Ruckle et al. v. Barbour et al.

reference to the memorandum of the sales in the private book accounts of the marshal, which certainly was not that kind of written evidence of the contract of which Linthicum could avail himself, in order to avoid the operation of the statute of frauds. We place the decision upon the special return before mentioned."

But, without deciding whether a sufficient memorandum might be made by the sheriff in his private sale-book, we must hold the one made in the present case wholly insufficient to satisfy the statute of frauds, for the obvious and sufficient reason that it was not signed by the sheriff or by any person thereunto by him lawfully authorized. It is provided in the fifth subdivision of sec. 1 of our statute of frauds, 1 G. & H. 350, that the contracts enumerated in said section shall be incapable of enforcement, "unless the promise, contract or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized."

Browne Frauds, sec. 355, p. 368, says: "Whatever be the form of the memorandum, the statute requires that it be signed. Though it should be all written out with the party's own hand, there must still be a signature." The text is fully supported by the numerous cases cited in the notes.

It is also claimed by counsel for appellants, that the execution of the certificate of purchase satisfied the statute of frauds. It is confessedly true that when the certificate was issued, the purchase-money remained unpaid in fact, and the decree unsatisfied. The agreement of the bank and the holder of the prior lien to extend the time of payment of the purchasemoney could not affect the rights of the judgment debtor or his grantee. It is provided by the second section of the act of June 4th, 1861, that "upon payment of the purchasemoney the sheriff or other officer making such sale shall issue to the purchaser a certificate," etc.

The payment of the purchase-money constitutes a condition precedent to the power of the sheriff to issue a certificate of

'

Ruckle et al. v. Barbour et al.

purchase. It was held in Chapman v. Harwood, 8 Blackf. 82, that if the sheriff executed a deed without receiving the purchase-money, the deed would be void. It was held in Splahn v. Gillespie, post, p. 197, that a sale upon a satisfied judgment was a nullity, and vested no title in even an innocent purchaser. The certificate in the present case having been issued without the payment of the purchase-money was void, because the sheriff possessed no power to issue it. Conceding that the payment of the purchase-money and the execution of a certificate of purchase would satisfy the statute, the one issued in this case, being void, could not have that effect.

It is quite obvious that there was no such memorandum of the sale as is required by the statute of frauds. There was no payment of the purchase-money. The title of the judgment debtor was not divested, nor was the decree satisfied. It was held in Splahn v. Gillespie, supra, that when there was a valid judgment, execution, payment of the purchase-money, and a deed, the title of the judgment defendant would be divested, although there was no return made upon the execution. The ruling in that case was based, in part, upon the case of The State, ex rel. Wilber, v. Salyers, 19 Ind. 432, which is much relied upon by counsel for appellants. In that case, it was held that when a sheriff levies an execution upon real estate, and sells it for enough to pay the debt, receives the money, and makes the purchaser a deed, the judgment is extinguished, whether the sheriff make return to the execution or not, or though he make a false return. The ruling in that case proceeded upon the principle that a sale of real estate which is within the statute of frauds is not void, but voidable, and may be executed by the parties. The purchasc-money having been paid, the sheriff was authorized to make a deed, and the making of the deed took it out of the statute. When the appellees tendered to the sheriff and the bank the amount due upon the decree, the title was not divested, nor was the decree. extinguished. The sale being invalid, they had the undoubted right to pay the amount due upon the decree, of principal, interest, and costs. The appellees had become the owners, by

Ruckle et al. v. Barbour et al.

purchase from the mortgagor, of the equity of redemption, and as such had the clear and undoubted right to remove the incumbrance upon the land, and by such purchase they were subrogated to all the rights of the mortgagor. This is well settled by authority and on principle. Rardin v. Walpole, 38 Ind. 146.

But it is contended by counsel for appellants that the complaint was bad, because the appellees did not keep their tender good by paying the money into court. It was held in Lynch v. Jennings, 43 Ind. 276, that it was sufficient to allege that the party was ready, able, and prepared to pay whatever sum might be found due.

Having reached the conclusion that the sale was invalid, it is not necessary for us to decide whether the purchaser of the equity of redemption has the right to redeem under the act of June 4th, 1861, and we decide nothing in reference thereto.

It is further contended by counsel for appellants, that the failure of Yancy to pay the amount of his bid can not affect the validity of the sale, because a remedy is provided for such a case by secs. 476 and 477 of the code, 2 G. & H. 252. It is provided by sec. 476, that upon the failure of the purchaser to pay the purchase-money, the sheriff may, upon motion and notice, recover the amount bid, with interest and costs, and damages not exceeding ten per cent. The section referred to furnished no remedy in the present case, for it was held in Hunt v. Gregg, 8 Blackf. 105, and Hadden v. Johnson, 7 Ind. 394, that there could be no recovery under such section unless there was a memorandum of the sale, made at the time thereof, and sufficient to satisfy the statute of frauds, and we fully accord with such decisions.

Sec. 477 is as follows: "Or the sheriff may re-expose and sell the property, on the same or any subsequent day, according to law, and if the amount bid at the second sale shall not equal the amount bid at the first sale, and the costs of the second sale, the first purchaser shall be liable for the deficiency, and damages thereon, not exceeding ten per cent., and interest

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and costs, to be recovered by a like notice and motion as provided in the last section."

Inasmuch as the sheriff may re-expose and sell the property on the same day, he may require the immediate payment of the amount of the bid. In fact, all sales upon executions and orders of sale must be for cash. Chapman v. Harwood, supra. We think it may reasonably be inferred from the power to re-expose and sell at a subsequent day, that the sheriff may give reasonable time to the purchaser for the payment of the amount bid, but in such case he should, at the time of the sale, make upon the execution or decretal order a memorandum of the sale, sufficient to satisfy the statute of frauds. If the sheriff requires the immediate payment of the purchasemoney, and it is not paid, he may, on the same day, within the hours prescribed, without any further notice, re-expose and sell the property, and if he make a memorandum of the first sale, and the failure of the purchaser to pay his bid, he may pursue the remedy given by the above section to recover any deficiency which may accrue upon the second sale. Or if he make the proper memorandum, and give reasonable time for the payment of the purchase-money, and it is not paid, the rights of the parties are secured, and the remedy given may be pursued. We can not approve of the mode pursued by the sheriff in the present case. He did not require the prompt payment of the purchase-money, and, upon failure to pay, re-expose and sell the property, nor did he, when he gave time, in compliance. with the wishes of the plaintiff, fix and secure the rights of the parties by making the proper memorandum of the sale. But the matter stood in abeyance for nearly twelve months, during which time the sheriff had no power to compel the payment of the purchase-money, nor had the purchaser the right to compel the sheriff to make a return and execute a certificate of purchase. The parties might have completed the sale, but neither could be compelled to do so.

While matters stood in this condition, the appellees, having become the owners of the equity of redemption in the mortgaged property, had the undoubted right to pay and satisfy the

The Fort Wayne, etc., R. R. Co. v. Mussetter.

decree, and thus remove the incumbrance from their property. We are very clearly of the opinion, that the court committed no error in overruling the demurrers to the complaint, or in sustaining them to the answer.

As the appellants permitted judgment to be rendered on demurrer, no motion for a new trial was necessary; and as there was no evidence in the cause, no question is presented as to the action of the court in overruling the motion for a new trial.

The judgment is affirmed, with costs.

THE FORT WAYNE, MUNCIE, AND CINCINNATI R. R. Co. v. MUSSETTER.

RAILROAD.-Killing Animal.-Pleading.-Fence.-In an action against a railroad company for the killing of a cow by the defendant, the complaint alleged that the track at the point where said cow entered upon the same and was killed was not "securely fenced in, and said fence maintained by said company or any other person at its special instance and request." Held, that the complaint was good. The addition of the words, "or any other person at its special instance and request," did not create the implication that the road was fenced in by some person not at the instance and request of the company, which was a matter of defence to be specially pleaded by the defendant.

Held, also, that it was not necessary to allege in such complaint, that the defendant was bound to fence the road at the point where the cow came upon the track and was killed.

From the Blackford Circuit Court.

W. H. Coombs, W. H. H. Miller, and R. C. Bell, for appellant.

BUSKIRK, C. J.-This was an action by the appellee, to recover the value of a cow alleged to have been killed by the engine and cars of appellant. It was a proceeding under the statute and originated before a justice of the peace, where there was judgment for the appellee; and on appeal to the circuit court, the appellee again had judgment.