This was a proceeding instituted by Lingcrman, an execution defendant, to set aside a sale of his land by the sheriff. The causes alleged are: First, that due notice was not given; second, that property was sacrificed, more sold than was necessary, &c.; third, that such representations were made by the officers as prevented bidding, and caused the land to sell for less than it otherwise would have brought; that said execution defendant was not present at the sale, and the purchaser was, and had notice of said representations. Prayer, that the sale be set aside.
A demurrer was overruled to the complaint, which presents the first point.
The representations made by the sheriff’ in private conversations, and by his deputy during the progress of the sale, were to the effect that the land would be sold subject to be redeemed in one year, under the law of 1861, *265since held inoperative. The evidence shows that because of said representations, persons were prevented from bidding, and that the land brought but about one-third of its fair value, and that a certificate was executed to the purchaser, under the redemption law. These facts appear to bring this part of the case within that of Ewald v. Coleman, 19 Ind. 66.
But it is urged that the complaint was bad for not averring an offer to repay the money bid upon said sale. The proceedings were instituted after the execution of a deed by the sheriff to the purchaser. "Where lands were purchased on execution, to which the execution defendant had no title, it has been held that the purchaser could recover the purchase money of the said defendant. Muir v. Craig, 3 Blackf. 293; 8 Blackf. 432; 9 Ind. 1; 10 id. 172; 15 id. 134. But it does not follow that the execution defendant, to get rid of an improper sale, should tender the money bid. Banks v. Bales, 16 Ind. 423. It is because of the wrongful act of persons other than said execution defendant that he should have said sale set aside. The purchaser was, in one sense, one of the parties to such act, and must take the consequences. We conclude, therefore, that the demurrer was rightly overruled.
The next point is made upon rulings in reference to the introduction of evidence. The court permitted the statements and representations of the sheriff' and his deputy, who had the writ, both before and at the time of the sale, to go in evidence, as to the title they would sell, whether absolute or conditional. This was objected to, especially as to such as preceded the sale. The court appears to have admitted said evidence, in connection with that showing the inadequacy of the price for which the property sold, upon the issue whether the sale was fair and valid. To the same effect were the rulings on instructions given and refused, and, therefore, we shall consider together the points raised upon both rulings.
We have already indicated, by what we have said in *266regard to the sufficiency of the complaint, that, in our opinion, such representations might well be shown to avoid a sale. It only remains for us to say, that when offered in connection with inadequacy of price, or other circumstances which might convince a court or jury that a fair and honest sale has not been had, such evidence should be received. We do not see anything in the rulings, cither upon the reception of evidence, or upon the question of charges to the jury, that, in this view, prejudiced the rights of the defendant.
We cannot, therefore, disturb the judgment of the court setting aside said sale.
The court rendered a judgment against the. execution defendant for the amount of purchase money, and interest, paid by the said Seller on his bid. His answer was a general denial. A cross-error is assigned upon this branch of the judgment. Could the court, in that proceeding, and under that issue, so adjudge? The verdict of the jury was general, for the plaintiff, Lingerman. It is apparent that this part of the judgment is outside of the issues, and, therefore, not authorized by anything that appears in the record, and, as to so much, should be reversed.
The judgment setting aside the sale is affirmed, hut as to the order or decree against Lingerman, for the payment of money, it is reversed, at the cost of appellant.