judgment in this case; nor is our conclusion here in any manner opposed by the case of Kastner v. Pibilinski, 96 Ind. 229, and the authorities upon which that judgment rests.

There was no error.
Filed Oct. 18, 1887.

The judgment is affirmed, with costs.

112 154

Johnson v. Murray, Administrator, et al.

115 146

116 543

120 548

112 154

126 118

126 219

112 154

147 155 112 154 151 22

No. 12,838.

JOHNSON v. MURRAY, ADMINISTRATOR, ET AL.

SHERIFF'S SALE.-Upon Writ Improvidently Issued.—Sale not Void.-A sale
of real estate under an alias writ is not void because the writ was
improvidently issued, without an order from the judgment plaintiff.
SAME.-Irregularity.-Not Available to Judgment Creditor to Defeat Consum-
mated Sale.-One who claims in the character of a judgment creditor
can not avail himself of a mere irregularity to defeat a consummated
sale.
QUIETING TITLE.-Complaint.-Relief of Different Character.-A complaint
to quiet title to land, upon a specific claim of absolute ownership, does
not entitle the plaintiff to relief of an entirely different character.

From the Grant Circuit Court.

G. W. Harvey and C. E. Shipley, for appellant.
I. Van Devanter and R. T. St. John, for appellees.

ELLIOTT, J.-The facts stated as the cause of action in the appellant's complaint are substantially these: The appellant and each of the appellees recovered judgments against John C. Harris and Noah Harris, on the 6th day of February, 1878. Executions were issued on these several judgments at the same time, were received by the sheriff at the same time, and were levied on the same land at the same time. There was no sale of the land levied on; the executions were returned by the sheriff, and immediately upon their return, alias writs were issued by the clerk upon returns made by the sheriff, until the number of writs reached five; on the fifth and last issue of the alias writs the land was sold. Each of the appellees, as judgment creditors, became purchasers, but paid no money on their respective bids, except the amount of the costs, the remainder being paid by crediting it upon the writs. The alias writs were issued without any order from the appellees. The appellant claims title and asks to have it quieted in him.

In the brief of appellant's counsel they say: "At least

Johnson v. Murray, Administrator, et al.

two questions are presented," and, as we understand them, the first question is, were the sales void because the writs issued subsequent to the original executions were not ordered by the several judgment plaintiffs?

We shall, in accordance with the settled rule, confine our discussion to the questions stated by counsel, and shall consider those questions in the order adopted by them.

It is conceded by counsel that, prior to the enactment of the fee and salary bill of 1879, the issuing of a writ by the clerk without the order of the judgment plaintiff was an irregularity which would not invalidate the sale, and which might be waived. Undoubtedly this was the law. Jones v. Carnahan, 63 Ind. 229; Richey v. Merritt, 108 Ind. 347. But counsel assert: "All this has been changed by the enactment of the statute." The provision upon which they rely was originally found in the fee and salary bill, but is also now incorporated in the code. Acts of 1879, p. 137; R. S. 1881, section 678. The provision to which they refer reads thus: "No execution shall, in any case, be issued in any cause, except on the written precipe of a party to such suit, his representatives or assigns, or of his attorney of record." This provision is little more than a declaration of the common law rule, and under that rule it was uniformly held, as counsel admit, that the issue of an execution without the authority of the plaintiff did not render the sale void. There is no reason why it should do so under the statute. Neither by expression nor by implication does the Legislature declare that the breach of duty on the part of the officer shall vitiate the sale. There is nothing that indicates an intention to break away from the long settled rule that such an irregularity will not make the sale void. It would be putting much into the statute that is not there to hold that it was meant to change the rule that had so long existed. The statute does no more than prescribe the duties of the officer; it does not enact that a failure to perform it shall avoid the sale. It was the officer's duty under the common law, as

Johnson v. Murray, Administrator, et al.

much as it is under the statute, not to issue an execution without the authority of the plaintiff, and there would be just as much reason for holding under that rule, as under the statute, that a failure of the officer to perform his duty made the writ void; and yet, without hesitation, it was always held that the writ was not void as against the execution plaintiff, or an innocent purchaser who bought at the sale made on such a writ.

The improvident issue of a writ does not render it void. Richey v. Merritt, supra. Freeman says: "A void writ is one which can have no force whatever, unless perhaps as a justification to an officer having no notice of its invalidity." Freeman Ex., section 73.

If the writ is not void it must be attacked directly, and not collaterally; at all events, it must be attacked prior to the acquisition of title by a sale made under it. Richey v. Merritt, supra. We think the irregularity in this instance is one falling within the general principle stated by Mr. Freeman in sections 339 and 340 of his work, and that it is not of such a character as to avoid the sale. It would, indeed, be an evil rule that would permit sales to be set aside after a long lapse of years because the clerk had issued alias writs without the direct authority of the judgment plaintiff, for such a rule would make titles insecure, destroy confidence in sheriff's sales, and injure the debtor, because it would make men unwilling to pay fair prices for property sold upon execution. The true and just rule is that recognized by the text-writers and by our decisions, and that is, where there is a mere improvident issue of the writ there must be a motion to quash it, or some such direct attack, and that a suit to quiet title after the sale has been perfected will be unavailing.

Another rule is decisively against the appellant, and that is this: One who claims in the character of a judgment creditor can not avail himself of a mere irregularity to defeat a consummated sale. It is, as a general rule, only the execution defendant who can avail himself of an irregularity, even

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