On Petition fob a Rehearing.
Howard, J.In a very able and elaborate petition and brief.for rehearing, counsel for appellant endeavor to shield their client from the consequences of the fatal defect in the decree of the superior court. It is admitted that the court found the lien of the bank judgment to be superior to the lien of appellee’s mortgage, and it is contended that the court might therefore have decreed that lot three should be sold subject to the judgment, or at least might have decreed that the proceeds of the sale should be applied to the payment of the liens in the order of their priority; and reference is made to the order requiring that the Shelby county lands should be first sold before levying on lot three under the bank judgment, as showing the intention of the court that the sale of lot three under the decree should be made subject to the lien of the judgment. But we are not here concerned with what the court could have done, nor even with what the court intended to do, but only with what the court actually did.
Counsel go so far as to say that in the adjustment of the equities of the case the bank’s lien for taxes was made subordinate to its judgment lien. An examination of the record will not bear out this contention. The taxes due the bank were found by the court to be $2,-799.84, which sum the court expresslyjdeclared to be the “first and senior lien on said lots from one to seven,” *' * “and that of said sum the amount of lien on each lot *373is as follows:” * * “on lot three, $526.49,” * * “and said liens are hereby enforced, and said lots ordered to be sold to pay the same.”
As counsel say, the findings and decree of the superior court were exceedingly elaborate, full, and complete, even to excess, covering sixty-four pages of the record; and it would seem that the court took ample time and space to say what it intended to say. Finally, after ordering that all the land sold under the decree “be sold by the sheriff of said county of Marion, Indiana, as upon execution, said sale to be without any relief from valuation or appraisement laws,” the court next proceeds to decree the separate sale of the several tracts, ordering the proceeds applied in each case to the payment of liens as therein severally stated.
The decree for the sale of lot three is in the following words:
“And said sheriff shall next sell said lot number three (3), but of the proceeds of said sale, he shall first pay and satisfy the amount of the prior lien thereon in favor of the plaintiff, on account of taxes and street improvements or assessments paid by plaintiff, as herein found and adjudged; and the residue, or so much thereof as may be necessary, the said sheriff shall apply upon the said judgment rendered herein in favor of Thomas A. Hendricks against the defendant Delos Root.”
If, as counsel insist, there was a sufficient pleading to protect the bank’s judgment, it is very clear that no such pleading carried the finding of the court as to the superiority of the judgment lien into the decree and order of sale; for, as a matter of fact, as shown above in the words of that order of sale, no judgment on such finding was carried into the order of sale.
We have to look to what was done by the court, not to what might have been done. It is vain now to say that *374the court might do what is usual in such decrees, have ordered that the proceeds of sale be applied to the payment of the liens in the order of their seniority, or might have ordered the sale made subject to the lien of the bank’s judgment.
Filed May 19, 1893.The sufficient answer to this is, that the court did not do so. Counsel now admit that “the rights of all parties interested in lot 17 were fixed and established by the decree providing for its sale in the different parcels into which it had been subdivided, and the application of the proceeds of such sale.” To that we agree, and all par-" ties must abide by the result as made in the order of the court and carried out by the sheriff.
As to the actual equities of this result, we think they are as nearly harmonized as possible. Granting that the lot was worth $5,000, it stood to appellee, after paying the bank’s tax lien of $526.49, as netting $4,473.51. Appellee’s judgment was found to be $7,158.32; on this was applied the surplus of the purchase-price paid for the lot, $473.51, leaving yet due appellee, $2,201.30. After appellant sold the Shelby county lands, there remained due on her judgment $2,580.68. The net losses of appellant and appellee are therefore very nearly equal. So, whether we look to the wording of the decree and order of sale, and the proceedings that followed, or whether we confine our attention to the equitable results that followed, there seems no reason to change the opinion of the court already rendered.
The petition for a rehearing is overruled.