Statement of Facts.

the land, "together with all rights and privileges incident to mining and securing the minerals aforesaid, including the right of ingress and egress, and to dig, bore, mine, explore and occupy with constructions and buildings, as may be necessary and useful for the full development and enjoyment of the advantages of said coal and other minerals as aforesaid." The lessees were given "the right to remove all buildings or fixtures placed on said land when said agreement has been forfeited or may have expired;" and they were to pay fixed royalties for the articles mined and removed.

The answers of Helphenstine & Co., and of Hyatt, Levings & Co., averred that the property in question was personal property, situated fifteen miles distant from the court-house of the county, and was used in and about the operation of the mine under the mining contract.

Before the hearing the parties stipulated in writing, “that the plaintiffs are entitled to a decree as prayed for, unless the property sold should have been sold as personal property, as provided for by the statutes of the State of Indiana; that the sheriff's sale was made at the court-house door, in the city of Vincennes, in Knox County, and more than twelve miles from the property." The Circuit Court entered a decree, that, by virtue of their purchase, and the certificate thereof, the plaintiffs became the equitable owners, subject to the right of redemption, "of the real estate, fixtures, machinery, and chattels real," which the decree went on to describe; and of the right, title and interest of William Helphenstine & Co., being the residue of terms of years unexpired under certain mining leases of specified real estate, including that covered by the agree ment with the Buntings; that on said land and leaseholds were situate and sold, as aforesaid, to the plaintiffs, the chattels real before described as sold to them; and that the sheriff had levied on property which, at the time of the sale to the plaintiffs, was annexed to and constituted part of said real estate and chattels real, and was part of the property sold to the plaintiffs, and intended to sell it. The decree enjoined the defendants from selling the property so levied on. Subsequently the defendants moved to modify the decree by striking

Argument for Appellants.

out so much as enjoined the sheriff from selling the machinery, buildings, fixtures and improvements situate on the premises held under the agreement with the Buntings, because they were personal property when levied on under the execution of the plaintiffs, and the sale was void because they were not sold as personal property but as real property, and the plaintiffs acquired no title under the sale made at the court-house door. The motion was overruled. The defendants appealed to this court, setting forth, in their petition of appeal, that they appealed from that part of the decree which related to the machinery, buildings, fixtures and improvements situated on the Bunting premises and held under the Bunting agreement, on the ground that it was personal property and not real estate, and was not sold as personal property, in the presence of the officer making the sale.

Mr. Addison C. Harris, Mr. William H. Calkins and Mr. William Armstrong for appellants.-In Indiana, if the officer making a sale under execution, violates any requirement of the statute, the sale is void. And if the plaintiff is the purchaser he is chargeable with notice of all irregularities. Doe v. Collins, 1 Ind. 24; Hamilton v. Burch, 28 Ind. 233; Piel v. Brayer, 30 Ind. 332; Read v. Carter, 1 Blackford, 410; Davis v. Campbell, 12 Ind. 192; Lachley v. Cassell, 23 Ind. 600; Whishuand v. Small, 65 Ind. 120. If the interest of Helphenstine & Co. under the lease was real estate, we concede that the defendants in error acquired title by the sale. If it was not real estate, they acquired no title. The lease contains no words of inheritance. It simply gives a right of entry, to search for coal, to mine it if found, and to appropriate the produce on payment of the stipulated rent. The lessees acquired no property in the coal until its severance from the land. Knight v. Indiana Coal & Iron Co., 47 Ind. 105; McDowell v. Hendrix, 67 Ind. 513. In Indiana a leasehold is personal property. In 1821 the Supreme Court held that a term of years on the death of a lessee, passed to his personal representative. Duchane v. Goodtitle, 1 Blackford, 117. In 1842 it was decided that under an act authorizing an execution from a justice's court to become

Argument for Appellants.

a lien on personal property, a sale of a term of years by a constable was valid. Barr v. Doe, 6 Blackford, 335. In 1860 it was again decided that a lease for a term of years is personal property. Cade v. Brownlee, 15 Ind. 369. See also Meni v. Rathbone, 21 Ind. 454, decided in 1863; Smith v. Dodds, 35 Ind. 452, decided in 1871; and Schee v. Wiseman, 79 Ind. 389. The latter case related to a lease of a mining estate for a term of twenty years. The court say, "The leasehold estate was personal property." See also McCarty v. Burnett, 84 Ind. 22, 26, decided in 1882. So things set up for purposes of trade, under an agreement that they may be removed, are personal property. Cromie v. Hoover, 40 Ind. 49, 56; Young v. Baxter, 55 Ind. 188, 192; McCarty v. Burnett, 84 Ind. 22. It would seem to follow, without further discussion, that the mining fixtures in dispute were personal property, and that the sale of them as real estate was void. The answer made to this is: That the statutes of Indiana, then in force, regulating sales on execution, direct this class of personal property to be sold as real estate. If this is correct, and this leasehold was real estate, the owner was entitled to keep possession for one year with a right of redemption during that time. In construing a Michigan statute, similar to the Indiana law, in a case where a term of years had been sold on execution as real estate, the Supreme Court of that State said: "A sale on execution is designed to produce the best price which can be obtained; and a sale on condition that no title shall vest for fifteen months, would, under ordinary circumstances, render a lease nearly valueless, besides involving the danger of forfeiture. No bidder would give for the shortened term the value of the full term." v. Kenyon, 11 Mich. 249. A judgment lien is a creature of statute, and may be imposed upon personal property as well as real estate. Brown v. Clarke, 4 How. 4, 12. But when imposed, sale under execution must be made in accordance with the statutory regulations imposed on that class of property.Further reference is made to § 526 of the Code, which says, "The following real estate shall be liable to be sold on execution '5th all chattels real of the judgment debtor.'" But this does not enact that chattels real shall be

Buhl

Opinion of the Court.

advertised in the same manner and sold at the same place as real estate. It declares that terms of years were still subject to attachment and execution. This was re-enacting the law, before in force, by which they could be taken and sold under a common-law writ.

Mr. F. W. Viehe for appellees.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. He recited the facts as above stated, and continued:

The only question for decision is, by the stipulation of the parties, whether the property in question should have been sold in the manner in which personal property was required by the statute of Indiana to be sold.

The statute in force at the time, in regard to the sale of personal property on execution, 2 Rev. Stat. of Indiana, of 1852, part 2, ch. 1, act of June 18, 1852, art. 22, §§ 468, 469, vol. 2 of Davis' edition of 1876, p. 218, provided as follows: "Sec. 468. Previous notice of the time and place of the sale of any personal property on execution shall be given for ten days successively, by posting up written notices thereof in at least three of the most public places in the township where the sale is to be made. Sec. 469. Personal property shall not be sold unless the same shall be present and subject to the view of those attending the sale; and it shall be sold at public auction in such lots and parcels as shall be calculated to bring the highest price."

The Revised Statutes of Indiana, of 1852, in force at the time, in regard to the sale of real estate on execution, 2 Rev. Stat., part 2, ch. 1, act of June 18, 1852, vol. 2 of Davis' edition of 1876, provided as follows, Art. 24, § 526, p. 232: "Sec. 526. The following real estate shall be liable to all judgments and attachments, and to be sold on execution against the debtor owning the same, or for whose use the same is holden, viz.: First. All lands of the judgment debtor, whether in possession, reversion or remainder. Second. Lands fraudulently conveyed with intent to delay or defraud creditors. Third. All rights of redeeming mortgaged lands; also, all

Opinion of the Court.

lands held by virtue of any land-office certificate. Fourth. Lands, and any estate, or interest therein, holden by any one in trust for, or to the use of, another. Fifth. All chattels real of the judgment debtor." Art. 22, § 463, p. 215: "Sec. 463. The estate or interest of the judgment debtor in any real estate shall not be sold on execution, until the rents and profits thereof, for a term not exceeding seven years, shall have been first offered for sale at public auction; but, if the same shall not sell for a sum sufficient to satisfy the execution, then the estate or interest of the judgment debtor shall be sold by virtue of the execution." Art. 22, § 466, p. 217: "Sec. 466. Real estate, taken by virtue of any execution, shall be sold at public auction at the door of the court house of the county in which the same is situated; and, 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 necessary to satisfy the execution, unless the same is not susceptible of division." Art. 22, § 467, as amended February 2, 1855, p 217: "Sec. 467. The time and place of making sale of real estate, on execution, shall be publicly advertised by the sheriff, for at least twenty days, successively, next before the day of sale, by posting up written or printed notices thereof, in three public places in the township in which the real estate is situated, and a like advertisement at the door of the courthouse of the county; and also by advertising the same, for three weeks successively, in a newspaper printed nearest to the real estate, if any such newspaper be printed within the jurisdiction of the sheriff."

In the rules prescribed by the act, Art. 48, § 797, p. 313, vol. 2 of Davis' edition of 1876, for its construction, it is enacted, that such rules shall be observed, "when consistent with the context." Among those rules are these-that "the word 'land,' and the phrases 'real estate,' and 'real property,' include lands, tenements and hereditaments;" and that "the phase 'personal property' includes goods, chattels, evidences of debt, and things in action." But no definition or construction is given of the phrase "chattels real."

The Revised Statutes of Indiana, of 1843, act of February 11,