
    Potter v. Sumner.
    Pleading.—A mortgagee, where the mortgaged property lias been sold at' sheriff’s sale, upon a judgment fraudulently procured in favor of another person, may institute his action to set aside the sheriff’s sale, without, at the same time, suing for the foreclosure of his mortgage, and his mortgage', or a copy of it, need not, in such case, be filed with the complaint.
    APPEAL from the White Circuit Court.
   Hanna, J.

This was a proceeding to set aside a sheriff’s sale of lands. The complaint was filed by Sumner, a junior incumbrancer, and charges that Jones, one of the defendants below, sold said lands to one Walden, and took a mortgage to secure the purchase money, and afterwards obtained a judgment and decree of foreclosure thereon for, &c.; that after the purchase by Walden, and previous to the said foreclosure, said Walden and wife executed- a mortgage to secure the repayment of 1,000' dollars to said Sumner; that Walden appealed from said decree to the Supreme Court, during the pendancy of which said Potter purchased said land of said Walden, for 2,800 dollars; that by the terms of the contract of purchase,-he was, among other things, to pay said decree to Jones, and said Walden was to dismiss said appeal, which he did; and was to pay the debt of said Sumner, of which arrangement he was informed by said Potter and said Walden; that afterwards said Potter and Jones fraudulently combined to cheat said Sumner, and caused an order of sale to be issued, and said land sold thereon, from said decree, and said Potter became the purchaser at about 200 dollars, and claims to hold said land clear of said junior’s lien; although he had repeatedly represented to plaintiff that said decree was satisfied, and that he was to pay plaintiff’s debt. Prayer that the sale be set aside as fraudulent.

Demurrer to the complaint overruled.

H. W. Chase and J. A. Wilstach, for the appellant.

D. Mace and W. C. Wilson, for the appellee.

Two objections are taken to the complaint: 1st., that the mortgage to Sumner, or a copy of it, does not accompany the complaint. 2d., that he did not seek the proper remedy. It is insisted that the suit is founded on the mortgage, and the remedy sought should have been its foreclosure and a decree for the amount due thereon.

Evidently, it was the intention of the pleader, in the case at bar, to procure an order setting aside the sale. If it had been his purpose to obtain a judgment for the amount of his debt, and to foreclose his mortgage, he would have made the mortgagoraparty. This he did not do. He does not show that he desired a judgment for his -debt; but that he wanted to clear away certain proceedings and evidence of title, which he alleges were in fraud of'his 'security, which he held for the ultimate repayment of his claim. It is, perhaps, true, that unless he held a valid debt, &e., against Walden, he could not have proceeded in the manner he attempted. But it appears to us that-the purpose of the suit, the gist of the action, was to get rid of the effect of the alleged fraud, by which Potter was absorbing the property, which otherwise would be subject to the debts of Walden.

"Without doubt, in addition’to the amounts in this complaint and the remedy prayed, the complainant might have sought the collection of his debt, in the same proceeding. But we do not think he was obliged to do so, or fail in that for which he does ask relief.

Per Curiam.

The judgment is affirmed, with costs.  