Ross v. Banta

*145On Petition for a Rehearing.

McCabe, C. J.

— A very earnest petition for a rehearing has been filed in this case, on the ground that we erred in holding that lot 6 sold for more than two-thirds of its appraised value, and that the appellee Banta was not entitled to any exemption.

These two points have been urged by appellee’s learned counsel in no less than ten briefs, and we have carefully read and considered all of them, containing nearly a hundred pages of printed and written matter.

In our original opinion, we set out what was found by the trial court'to have been the form of the appraisement. At another place in the special finding, the court stated that “said sheriff * * * , on September 28, 1889, sold at sheriff’s sale all the right, title and interest of said Guthrie and Banta in and to said lot 6, to the defendant Ross for the sum of $80, that being more than two-thirds of the appraised value of said lot, over and above the incumbrances thereon.’’

We treated this as a finding of fact in the original opinion, but counsel contends that it is not a finding of a fact, but a mere conclusion of law or fact, and mere surplusage.

He does not claim that it is a conclusion of law purely, but rather a conclusion of fact based on other facts found as to the appraisement, that is, that part of it which reads, “that being more than two-thirds of the appraised value of said lot over and above the incumbrances thereon. ’ ’

It is contended that if as a matter of fact and figures $80 is not more than two-thirds of the appraised value of the lot over and above the incumbrances as stated elsewhere in the finding, then the statement that it was *146more than two-thirds did not make it so as against the other statement. Assuming, without deciding, that this reasoning is correct, we think there is no inconsistency between the two parts of the finding mentioned. The appraisers valued the two lots at $1,500, lot 5 at $400, and lot 6 at $1,100, and stated that there are incumbrances on both of them jointly amounting to $1,100.

It is contended with much seeming earnestness, that no valid sale of either lot could take place unless it brought enough to equal two-thirds of the appraised value of both lots over and above the joint incumbrance of $1,100 resting on both; that would be two-thirds of $400, the excess of the appraised value of both over and above the joint incumbrance; that contention means simply this, because the incumbrance is joint the law has such a tender regard for the poor debtor that it will require the execution creditor to bid enough on his execution sale to pay for two lots and get but one.

The learned counsel in his elaborate briefs finally ran up against this proposition, and attempts to head it off by saying that the bidder must either bid enough on the one lot to buy both, or bid them both in for that sum. But we would like to know how the bidder at a sheriff’s sale can bid on a lot or piece of property that is not advertised or offered by the sheriff for sale. The finding shows that nothing but lot 6 was advertised or offered for sale by the sheriff. There is no law requiring a sheriff to levy on and sell more of the execution debt- or’s property than is needed to satisfy the execution in his hands, even though the property he offers for sale is jointly incumbered with other property of the execution debtor. On the contrary, the statute provides that: “If the estate shall consist of several lots, tracts and parcels, each shall be offered separately; and no more of any real estate shall be offered for sale than shall be neces*147sary to satisfy the execution.” 1 Bums R. S. 1894, section 768, R. S. 1881, section 756.

The rule in such a case can not be different from what it would be if the other property subject to the joint incumbrance did not belong to the execution debtor. So that there is no escape from the conclusion, if the appellee is right in his contention, that a purchaser of real estate at execution sale, which is jointly incumbered with another piece of real estate, must pay the price of both in order to make a valid purchase of one piece.

If there is any principle of law or equity that lends any sanction to such a doctrine, we have' not discovered it, and the learned counsel has not been able to cite us to it. He does, however, urge in support of the doctrine stated that the established rule in equity being that where several parcels of real estate incumbered by the same lien jointly in the hands of the owner, and separate parcels are sold and alienated at different times, the parcels must be exhausted 'in the satisfaction of the lien in the inverse order of their alienation, and if any separate parcel or parcels remain unsold, and owned by the debtor, that such portion must be first exhausted for the satisfaction of the joint lien before resort can be had to those parcels alienated, provided the purchaser does not become obligated to pay the lien. That is the rule in this State. Houston v. Houston, 67 Ind. 276; Bay v. Patterson, 18 Ind. 114; Williams v. Perry, 20 Ind. 437; Aiken v. Bruen, 21 Ind. 137; Alsop v. Hutchings, 25 Ind. 347; McShirley v. Birt, 44 Ind. 382; Hahn v. Behrman, Exr., 73 Ind. 120; McCullum v. Turpie, Admr., 32 Ind. 146; Merritt v. Richey, 97 Ind. 236.

It is insisted that under this rule the whole incumbrance of $1,100 can be forced onto lot 5, because the appellee retains the ownership of that lot, and thus the appellant will secure the title to lot 6, appraised at $1,100, for $80, *148which, would be less than two-thirds of its appraised value.

But the above rule in equity can not apply in the present case. The law provides that “no property shall be sold on execution * * for less than two-thirds of

the appraised cash value thereof, exclusive of liens and incumbrances, except where otherwise provided bylaw.” 1 Burns R. S. 1894, section 744, R. S. 1881, section 732. It was not otherwise provided by law as to the costs for the collection of which the sale was made on execution. Lot 6 could not have been sold on that execution for less than two-thirds of $1,100, the appraised value of the lot clear of the incumbrance. But it is only what remains of the appraised cash value, after deducting therefrom the liens and incumbrances, that forms the basis of ascertaining what is the two-thirds of the appraised cash value, for less than which such sales are forbidden. While the purchaser at such sales does not obligate himself personally to pay the incumbrance, he does consent that the property shall remain. liable primarily for the payment of the incumbrance. Indeed, the sale to him proceeds upon the theory that so much of the property in value as equals the amount of the incumbrance has been already conditionally sold to the lien-holder, and the purchaser at the sheriff's sale pays for the balance of the property, and thus acquires a right to hold and own it all (there being no redemption) if he will take care of and satisfy the liens and incumbrances. 1 Burns R. S. 1894, section 751, R. S. 1881, section 739. Equity will not allow him to hold the real estate and force the payment of the incumbrances onto the other property jointly liable in the hands of the original owner or anyone else.

But it is insisted that the appraisement was void because the appraisers did not apportion the 'incumbrances *149on the two lots and fix the amount each should be liable for. The appraisers had no power to do any such thing. Each lot was legally liable for the whole incumbrance, and nothing short of an agreement between parties interested could change that liability. It is further insisted that there was no appraisement because the appraisers failed to deduct the liens and incumbrances. The statute provides that: "They shall * * appraise the property according to its cash value at the time, deducting liens and incumbrances.” 1 Burns R. S. 1894, section 746, (R. S. 1881, section 733). This would require them to state its cash value at the time, and also to state the amount of liens and incumbrances, and lastly, to subtract or deduct the amount of such liens and incumbrances from the cash value. This last act, as to lot 6, they did not do; that is, they did not perform the complicated and difficult task of subtracting $1,100 from $1,100. They stated that the cash value of lot 6 was $1,100 and stated that the liens and incumbrances on it and another lot was $1,100. The sheriff and all others concerned in the sale seem to have understood that if $1,100 were deducted or subtracted from $1,100 nothing remains.

They all seem to have understood, and acted upon that understanding, that lot 6 was worth nothing over and above the incumbrances on it, and that understanding was correct in fact and in law. The irregularity of not deducting the $1,100 from the $1,100, if indeed it was an irregularity at all, is so slight that it ought not to vitiate the appraisement and sheriff’s sale unless it injured the complaining party. There is no claim even that it worked any injury to the appellee.

It is contended that we erred in holding that appellee was not entitled to $600 worth of property exempt from the execution in this case. We held that the judgment *150on which the execution was issued was for costs, and that it had been decided by this court that no exemption is allowable on such an execution, and also by the Appellate Court concerning the same refusal of exemption that the appellee was not entitled to any exemption on that execution. We followed those decisions, and still adhere to that holding.

It.is insisted that appellee was entitled to exemption because when he demanded it the sheriff set off to him as exempt lot 5 and his personal property, and that the sheriff and the purchaser are estopped to deny his right to such exemption. It is contended that these facts constitute an estoppel in pais and by record. The doctrine of estoppel in pais has no application where everything is equally known to both parties, or where the- party sought to be estopped was ignorant of the facts out of which his rights sprung, or where the other party was not influenced by the acts pleaded, as an estoppel. Fletcher v. Holmes, 25 Ind. 458; McGirr v. Sell, 60 Ind. 249; Long v. Anderson, 62 Ind. 537; Lash v. Rendell, 72 Ind. 475; Hosford v. Johnson, 74 Ind. 479.

In Fletcher v. Holmes, supra, this court, appropriating the language of the Supreme Court of New York, said: “A clear case of an admission by the defendant, intended to influence the conduct of the man with whom he was dealing, and actually leading him into a line of conduct which was prejudicial to his interests, unless the defendant be cut off from the power of retraction. This I understand to be the very definition of an estoppel in pais.”

Persons who set up acts of another as an estoppel must show that they acted on the same, and were influenced thereby to do some act which would work injury, if such other party is allowed to deny the truth of what he did. Chaplin v. Baker, 124 Ind. 385.

*151Here it does not appear that the appellee was in any way influenced by the act of the sheriff' in setting off to him lot 5 and his personal property as exempt from execution. It was nothing more than the expression of the sheriff’s opinion that the appellee was legally entitled to $600 worth of property exempt from that execution, and it has been held that an .expression of an opinion as to the rights of a party does not’ create an estoppel. Mitchell v. Fisher, 94 Ind. 108.

Besides, the special finding does not show that the appellant Ross had anything whatever to do with the sheriff’s act, and upon no principle of estoppel is he affected by it so as to preclude him from asserting and maintaining the legal rights he acquired by his purchase. There was, therefore, no estoppel in pais precluding the appellant from denying the legal right of appellee to exemption.

An eminent author says: “The law of estoppel is the law of rights conferred or fixed in one of three ways, namely, by record, by deed, or by facts in pais. The term ‘record’signifies, (1) the Legislature’s roll, (2) the judgment roll of a court of competent jurisdiction; ‘deed,’ a contract under seal.” Bigelow Estoppel (5th ed.), 3; Herman Estoppel, sections 1, 2.

It is very clear, from this definition, that there was no estoppel by record.

The act of the sheriff in setting off lot 5 and the personal property to appellee as exempt was not the act of a court, and the record of it was not the record of a court; but it was the act of a ministerial officer in the performance of a supposed ministerial duty.

Counsel finally entreat us to modify the mandate, if we overrule the petition for a rehearing, and order a new trial. It follows, from what we have said, that the petition must be overruled. And if we had any doubt as to the result of the new trial, or if we could not see *152clearly, from the record, that any other finding than the one in favor of the appellant Ross as to lot 6 could be legally made, we should not hesitate to change the mandate and order a new trial instead of the order, to restate the conclusions of law. It being apparent, from the record, that any finding against the appellant Ross as to lot 6 could not legally stand a new trial would be useless, therefore the request to modify the mandate is denied.

The original mandate was the reversal of the judgment, with directions to restate the conclusions of law as to lot 6, in accordance with the opinion and render judgment thereon in favor of appellant. That, of course, necessarily reversed the judgment against Ross for $106 and some cents, and the restatement of the conclusions of law required would leave no foundation for the money judgment against Ross to be again rendered.

The petition is overruled.

Filed Feb. 5, 1895.