Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1850-06-27
sUpREmE CoURr OF INDIANA.
MAY TERM ls5o

4
Biz in shanee,y by William Jones against Elijah Mitch
ELL John Richey aud John Thompson. The presents
the following facts.
On the 18th Of Augu.t 1885, said MtcheIl executed TO
Jones' the plsin sealed instrument binding himself for
ami in consider alton Of 700 dollars N hand paid convey
Jones' un the lst day Of September 1898 the entire title
IN fee simple part Of o, in the Of Geons-
buIgh, Decatur county, lndiana.
Ga the 29Ih Of July 1885, Mitchell had sold the
ground and conveyed it, in fee simple to jain Rchey for
the consideratin Of 500 dollars payable five
siamens evidenced by proissoy notes aud secured by
mortgage on the ground sold. The mortgage dnl,
corded Rchey paid the first Of said On the serond
Mitchell obtained judgment in his name which ju g
ment is till unsashsd. Richey made improvements the
ground Of at least 30 dollars in value.
On the 25h Of November, 1884, Mitchell assigned his
mortgage from Richey {" John Thompson an indemnify
10 him fo becoming suIrty for said Miichei 0f
over 500 dalars Sally Hnrd.
On the Sh 81 October 1894. Rhin hait Son obtained
judgment in the Deeatur court against Richoy.
On the 9th Of April 1899, the sheriff Of Decatur county
solt the part of bot ia question: by vfue oil execution
against Riehey the judgment Of Rhinehart s. Son
John Thompson, for five dollars and him deed
for the same and Thompson took possession
Thompson has paid about $50 dlars of Mitchell debt
to Sally Hu'd and TIE mortgage from Mitchell is security
to him for but 300 dollars, that being the value present
Of the ground covered by il.
After the rendition Of the judgment favor Of Rhneha
Son against Richey. he and Thompson verbally agreed
that the bagaiu between them for part of lot should
escinded, aud that Richey should e.conyey the
MITCHELL and the latter surrender the
to the former This agreement executed, and
amouDts to nothing
Mitchell and Riehey nsovent. Jones paid Mitch
fore filing this bill.
Upon these facts. JONES' the plaintiff prayed for general
relief
The decreed Thompson pay him 70 dol
LAS aud Ga cents that the equity Of redemption of Richey
and Mitchell should be foecIosed that Jones should
This decree cannot be upheld the bill sustained.
The bill cannot be supported for specific perform
snce because facts Mitchell
the rlsnif holas say obligations for lille.
SELF and convey 10 the plaintiff. No Of equi
ty eau compel Rchey lhompsn to convey land 10 Mich
an ia f.l61I
As against Mitchell, the plaintiffs only remedy
at law OH his bOnd and the court below to have
considered.
be sustained bill for the delivering up and
cancellation Of the mortgages; for this plantf has title
to the land ncumbered BY it, and procure none and
hence, has interest in IT, that will enable him ask il
to be cleared Of membranes.
cannot be upheld bill redeem said mortgage, for
the plaintiff has Iiyht e Interest, In H.. The mott.
gage assigned to him legally e9uitsbly.
Nor do think be sustained creditors bill.
Il Is true that Jones by paying The purchase money Mitch
ell Tor ground TO which he cannot get e is ia somesott,
MitcheIrs c,eitO but still this does fall within
those in which creditor has light 90 equity
subject equsbe interests The payment uf the debt due
him. See cited Shirley Shields 9Th Blackf
> ed Sc
Stewart v. Nunemaker. Error TO the Floyd c. C.
SMITH, y-ParoI evidence is admissible prove,
colaieraliy that, judgment of nonsuit wrongly
rendered by Justice OF the peace, when under the cir
cumsances, judgment upon the merits should have
been rendered
To scre acias issued by Justice of the peace against
Stewart, replevin bail for the stay of upon
judgment which Nunemaker had obtained against one
Bartholomew Stewart, by his plea, alleged that f. fa
issued the judgment and levied by the Mar
shall of the city New Albany amare the property
the execution defendant of sufficient value satisfy the
writ and that the levy had not been disposed Of To this
the plaintiff replied that the ken of the pos
session Of the Marshal by The Sheriff Of The county, by
virtue Of writ Of replevin ssed by one ST. Clair and
! that during the tendency Of the repevn suit while ou
OF the possossion Of the Marshal, and without the an
e OF the Marshal or Nunemaker, said mare died To thu
3 replication Stewart rejoned that 81. Clair, benre
the writ of reesin, gave bond, DC and that after
wards, in the repevn suit, said Marshalan Nuuemake
had de retorn0 that said return
ed pursuant said Judgment but died. by of the
neglect, abuse oSt CT air his agent whereby the
plevin bond became forfeited and The obgors therein
were liable to pay and able To pay said judgment in ia
vor of the pianttf The plaintiff sur-reoined tina,
had been instituted by him the repevn bond
that he obtained only judgment Tor costs and re-as
e serted that the died without the iaul. OF the Mar
shal or Nunemaker. Held That demurrer to the sur
>, rejoinder was improperly ruled.
A levy upon property of sufficient value, while III,
e property held by The officer presumed TO be salts
D faction Of the debt. Mcintosh Chew, Blackf 300
Il And this is the il the property be wasted de
soyed by the negligence of the officer. But if the los
be- the result of accident way chargeabe to thu
officer the plaintiff the officer is responsible,
would that the loss is borne by the defendant
= Starr " Moore, 3 Mclean 1854. But The officer is
. CURED ordinary diligence for the preservation
70 property taken in execution The State Nelson Nov
Dr. Term, lS49. II il is wTongfuly taken out Of his hand
" it, In this when the property was taken from TN
Marshal by writ of repievin, he could not tina
fact and take out execution Tor II not yet deter
mined that the replevin plaintiff had any right hav
possessun of IT, II indeed by the result of the
pevin suit he had not and the Marshal, having procure
Judgment for its return could have shown proPe
lie disposition of the levy by that such udgmen
had rendered but that ire property had been
of delivered him. II he voluntarily, collusvely sui
ID fered The property To be retained by the rplevin plain
= tiff after such Judgment, it injury To the execution
- defendant. So, in the suit upon the repevn hnnd,
his duty ordinary diligence 10 prope
judgment. These consequences necessarily result from
CT the principles above stated et levy oi sufficient pro
perry is presumed To be satisfaction of the debt until TIA
property is legally disposed of by the officer holding il
10 and that the use by e officer, OF ordinary diligence
preserve the properly levied upon, until IL proper
applied requisite show such legal disposition of IL.
The position assumed by the counsel i'r the defen
10 dans error that the pleading this so~s sha
due diligence used, and that the plaintiff had ex
hausted his remedies against 81. Clair would, probably
be right il Stewart bound by the Judgment on tf'
& repleyin bond. But he not party 10 tui suit,
he therefore, Inns righto so behind the Judgment
dered TO show tina, the loss occasoued By the neg
e, genes of 81 Clair and that the plaintiff ought 10 hav
recovered the value Of the property, and would hav
recovered by due prosecution of the suit. Upon th
point the thought 10 be analogous to suit by a
20 assignee against the assgnor of nore which the
% signor precuded by Judgment in favor of ih
" maker in former suit against him by the assignee, or
y showing that the valid aud the maker liable
o pay Howell Wilson, Blackc 49, Morris " Lu
20 cas- 3 h. g. Reversed Remanded with instructions
. the Circuit Court TO the demurrer, and for
n trial
~ Prhfic Snenki,.y