Opinion on Petition for a Rehearing.
Dailey, J.Counsel for appellees earnestly insist that there should be a rehearing in this cause, for the reason that the court erred in ruling that the record shows that the sheriff who made the sale of the real estate in controversy did not have the rents and profits appraised prior to such sale.
They further say: “It is true that the record shows that the sheriff attached to his return what purported to be an appraisement of the real estate, and the schedule signed by the appraisers makes no mention of any appraisement of the rents and profits. But such appraisement is no part of the return, and, if it were, is no evidence that the rents and profits were not appraised.”
In support of this contention they cite Coan v. Elliott, 101 Ind. 275.
We are now asked by the learned counsel to construe the record in this case as if it were wholly silent upon *698the question whether there was or was not an appraisement of the rents and profits, and to find, this being so, that there is nothing to rebut the presumption that the land was appraised.
Counsel say: “All that a purchaser, who relies upon a sheriff’s deed, need do in order to show a valid title to real estate, is to prove a valid judgment against the owner, an execution thereon, and a sheriff’s deed pursuant thereto.”
To uphold this doctrine, they cite Mercer v. Doe on Demise, 6 Ind. 80; Hall v. Craig, 125 Ind. 523 (527).
Our attention is also called to 2 Freeman on Executions (4th ed.), section 339, p. 1139, declaring that “the presumption is and continues until overcome by affirmative proof, that the sheriff did his duty in all respects.”
Several other authorities are cited sustaining the same rule.
It is clearly the law that courts indulge this presumption when the record is silent as to what he did in the matter under consideration. But appellees are confronted, in this case, with a singular condition of affairs.
Among other points made by the appellant in his original„brief, filed December 16, 1891, nearly two years before the decision was rendered, is the following: “There is one other consideration: The judgment of Phillips against Joseph E. Milburn was not without relief from valuation or appraisement laws. The sheriff had the lands appraised, but did not have the rents and profits of the land appraised. He offered the rents and profits, and receiving no bid, offered the fee-simple. For this reason the sheriff’s sale is invalid and should be set aside.”
In support of this contention, appellant cited: R. S. 1881, section 754; Davis v. Campbell, 12 Ind. 192; In*699diana, etc., R. W. Co. v. Bradley, 15 Ind. 23; Tyler v. Wilkerson, 27 Ind. 450.
In response to this, appellees, on April 20, 1892, in their only brief, except on petition for rehearing, say: “Appellant admits that the land was appraised, but finds fault that the rents and profits were not appraised. In answer to this we can only say that the rents and profits were not sold, therefore no injury occurred to the appellant, or any one else, even if it was necessary to appraise the rents and profits, which, we think, was not necessary in this action.”
To maintain this theory counsel cited: R. S. 1881, section 743; Mugge v. Helgemeier, 81 Ind. 120 (124).
It thus appears that appellant made a clear and concise statement, in his brief, challenging the record and asserting that the rents and profits were not appraised prior to the sale of the real estate sought to be recovered in this action. This fact appellees admit to be true, but ássert that as the rents and profits were not sold no injury was sustained by appellant.
Counsel having made this concession, the court relied upon it as true.
Rule 26 of this court provides that “If a statement of fact is made by counsel, and not questioned or explained by opposing counsel, it will be deemed by the court to be accurate.”
Elliott’s Appellate Procedure, note 1, p. 373, says: “This provision does no more thán give expression to a general doctrine that has long prevailed.”
In section 443 of this valuable work, he uses this language: “The presumption is that facts stated in the brief of counsel are correctly stated and that the record is truthfully represented. As it has been said, 'counsel’s statement of the facts is a certificate of fairness and accuracy,’ and the courts will assume, in the absence of *700a countervailing showing, that the facts are fairly stated and that there is neither intentional wrong nor innocent mistake. It is, therefore, incumbent upon counsel who believe that the facts are incorrectly stated, or the record not accurately represented, to contradict or explain the statements of their opponents. If they do not make the necessary corrections or explanations the court will accept that made by their adversaries as true and accurate'.
Filed Feb. 16, 1894.In view of the admissions made by counsel as to the condition of the record, the petition for rehearing is overruled.