
    Jesse Johnson v. The State of Indiana ex rel. Joseph W. Stout, Auditor, etc.
    
      Sales by Auditor—Recorded Deed Must be Tendered.—Where an auditor sells a piece of land under a school mortgage, he must tender a deed, recorded in the record of the board of commissioners, to the purchaser, before he can sue for the purchase-money.
    Filed May 25, 1881.
    Appeal from Grant Circuit Court.
   Opinion of the court by

Mr. Justice Worden.

The auditor of Grant county sold a piece of land under a school mortgage, Jesse Johnson becoming the purchaser, at the sum of $2,000. Johnson having failed to pay the purchase-money, a deed was tendered to him, and the money demanded, and this action was brought against him to recover the money.

Johnson answered, among other things, as follows:

6th Par. For further answer Johnson avers, that the plaintiff did not cause said deed, referred to in plaintiff’s complaint, to be entered in the record of the board of commissioners of Grant county, in the State of Indiana, and recorded in said record, before a tender of the delivery of said deed was made by said auditor to this defendant. Defendant further says, that said deed never has been recorded in the commissioners’ record of said county. Wherefore,” etc.

A demurrer to this paragraph, for want of sufficient facts, was sustained, and exception taken.

Such further proceedings were had in the cause as that final judgment was rendered for the plaintiff.

Other persons were made parties, and other proceedings were had, not necessary to be noticed in this opinion.

The same point made on the demurrer arises on the evidence.

We are of opinion that the court erred in sustaining the demurrer.

The deed tendered was not recorded as provided for by law, and the defendant was not bound to accept it. The statute on the subject of such deeds, provides that “ upon full payment being made for such lands, the deeds thereof shall be executed by the county auditor, and shall be entered in the record of the board of county commissioners before delivery.” 1 R. S. 1876, p. 802, § 99.

But it is insisted that no tender of a deed at all was necessary before the right of action to recover the money was perfect.

We, however, do not see why the principle applied to sales by a sheriff, in this respect, should not apply to sales by auditors.

It is settled in respect to sheriff’s sales, that the payment of the purchase-money by the purchaser, and the execution of a deed by the sheriff, are concurrent acts, and that neither can proceed against the other without an offer to perform on his part. Williams v. Lines, 7 Blackf. 46; The State v. Lines, 4 Ind. 351. In the case last cited, the court said: The delivery of such deed, and the payment of the purchase-money, are to be concurrent acts. The vendee is not bound to part with his money until a deed for the premises is tendered.” But the appellee insists that the action will lie without the tender of a deed, inasmuch as the deed is to be executed only “ upon full payment being made,” etc.

The statute, we have seen, provides that upon full payment being made for such lands, 4he deeds thereof shall be executed,” etc.

But this, in our opinion, does not authorize a suit for the purchase-money without a tender, not absolute, but conditioned upon payment, of a deed for the property, recorded as the statute requires.

There may be an express or an implied waiver of such on the part of the purchaser, but nothing of that kind is shown in the pleadings in this case.

The decision in the case of The State v. Lines, supra, as to the necessity of a tender of a deed, was made under a statute quite similar to the one involved here in respect to the duty of the sheriff in executing the deed. The statute provided that “ Upon the sale of real estate or of any term not exceeding seven years, as above specified, by virtue of an execution, and the payment of the purchase-money, the officer selling such estate or term shall make and execute to the purchaser a deed of conveyance for the premises,” etc. R. S. 1843, p. 751, § 424.

The sheriff, it is thus seen, was not required to execute a deed except “upon the payment of the purchase-money.” The cases, indeed, are quite parallel.

Harvey & Brownlee, for appellant.

Bailey & Diltz, for appellee.

We have not examined any previous legislation upon the point. See, however, Hunt v. Gregg, 8 Blackf. 105.

The judgment below is reversed with costs, and the cause remanded for further proceedings, in accordance with this opinion.  