Turner v. First National Bank of Madison. urged to the reading of the complaint, answer and reply, as above stated, it is evident that the appellants were not injured by the introduction of those papers in evidence. It was made to appear by the evidence that one Graham was the sheriff who sold the land in suit upon execution, and that one Comely became the purchaser; that Comely borrowed the money of the appellee with which to pay the purchase-money; that one Whitney, an officer of the bank, became the surety of Comely for the repayment of the money so borrowed; that Comely assigned his certificate of purchase to Whitney to indemnify him as such surety; that Comely made default in such repayment; that thereupon Whitney assigned the certificate of purchase to the appellee in payment, or to secure the payment, of the money borrowed by Comely; that afterward the appellee demanded, and received, a sheriff's deed from one Gavitt as the successor of Graham. The appellants contend that under all the circumstances disclosed by the evidence, the appellee was prohibited by the National Bank Act from accepting an assignment of the certificate of purchase, and from taking a deed to the land in controversy, and that hence the appellee derived no title from the sheriff's deed. We do not however construe the prohibition against the general power of National banks to acquire real estate as strictly as the doctrine contended for by the appellants would require us to construe it. A mere liberal construction is given to that prohibition by the Supreme Court of the United States in the case of National Bank v. Matthews, 98 U. S. 621; 2 Nat. Bank Cas. 12. Besides, the appellee received a conveyance to the land in discharge of a debt previously contracted, which is one of the methods by which a National bank is expressly authorized to acquire real estate. U. S. R. S., § 5137. The appellants, as a part of their defense, offered to prove that the certificate of purchase was assigned by Whitney to the appellee as collateral security merely for the debt owed by Comely, but the court would not permit the proffered proof to be made, and that ruling is also complained of by the appellants. Proof of an outstanding title in some third person will ordinarily defeat an action for the recovery of real estate, but in an ac Turner v. First National Bank of Madison. tion by a purchaser at sheriff's sale against the execution defendant, the latter is not, as a general rule, permitted to set up title in a third party as a defense against the purchaser's right to recover. Hobson v. Doe, 4 Blackf. 487; Sherry v. Denn, 8 id. 542; Calloway v. Doe, 1 id. 372; 3 Wait Act. and Def. 122, and authorities there cited. A sheriff's certificate is assignable, and the assignee stands in the place of, and becomes in legal effect, the purchaser at the sheriff's sale. Splahn v. Gillespie, 48 Ind. 397. The appellee was therefore the purchaser at sheriff's sale of the land of the appellants, within the meaning of the rule laid down as above. If however the proposed evidence had been admitted, it could at most have only shown that the appellee held the land described in the sheriff's certificate as the trustee of Comely, and this would not have defeated the appellee's right, as the holder of the legal title under the sheriff's deed, to recover the land thus held by the appellee. On the trial the appellee, as a part of its evidence in chief, offered the return made by Graham, as sheriff, to the execution oh which he sold the land. This return being objected to, was then withdrawn. Afterward the execution, with an amended return, was offered and admitted in evidence, over several objections urged by the appellants. The bill of exceptions contains the following statement as to the amendment of the return and its admission in evidence as amended: "And for the purpose of fully and properly presenting the question of the admissibility of said execution and said amended return upon said objections of the defendants thereto, it was agreed and admitted by the parties that the following facts were true and should be considered by the court in determining said questions, viz.: That said writ and original return thereto first offered to be given in evidence by plaintiff was filed in the clerk's office by James Graham, the then sheriff of said county, on the 26th day of April, 1875, and was by the clerk then recorded in execution docket 'G' therein, on page 147. That James Graham's term of office as sheriff expired in August, 1875, and that he has not been sheriff since, or in any other way since connected with Turner v. First National Bank of Madison. . the sheriff's office. That said amended return was made by him during the trial of this cause, and since the original return was offered in evidence by the plaintiff; that he so made said amended return at the request of Mr. Korbly, counsel for the plaintiff, by leave of court first obtained; that at the time he so made it, he was not the sheriff, or acting in any official capacity under the sanction of an oath, other than the oath he took as sheriff, his official oath; and the court taking into consideration all of said matters, so admitted, overruled said objections." The objections urged to the admission of the amended return are: 1st. That as the original return had become a matter of record, and as Graham's term of office had expired, the amendment was wholly unauthorized, whether made with or without leave of court. 2d. That the court in any event had no power to authorize an amendment of the original return after it had been entered of record without notice to all persons who might be affected by the proposed amendment. It may be regarded as well settled in practice in this State, that a sheriff may, by leave of the court, amend his return in a given case, so as to make it conform to the facts as they occurred, after his term of office has expired Dwiggins v. Cook, 71 Ind. 579. But it is not so well settled as to when, if ever, such leave of court can only be granted upon notice to the parties interested in the subject-matter of the return sought to be amended. Freeman Executions, § 358; Herman Executions, 398. The question as to whether this is a case in which notice ought to have been given of the application to the court for leave to amend the return is not raised by the record, and is hence not properly before us. The agreed statement of facts reserved no question as to the manner in which the court granted leave to make the amendment objected to, as nothing is said in that statement as to the circumstances under which the leave was obtained, and as no exception seems to have been reserved to the granting of the leave now complained of. For aught that appears, full notice of the application for leave may have been given, and we must assume that the court did not transcend its powers in granting the leave. At Turner v. First National Bank of Madison. the trial, in connection with the testimony of Graham concerning the sale of the land on execution, a receipt from Roberts, the relator in the judgment, to him as sheriff, for a sum of money derived from that sale and other sales on the same execution, was read in evidence over the objection of the appellants, and of that they will complain. That receipt appears to us to have been competent as a part of the res gesta. At all events, we are unable to see that the appellants were in any manner injured by its introduction in evidence. The court, in substance, instructed the jury that the judgment, execution, amended return and sheriff's deed were taken in connection with some other matters referred to, sufficient to make out a prima facie case for the appellee. The appellants argue that this was, in effect, taking the case away from the jury, and consequently wrong. It was the duty of the court to give a construction to the record and other written evidence in the cause; and as no valid objection has been shown to any of them, the instruction gave the judgment, execution, amended return and sheriff's deed the only construction which the court could have properly given them as evidence before the jury. The appellants also reserved exceptions to the third, fourth, fifth, sixth, seventh, eighth and ninth instructions given by the court at the request of counsel for the appellee, but no specific objection has been pointed out to any one of those instructions. The court also instructed the jury that the date of a deed is prima facie evidence of the date of its delivery, and in that we think the law was correctly stated as applicable to the subject to which the instruction related. Mrs. Turner's cross-complaint was not well sustained by the evidence. In relation to some of its most material averments the evidence was quite uncertain and unsatisfactory. We would not therefore be justified in holding that the verdict was not sustained by the evidence. Such a trust as that set up by Mrs. Turner cannot prevail against the face of the deed, unless it be fairly and clearly established by the evidence. Other questions have been either argued or suggested by the appellants, but what has been said practically disposes of all matters that have been fully presented and argued as reasons for the reversal of the judgment. Holmes v. Boyd. Error is also assigned upon the refusal of the court to arrest the judgment, but no argument has been submitted in support of that assignment of error. The judgment is affirmed, with costs. HOLMES V. BOYD. (90 Ind. 332.) Mortgage-foreclosure—who may bring suit. National banks-purchase of mortgage on lands. Contract- not to sue terest. consideration — payment of in Where a note secured by mortgage is purchased by a bank, and indorsed to its cashier, he may sue to foreclose in his own name, under the Code. A National bank, lawfully holding a mortgage on real estate, may, to protect its interests, purchase a prior mortgage on the same real estate. An agreement not to sue a promissory note which is due, in consideration of the agreement, by the purchaser of land mortgaged to secure it, to pay at the end of each year interest not exceeding the rate provided for by the note, is without consideration, and suit invalid. ROM the Boone Circuit Court. FROM P. H. Dutch, Davidson, Baker, J. W. Clements, O. P. Mahan, H. N. Spaan and F. Heiner, for appellants. G. W. Chapman and U. J. Hammond, for appellee. NIBLACK, C. J. Action by John M. Boyd, cashier of the First National Bank of Thorntown, for the use and benefit of that bank, against Ira N. Holmes and Amanda D. Holmes, his wife, Patrick H. Dutch and Mary A. Dutch his wife, and Charles A. Dryer, assignee in bankruptcy of the said Ira N. Holmes, and commenced on the 3d day of December, 1878. The complaint alleged that on the 1st day of January, 1869, the said Ira N. Holmes executed to one Armstrong Ross his promissory note for $3,000, payable on or before the 1st day of January, 1870, without relief from valuation laws, and with ten per cent interest |