Frank A. Waltz and Alary M. Waltz, his wife, executed to.Henry Grotenkemper a mortgage on a piece of laud in Franklin county, Iud., on which- was a distillery.
Said Frank A. Waltz departed this life, leaving heirs. .His widow, Alary M. Waltz, was appointed his -administratrix. Said ‘mortgage became due, and was not paid. It was-foreclosed -and the property mortgaged was sold upou the decree of foreclosure, on th.e 6th day of April, 1875, by John. L. Case, sheriff of said Franklin county, to John Colter, as.agent for his wife, Isabella Colter, for whom he assumed to act. He was not in fact her agent.
-The complaint alleges that afterward, “on the 10thday of April, 1875, the defendant, said sheriff Case, for the purpose of inducing the plaintiff, said Isabella Colter, to accept the acts of said John Colter, and thus ratify the same, represented to her that the hog-pens situate' south-west, and .other valuable improvements and buildings south, of the still-house sold, which were used with and apparently a part of said establishment, were included in said sale ; that said pens and improvements constituted a large item of the value; that she had no knowdedge on the subject, but, relying on said representations, promised to take said property, and paid said sheriff, on said bid of five thousand dollars by her said husband, the sum of five hundred dollars; that said representations were untrue,” etc.; and she asks judgment for the five hundred dollars paid, etc. It was also averred in the complaint, that no written memorandum of the sale was made, etc.
The complaint contained a second paragraph for money had and received, etc.
*338Demurrers to the paragraphs of complaint were overruled.
Sheriff Case answered in two paragraphs :
1. The general denial;
2. An affirmative paragraph amounting to the general denial, to which a demurrer was sustained.
Crotenkemper was made a party. After a demurrer by him to the complaint was overruled, he answered “ by way of a cross complaint.”
Reply in denial.
Jury trial; verdict for the plaintiff as follows :
“ We, the jury, find for the plaintiff.
“ John Dore, Foreman.”
On motion, the court supplied the defect in the verdict, by assessing the damages at five hundred dollars.
The court overruled a motion for a new trial; also a motion in arrest of judgment.
The overruling and sustaining of demurrers, the overruling of the motions for a new trial and in arrest, and the assessment of the damages by the court, are assigned as errors.
1. The court did not err in its rulings upon demurrers ;
2. As to the assessment of damages by the court.
The amount of damages was not contested. A receipt for the five hundred dollars showed the amount paid the sheriff. The question of liability to repay that sum was the point contested. In such a case the judgment will not be reversed because the court assessed the damages. Medler v. Hiatt, 14 Ind. 405.
3. As to the representations of the sheriff' touching the property, we quote from Mulks v. Allen, 12 Wend. 253. That was a motion to set aside a sheriff’s sale. Savage, C. J., said:
“ In Lansing v. Quackenbush, 5 Cow. 38, this court re*339fused to correct the endorsement on the execution, when property had been sold which did not belong to the defendant, because a court of equity was deemed a more proper forum to grant relief; and in Vandenburgh v. Briggs, 7 Cow. 367, we refused to correct a mistake of the plaintiff’s agent on the ground that junior judgment creditors had acquired rights; but ixi The Ontario Bank v. Lansing, 2 Wend. 260, we vacated a sale where the plaintiffs had inadvertently bid a sum less than the amount intended to have been bid. This is a stronger case in favor of such a motion than either of the cases above referred to. Whether the defendant did or did not intend to mislead the plaintiffs’ executors and the deputy, there is no doubt that they were deceived by the representations he made.” The motion was sustained.
Under the code, a sale will be set aside where it would have been, either at law or in equity, prior to the code. The setting aside a sheriffs sale is made in the discretion .of the court. This case may be decided by the rules governing sales in such cases. Two grounds were alleged as rendering the sale, at least, voidable :
1. The want of a memorandum in writing ;
2. The misrepresentations of the sheriff' to appellee.
Waiving the question as to the existence of the first ground, the second was established. Mrs. Colter, as a- witness, swore to them. Other witnesses testified to the admissions of sheriff Case that he made them, and he did not deny the making of them, as a witness on the trial, but only testified that he did not recollect, and thought he did not make them. Heed v. Liven, 7 Ind. 189, is in point. See, also, Gregg v. Strange, 3 Ind. 366 ; Pennington v. Clifton, 10 Ind. 172 ; and Scarry v. Eldridge, 63 Ind. 44. If the contract were regarded as made by the sheriff as a private person, the representations were sufficient to avoid it.
1. One of the grounds, of the motion for a new trial *340was the admission of Mi’. Colter, the husband of the appellee, as a witness on the trial of the cause, over the objection of the opposite party. lie testified to material facts. He was not a party to the suit and had no interest in the subject-matter of it.
The statute in force at the. time enacted that husband and wife, should not be witnesses “as to matters for or against eacb other, or as to communications -made to each during marriage, except ” in cases of assault and battery. 2 R. S. 1876, p. 132. Under this statute the admission of said witness to give such testimony was error. This is a matter regulated by positive statute. See Scarry v. Eldridge, supra; Haskit v. Elliott, 58 Ind. 493.
The statute of 1879 is different on this point. It enacts that “ husband and wife as to communications made to each other during marriage shall not, in any case, he competent witnesses, unless, with the consent of the party making such confidential communications: Provided, That in suits by the husband for the seduction of the wife, the wife shall not he a competent, witness.” Acts 1879, p. 245.
The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.