author: Trumbull, J. Separate opinion of Catón, J.

text:
    William H. Ralston, Plaintiff in Error, v. John Hughes, Defendant in Error.
    ERROR TO ADAMS.
    The Circuit Court of any county, by virtue of its general chancery jurisdiction, can enter a decree affecting real estate situated in any part of the State; provided part of the land to be affected lies in the county where the suit is instituted, and that the greater part of such land does not lie in any other county. ( Catón, J., holds the decree valid over the land within the county of jurisdiction.)
    That provision of the statute, which declares that suits in equity shall he commenced, if they affect real estate, in the county where the estate or a greater part thereof shall be situated, being a restriction upon the general powers conferred on the circuit courts, can have no application to cases not embraced within it.
    The owner of an equity of redemption, until the mortgagee takes possession of the land, for condition broken, is to be considered the owner of the land, and liable for the payment of taxes thereon; and he cannot acquire a title by becoming a purchaser of the land at a sale for those taxes; such a purchase is considered as hut another mode of paying those taxes.
    This was an action of ejectment, in which the plaintiff in this court was the plaintiff below, brought to recover the possession of the north-west quarter of section 35, in township 1, south of the base line in township 7, west of the 4th principal meridian. The parties dispensed with a jury, and a trial was had before the court. The'judgment was for the defendant.
    It appears, from the bill of exceptions, which contains all of the evidence in the case, that upon the trial in the court below, the plaintiff, for the purpose of proving that the defendant claimed title from the same person he did, gave in evidence a general warranty-deed, containing covenants of seizin and against incumbrance for the land in question from one Hans Patten to one Robert Tillson, bearing date April 21, A. D. 1836, and a like deed for the same land from said Tillson to said defendant, John Hughes, bearing date March 15th, 1841.
    The defendant then admitted to the court, as evidence for the plaintiff, that he went into the possession of the premises in question under and in pursuance of the aforesaid deed from the said Tillson to him at the time of the date thereof, and that he had ever since, up to the time of the trial, continued in the possession of the same, under and in pursuance of said deed.
    The plaintiff then gave in evidence the record of a suit in chancery in the said county of Adams, disposed of at the September term thereof, A. D. 1844, wherein one Samuel A. Morse was complainant, and the aforesaid Hans Patten, Robert Till-son, and said defendant, John Hughes, together with William Patten, Anthony Cannon, Madison Hendricks, E. Haskins, Abraham Cooley, Peter Cox, Clement Pierce, John Miller, and the unknown hens of David Kehr, deceased, were defendants.
    The object of said chancery suit was to foreclose a mortgage executed by said Hans Patten to said Samuel A. Morse, and procure a sale of the premises therein mentioned, among which was the land in question. The bill, as said record shows, was filed on the 13th of February, 1844, and alleges, among other things, that on the 21st of April, 1836, said Hans Patten executed and delivered to said complainant, Samuel A. Morse, a mortgage upon thirteen quarter sections of land, to secure the payment of $1,600 by said Patten to said Morse; that twelve of said quarter sections were in Illinois, and one in Missouri; that those in Illinois were situate as follows: three in Warren county, three in Calhoun county, and one in each of the counties of Mercer, Stark, Knox, Hancock, Pike, and Adams. The bill then alleges sundry conveyances of the respective quarters therein mentioned, and among others the aforesaid conveyance of the said quarter situate in Adams, (and which is the one for which this suit was brought,) from said Hans Patten to said Robert Tillson, and said conveyance from said Tillson to said defendant, Hughes; that said last-mentioned two conveyances were made subsequent to said mortgage; and that said Tillson and Hughes, each, at the time of the respective conveyances to them, had notice of the same. The bill further alleges that said Hans Patten, Robert Tillson, John Hughes, and William Patten, were residents of said Adams county. The bill did not allege how many acres of land either of said quarter sections contained, nor that the greater part of the land mentioned in it was situate in said Adams county, nor that the greater part of the same was situate in any of said counties. Nor did it allege where any of the defendants, except the four last above named, resided.
    The said record further shows, that at the same time the said bill was filed, the complainant filed an affidavit, showing that Anthony Cannon, Madison Hendricks, E. Haskins, Abraham Cooley, Peter Cox, Clement Pierce, John Miller, and the unknown heirs of said David Kehr, deceased, upon close inquiry, could not be found in said State; that on the same day a summons, in the usual form, was issued' in said cause by the clerk of said court, against all of the defendants, directed to the sheriff of said Adams county; that said summons was returned by said sheriff, March 18th, 1844, served upon said Tillson, the two Pattons, and said Hughes, March 6th, 1844, and not found as to the rest of said defendants; that a notice of the pendency of said suit, in the usual form, was published, according to law, prior to the commencement of the April term of said court, A. D. 1844; that at the April term of said court, 1844, none of the defendants appearing, the bill was taken for confessed by them ; and that at the same term said court rendered a decree of foreclosure and sale, as to the lands in Illinois, in the usual form, and directed that the master in chancery of said county make said sale, and convey the premises sold to the purchaser. The said record further shows, that on the 29th of July, 1844, said master filed a report of sale, stating, among other things, that he had sold all of the lands in said decree mentioned, and all of the right, title, and interest of the defendants therein, to said plaintiff, William H. Ralston, for $930; that said sale was made on the 25th of July, 1844, and that he had by deed, as such master, conveyed all of said lands, &e., to said Ralston. (Accompanying said report, and as a part of it, was a copy of said deed.) Said record further shows, that at the October term of said court, 1844, said report was approved and confirmed, and that the court thereupon made a decree of investiture, in the usual form. The plaintiff then gave in evidence a deed, made under and in pursuance of said decree and sale, from the master in chancery of said Adams county to him, for, among others, the land in question, and the interest and title of the defendants in said chancery suit therein, bearing date July 29th, 1844. The foregoing was all the evidence on the part of the plaintiff.
    The defendant then offered in evidence a record of a judgment of said court, rendered at the April term thereof, A. D. 1841, from the records of said court; also the process for the sale of lands delinquent for the taxes of 1840, in said county of Adams, and the return thereon; and also a deed from the sheriff of said county to the aforesaid Robert Tillson, for the premises in question ; to the admission of each and every of which the bill of exceptions shows that the plaintiff objected, but that the court overruled the objection and admitted them in evidence, to which the defendant excepted. And this was all the evidence on the part of the defendant.
    Upon the foregoing evidence, the court found the issue for the defendant. Whereupon the plaintiff entered his motion to set aside said finding, and for a new trial.
    The cause was heard before O. C. Skinner, J., at November term, 1851.

      The following are the errors assigned:
    1. That the court erred in admitting in evidence the said record of said tax judgment, and said process, return, and tax deed, offered in evidence by the defendant.
    2. That said court erred in finding the issue aforesaid in favor of the defendant.
    3. That said court erred in overruling the said motion of said plaintiff to set aside the finding of the court, and for a new trial.
    4. That said court erred in rendering the judgment aforesaid in favor of said defendant.
    A. Wheat, for plaintiff in error.
    Williams & Lawrence and Browning & Bushnell, for defendant in error.
   Trumbull, J.

Two questions arise upon this record: 1. Had the Circuit Court of Adams county jurisdiction to enter the decree of foreclosure offered in evidence ?

2. Could the defendant avail himself of the tax title ?

The statute confers upon the judges of the circuit courts, in their respective circuits, “ jurisdiction over all matters and suits at common law and in chancery, arising in each of the counties in their respective circuits, where the debt or demand shall exceed twenty dollars,” and authorizes said courts, in term time, and the judges thereof in vacation, to award throughout the State, and returnable in the proper county, writs of injunction, ne exeat, habeas corpus, and all other writs and process that may be necessary to the due execution of the powers with which they are or may be vested. Rev. St. chap, 29, §§ 29,30. See also the case of Kenney v. Greer, decided at the present term, (ante, 432.)

The record offered in evidence was a transcript of the proceedings in a suit to foreclose a mortgage upon twelve quarter sections of land, situated in eight different counties of this State, one of the quarter sections being in the county of Adams, where the suit was brought, three in the county of Calhoun, three in the county of Warren, and one in each of five other counties. All of the defendants, except those to whom notice was given by publication as non-residents of the State, were served with process in* Adams county, and the action was rightly commenced in that county, if a suit to foreclose a mortgage can be regarded as a personal action, as some courts have held. Broome v. Beers, 6 Conn. 198; Palmer v. Mead, 7 Ib. 156; Buckenridge v. Ormsby, 1 J. J. Marsh. 256; Owings v. Beall, 3 Littell, 107.

But, treating a bill to foreclose a mortgage as a suit affecting real estate and local in its character, and we are still of the opinion that the Circuit Court of Adams county had jurisdiction of the case. It undoubtedly had jurisdiction over the land situated in Adams county; and having jurisdiction over part of the subject-matter of the suit, with authority under the statute to send its process into any county in the State necessary to a due execution of its powers, it drew to it jurisdiction over the other lands situated in other counties, upon the principle that when part of a case is within the jurisdiction of a court of equity, it will take cognizance of the whole case, for the purpose of doing complete justice by embracing the whole subject, deciding upon and settling the rights of all persons interested in the subject-matter of the suit, and preventing future litigation. The same objection interposed to the jurisdiction of the Adams Circuit Court, could have been made to that of the Circuit Court of any other county where the suit could have been brought, and the consequence is, if the objection be valid, that in foreclosing a mortgage upon different tracts of land situated in different counties and where the greater part does not lie in any one county, there would have to be as many separate suits as there were tracts of land lying in different counties. The very case now under consideration affords a fit illustration of the inconvenience, delay, and expense which must necessarily result from the prosecution of a separate suit in each county wherein any part of the mortgaged premises are situated. To have foreclosed this mortgage, unless the Circuit Court of some one county had jurisdiction of the -whole matter, would have required eight separate suits in as many different counties; and it is not impossible that cases might arise affecting real estate in different counties so circumstanced, that justice could not be done without bringing the whole matter before the court in one suit. It could never have been the intention of the legislature that the jurisdiction should be divided. We conclude, therefore, that the Circuit Court of any county, by virtue of its general chancery jurisdiction, has authority to entertain suits affecting real estate situated in any part of the State, provided part of the land to be affected lies in the county where the suit is instituted, and that the greater part does not lie in any other county.

The provision of the statute, (Rev. Stat. ch. 21, § 2,) which declares that a suit in equity shall be commenced if it “ may affect real estate in the county where the same or the greater part thereof shall be situated,” has no application to a case like the one under consideration, for the reason that the greater part of the lands to be affected by the decree do not lie in any one county. Such would be the case if the quantity of real estate which might be affected by the decree was the same in different counties. The consequence is, that there must be numerous cases of which no court can entertain jurisdiction under the provisions of the statute last referred to. It must, therefore, be regarded as applying only to cases within its purview; that is, to cases which may affect real estate, where the same or the greater part thereof is situated in some one county. Of spch a case, the Circuit Court of any other county than the one where the greater part of the land was situated, would have no jurisdiction; but this provision of the statute being a restriction upon the general powers conferred on the Circuit Courts by other provisions of law, can have no application to cases not embraced within it.

The objections to the form of the decree have no foundation in the record. When carefully examined, it will be seen that the decree directs the money to be paid “ to the master in chancery of said county.” “ Said county ” here manifestly has reference to the county of Adams, where the court was then sitting, for up to this time the name of no county appears in the decree ; afterwards comes a description of the lands and the names of the various counties in which they are situated; then follows the direction that the sale be made by the Master in Chancery of said county: ” the very same words that had been used in referring to the master in the forepart of the decree, and clearly referring to the same master. But if this were not so, the defect, if any, would be cured by the subsequent decree of the court approving the sale made by the Master in Chancery of Adams county.

,The remaining question relates to the tax-title set up by the defendant.

The record shows that the premises were purchased by Tillson for taxes which accrued while he was in the actual possession of the same, and the owner of the equity of redemption by purchase from Patten, the original mortgagor. Occupying that position, it was his duty to have paid the taxes; and it would be iniquitous to allow him, or his grantee, Hughes, to set up a tax-title acquired under such circumstances, to defeat the title of the mortgagee or those claiming under him. Choteau v. Jones, 11 Ill. 322; Frye v. Bank of Illinois, Id. 383; Voris v. Thomas, 12 Ill. 442.

The judgment of the Circuit Court is reversed, and the cause remanded.

Judgment reversed.

Separate opinion of Catón, J.

This was an action of ejectment, brought for the recovery of a quarter section of land in Adams county. Upon the trial the plaintiff introduced a deed from Patten to Tillson, dated April 21st, 1836, and another from TEIson to the defendant, dated March 15th, 1841. He then offered the record and decree in a suit in chancery from the records of the Adams Circuit Court, in which Morse was complainant, and Patton, Tillson, Hughes, and others were defendants. The bill in that suit was filed in February, 1841, and a decree of foreclosure entered in the April following. That bill sought the foreclosure of a mortgage, executed on the 31st of April, 1836, upon the premises in question, situated in Adams county, and upon twelve other quarter sections of land, one of which was situated in the State of Missouri, three in Warren county, three in Pike county, and the other five in five other different counties of this State. The decree purports to foreclose the mortgage upon all the land situated in this State, and in pursuance thereof the premises were sold by the Master in Chancery of Adams county, and the plaintiff became the purchaser, and received a master’s deed therefor, all" of which was reported to the court by the master. That court, by its final decree, approved the report and sale, and declared all the title and interest of all the defendants, to be vested in the purchaser. This decree remains, unreversed or.vacated. To the admissibility of this record, the defendant objected; but the court admitted it, subject to the objection. The admissibility of that record becomes the first subject of inquiry before us. It is now insisted, that the decree was utterly void, for the want of jurisdiction in the court which rendered it.

The Circuit Courts of this State are preeminently courts of general jurisdiction, and although that jurisdiction is not universal, it is much more so than any courts known to the English constitution. Our Circuit Courts have a general common-law and chancery jurisdiction, and among the most ordinary equity powers, is that of decreeing the foreclosure of mortgages. The character of this proceeding is within the ordinary chancery jurisdiction of the Circuit Court, and in such a case the record need not show the jurisdiction of the court, but that we are bound to infer, when the decree is questioned collaterally, as in this case, unless it affirmatively appears upon the face of the record itself that the particular subject upon which the court was adjudicating was not within its jurisdiction or control. The decree imports of itself absolute verity, unless it carries with it the evidence that the court acted without authority. Although our Circuit Courts possess general common-law and chancery jurisdiction, embracing of course the power to foreclose mortgages, yet it does not follow that they have the right to foreclose all mortgages; so that the right to act in a given case may depend upon the existence of facts. When the court has acted, we must presume, in a collateral proceeding, that those facts existed, unless the record affirmatively shows that they did not exist. In this case the record does not show affirmatively the facts, upon which the right of the Circuit Court of Adams county depended, so that there is no room left for those inferences or legal presumptions which would otherwise arise, in favor of the authority of the court to adjudicate upon a subject which is within its ordinary jurisdiction. The facts shown by this record are, that but one of the quarter sections upon which the mortgage was foreclosed, was situated in Adams county, three in each of two other counties, and one in each of five other counties, all however, within the same circuit. From these facts we are to determine whether the court acted wholly without authority, and whether its decree was utterly void. This leads us to an examination of our statute, which it *was supposed must determine the question.

The second section of our chancery act provides, that “ the mode of commencing suits in equity shall be by filing a bill, setting forth the nature of the complaint, with the clerk of the Circuit Court of the county within whose jurisdiction the defendants or a major part of them, if inhabitants of this State, reside; or if the suit may affect real estate, in the county where the same, or greater part thereof, shall be situated.” The object of this suit was within the meaning of this section to affect real estate. The mortgage embraced twelve quarter sections, and if the bill could only be filed in a county in which the greater part of the real estate sought to be affected was situate, then the Circuit Court of neither of the counties had jurisdiction, for until it is proved that three is the greater part of twelve, it cannot be admitted that the greater part of the land was in any one county, for in no one county were more than three of the twelve quarter sections situated. The Adams Circuit Court had as much right to claim jurisdiction as that of Pike or any of the other counties, for in neither was the greater part of the land situate. Therefore, the words, or the greater part thereof, have no application to this case, for it is not embraced within them; they do not describe it, and consequently can have no reference to it. But, even if we should construe these words to give jurisdiction to the Circuit Court of the county in which more of the land was situated than in any other one county, the same difficulty would still exist, in determining in which county the jurisdiction of the suit vested, for an equal quantity was situated in each of the counties of Pike and Warren, and consequently neither would come within that description. It was, however, conceded upon the argument, that where equal quantities of the land lay in different counties, either may take jurisdiction; but if so, it must be derived from some other part of the law, for unless equal means greater, it is manifest that such a case is not embraced in these words. They may, therefore, be withdrawn from our consideration, as having no application to the case before us, and the statute is to be read as if they were not there. It then reads : If the suit may affect real estate [the bill shall be filed] in the county where the same shall be situate.” This authorizes the Circuit Court of each county, within which a portion of the land is situated, to foreclose the mortgage as to that land at least. It is precisely like the case supposed by one of the counsel for the appellee, where a mortgage is upon several tracts of equal size, situated in several counties. That would be a case where the Circuit Court of neither county would have jurisdiction by reason of the greater quantity of the land being within it; and in that case it was conceded that the mortgage might be foreclosed in either county, at least as to the land embraced within it.

As the validity of the title, acquired under that decree of foreclosure, to the lands not situated in the county of Adams is not involved in this suit, I prefer to confine my opinion strictly to the case presented by this record; and I have therefore not in- . vestigated the question, so as to express an unqualified opinion as to the jurisdiction of the court over lands situated in other counties. It seems to me that it will be time enough to express an opinion on that subject, when the title acquired under the decree to those lands shall be brought before us for judicial action. That involves a very important inquiry relative to the general chancery jurisdiction of our Circuit Courts, the extent of the consequences of which we may not readily foresee. While inclined to the opinion expressed by the other members of the court on that subject, I shall proceed to show that the title acquired to the lot in controversy, under the decree, would not be affected, even if the court exceeded its jurisdiction in foreclosing the mortgage upon the lands situated in other counties, than that in which the court was held. I have already shown, to my own satisfaction at least, that by the express provisions of the statute, the Circuit Court of Adams county had authority to foreclose the mortgage as to the lot of land lying within that county; and assuming that the jurisdiction of the court did not extend to the lands situated in other counties, the question arises, did the exercise of a jurisdiction which it did not possess over those lands, render void that portion of the decree which affected the land over which it had jurisdiction ? That portion of the decree which would affect land beyond the jurisdiction of the court was of course void; but that I think would not vitiate that part of the decree which was entered in pursuance of an authority which the court did possess. The valid and void parts of the decree were not so dependent upon each other, or blended together as would necessarily require that a reversal of a part should destroy the whole. As to the lot in Adams county, the decree would have been precisely the same, had the court declined to render any decree against the other land. In that case, the owner of the lot in question, seeking to redeem after the decree, and before the Master’s sale, would have had to pay the full amount due upon the mortgage, for it was the right of the complainant to insist upon a sale of the premises, until he had received the full amount due him upon the mortgage. This very mortgage embraced one lot, situated in the State of Missouri. Suppose the jurisdiction of the court had been unquestioned over the lands in this State, and by mistake or design had ordered a sale of the lot in Missouri with the others, to that extent, undoubtedly, the decree would have been void; but there can be no reason why that should vitiate that portion of the decree which was rendered in pursuance of law and by lawful authority. The decree is not dependent and indivisible, but operates upon each lot separately. Even on appeal, this court would have only reversed that portion which was erroneous or void, and affirmed the balance. Suppose a court should render a decree against two defendants, over one of whom it had acquired no jurisdiction, and that this appeared on the face of the decree, we would only reverse the decree as to him, and affirm it as to the other, especially where it was of such a character that it might well have been rendered against the one served. This is a familiar principle, and every day’s practice. Suppose this very decree were now before us on appeal, unquestionably we should only reverse that part, in which the court overstepped the law, leaving the decree to stand as to this lot precisely as it is. If we would affirm that portion of the decree on appeal, surely we cannot pronounce it utterly void in this collateral action, and thus destroy a title acquired in good faith on the confidence of a decree rendered by a court of the highest original jurisdiction known to our laws. That title depends upon that portion of the decree in which not even error appears; and why should it be condemned as worthless. Confidence in judicial proceedings, and judicial sales, must not be thus ruthlessly shaken or destroyed. Even admitting, then, which I repeat we do not affirm, that the decree, so far as it affects lands beyond the bounds of Adams county, was void; still the court had a right to order this lot to be sold, in satisfaction of the mortgage, and the sale made in pursuance of the exercise of that lawful authority, was valid.

The questions, in relation to the tax-title, are disposed of in few words. The land was sold for taxes on the 3d day of May, 1841, for the taxes of 1840, to Robert Tillson, who was -at the time of the assignment of the tax, and till within a short time of the sale, the owner of the premises by virtue of a deed, executed in 1836 by Patten, the mortgagor! At least, until the mortgagee has taken possession of the mortgaged premises for condition broken, the owner of the equity of redemptioiTTsTo'bAAoñEdefed the owner of the land, and is liable for the payment of the taxes assessed upon it, while he is thus seized of the title; and, according to the rule laid down in Choteau v. Jones, 11 111. 300, he can acquire no title by becoming a purchaser at a sale for those taxes; such a purchase is but another mode of paying those taxes which it was his duty to have paid before the sale. There is another conclusive answer to this tax-title, which is, that it was entirely cut off by the decree of foreclosure. Tillson purchased at the tax-sale in 1841. He was made a defendant in the bill of foreclosure, which was filed in February, 1844. And at the following April term the decree was entered, adjudging “ that the equity of redemption of the said defendants in the land specified in said bill, filed in this cause, be forever barred and foreclosed. Said lands are described as follows,” &c. Here is a decree cutting off all and every right which Tillson or any of the other defendants in that suit had in the premises, and which still remains unreversed nor vacated. When the master sold, by vh'tue of that decree, he sold all the title which Tillson had in the premises, whether derived from the mortgagor or any other source. By the terms of the final decree, approving of the master’s report, as we shall presently see, the purchaser was fully seized of all the title of all the defendants in the premises. The Circuit Court, therefore, erred in admitting in evidence the tax deed for the purpose of proving an outstanding title. That deed was improvidently made, for at the time it was executed, whatever right, if any, which Tillson had acquired at the tax sale, had been divested by the decree of a court of competent jurisdiction.

Upon the argument, it was objected to the decree that it did not, in express terms, order a sale of the mortgaged premises. After decreeing the foreclosure, as above quoted, and describing the premises, it proceeds: “ That the said sale be made by the Master in Chancery of said county.” This follows immediately after the description of the land, and in that description the county of Pike was the last preceding county named, so that it was also objected, that the master in Pike and not in Adams should have made the sale. All of these objections are answered by the final decree of the court, which approves of the Master’s report of the sale, and orders that Ralston, the purchaser, “be fully seized and vested with all the title and interest of the said defendants in and to the said premises, according to the tenor and effect of the deed mentioned in the said master’s report.” Voorhees v. Bank U. S. 10 Peters, 471.

I am of opinion that the judgment should be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Treat,. C. J.

license: Public Domain

text:
    Nicholas Summers, Plaintiff in Error, v. Nancy Babb, Defendant in Error.
    ERROR TO CASS.
    Although a wife join her husband in conveying lands, if that conveyance be set aside as fraudulent, at the instance of creditors, and the land is sold and conveyed under a decree for the benefit of such creditors, after the death of the husband, the wife will be entitled to dower in these lands.
    The right to dower rests in action only. Before assignment, it cannot be aliened by the widow nor sold on execution against her. She may release it to the owner of the fee, but cannot transfer it to a stranger. When assigned, it becomes the subject-matter of sale and transfer.
    A widow is only entitled to take her dower according to the valuation of the land at the time of the alienation; she is not dowable of improvements put upon the land, but is entitled to the benefit of its increased value, arising from other causes than the labor and expenditure of the alienee.
    The facts connected with this case are sufficiently stated in the opinion of the court. The decree was rendered by Min-shall, J., at the September term, 1851, of the Cass Circuit Court.
    S. T. Logan, for plaintiff in error.
    M. McConnel, for defendant in error.
   Treat,. C. J.

In May, 1838, W. W. Babb and Nancy, his wife, conveyed certain lands to Butterworth. In July, 1841, in a suit in chancery, brought by the judgment creditors of Babb, the conveyance was set asidq as fraudulent, and the lands were decreed to be sold, for the satisfaction of their judgments. In October, 1841, the lands were sold under the decree, and conveyed to the purchasers. In October, 1843, Butterworth reconveyed the lands to Babb. In November, 1844, the lands were conveyed by the purchasers at the sale to Summers, who entered into possession and made valuable improvements thereon. Babb died in October, 1849, his wife surviving him. In February, 1851, the widow filed a bill in chancery against Summers, claiming dower in the lands. The foregoing facts appear from the bill and answer. At the September term, 1851, the court made a decree, appointing commissioners to allot the complainant dower in the lands, and directing them not to allow her the benefit of any improvements made thereon by the defendant. The entering of that decree is assigned for error.

First. Was the complainant entitled to dower in the premises ? This question was in principle settled izi Blain v. Harrison, 11 111. 384. In that case, the lands of Harrison were sold on execution. Subsequently, and before the time for redemption had expired; Harrison and his wife conveyed the same lands by way of mortgage. The premises were not redeemed, azid the purchasers obtained a sheriff’s deed. Harrison afterwards died, and his widow claimed dower in the lands. This court decided that her right to dower was not barred by the execution of the mortgage, because the estate mortgaged was extinguished by the failure to redeem from the prior sale, and the mortgage could not operate upon the contingent right of dower alone. It was held, in Stinson v. Sumner, 9 Mass. 143, where a wife released her claim to dower, by joining with her husband in a conveyazice, and the grantee recovered back the purchase-money because of a defect in the title, that the release of dower thereby became inoperative, and did not bar her right to dower in the land after the death of her husband. It was decided in Robinson v. Bates, 3 Met. 40, where a wife joined her husband in a conveyance, and a creditor of the latter afterwards levied on the land, and recovered it in a real action against the grantee, on the ground that the deed was fraudulent as to creditors, that the wife was restored to her right, and could recover dower in the land. These decisions proceed on the ground that the mere right to dower cannot be separated from the principal estate. The right to dower, though consummate on the death of the husband, rests in action only. Before assignment, it canzrot be aliened by the widow, nor sold on execution against her. She may release it to the owner of the fee, but canzrot transfer it to a stranger. It attends the-estate, and is only severed from it by assignihent. When assigned, it becomes as much the subject-matter of sale and transfer as aziy other life estate in lands. There is nothing in the present case to take it out of the operation of this rule. The creditors of Babb avoided the conveyance to Butterwortb, and thereby defeated the estate upon which the release of dower was designed to operate. The complainant was restored to her right to dower in the lands, and she has since done no act estopping her from asserting it.

Second. Was the complainant entitled to the benefit of the improvements, made on the land by the defendant? This question must be answered in the negative. By the common law, in the case of an alienation by the husband, the widow takes her dower according to the value of the land at the time of the alienation, and not according to its subsequent increased or improved value. 4 Kent’s Com. 65. The rule is well established in this country, that she is not dowable of improvements put upon the land subsequent to the alienation by the husband. The rule is founded in reasons of public policy. It tends to encourage the making of improvements and to advance the growth and settlement of the country. It works no injustice to the dowress. She has no just claim to the enhanced value of the land, caused by the labor and expenditure of the purchaser. A sale of the land on execution against the husband, is equivalent to an alienation by him. There is no reason for making any distinction between the two classes of purchasers. In either case, the purchaser acquires the entire interest of the husband. Our statute does not define dower. It provides for the assignment, but leaves the interest to be determined at common law. The authorities all agree, that, in the assignment of dower, the widow is not to be permitted to participate in the value of improvements made after the estate passed out of the husband. Thompson v. Morrow, 5 Serg. & Rawle, 289; Walker v. Schuyler, 10 Wend. 481; Catlin v. Ware, 9 Mass. 218; Tod v. Baylor, 4 Leigh, 498; Lawson v. Merton, 6 Dana, 471; Barney v. Frowner, 9 Ala. 901; Russell v. Gee, 2 Mills, S. C. R. 254; Allen v. McCoy, 8 Ohio, 418; Wooldridge v. Wilkins, 3 How. Miss. R. 360; McClanahan v. Porter, 10 Missouri, 746; Wilson v. Oatman, 2 Blackf. 223; Lewis v. James, 8 Humph. 537; Green v. Tenant, 2 Harrington, 336. There is some diversity of opinion upon the question, whether the widow is entitled to the benefit of the increased value of the land, arising from other causes than the labor and expenditure of the alienee. But the weight of authority, in the United States, is decidedly in favor of her right. On this question Chancellor Kent remarks: 11 The better and the more reasonable American doctrine on this subject I apprehend to be, that the improved value of the land, from which the widow is to be excluded in the assignment of her dower, as against a purchaser from her husband, is that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic or general causes.” 4 Kent’s Com. 68. In Powell v. Munson and Brimfield Manufacturing Co. 3 Mason, 347, Justice Story, after a thorough examination of the question, arrives at the same conclusion. He says: “ Upon the whole, my judgment is, that the dower must be adjudged according to the value of the land in controversy at the time of the assignment, excluding all the increased value from the improvements made upon the premises by the alienees; leaving to the dowress the full benefit of any increase of value arising from circumstances unconnected with those improvements.”

The direction of the Circuit Court to the commissioners was right. The decree is affirmed, and the cause is remanded for further proceedings under the decree.

Detree affirmed.


author: Treat, C. J.

text:
    James T. McJilton, Appellant, v. James Love, Appellee.
    APPEAL PROM MADISON.
    "The courts of this State will give the same faith and credit to judicial proceedings had in other States, as are given to them in such States.
    The pendency of a suit in one State, cannot be pleaded in bar or abatement of a second action in another State, between the same parties and for the same cause of action.
    ■The pendency of a writ of error cannot be pleaded in abatement of another action in the same State, unless the writ of error operates as a supersedeas, nor even then if the writ of error was sued out after the commencement of the second action.
    A bill may be filed to enjoin proceedings upon a judgment of one of the courts of this State, recovered upon a judgment in the courts of another State, if the party applying has not been guilty of any laches in the assertion of his rights, and the judgment of the foreign court has been reversed.

      The rights of third parties acquired under an erroneous judgment, are not divested by the reversal of such judgment.
    The assignee of a judgment takes it subject to all the equities Subsisting between the original parties, and will not be protected as a Iona fide purchaser under such judgment, if it shall be erroneous.
    A judgment cannot be so transferred as to vest the legal interest in the assignee. It is a mere chose in action, and the beneficial interest only passes by the assignment; the assignee takes the-judgment subject to all defences that existed against it.
    This was a bill in chancery, filed in the court below by Love against the said McJilton, Arthur Fairfield, A. P. Field, David M. Hall, Andrew Miller, John G. Gammon, and William Hardley.
    The bill sets forth, that on the 11th day of May, 1846, the said Arthur Fairfield recovered a judgment by default against the said Love, in the Circuit Court of St. Louis county, State of Missouri, for the sum of $800 and costs; that five days after the rendition of said judgment an execution was issued thereon, which said execution was returned nulla bom, but that after-wards, on the 28th day of October, 1846, by a written order from said Fairfield, the sheriff made an additional return on said execution, that the same was returned satisfied in full, costs paid by defendant; that on the 9th January, 1847, said Field and Hall moved the Circuit Court to vacate the entry of satisfaction on said judgment, for the reasons,
    1. That said Field and Hall had an assignment of $500 of said judgment from the said Fairfield, before said satisfaction was entered.
    2. That said Love knew that said Field and Hall had an interest in said judgment at the time he settled the same with said Fairfield, which motion was allowed and the entry of satisfaction vacated by said court, to which the said Love excepted.
    That on the 12th of January, 1848, the said Love filed a motion for a rehearing of said motion, which was overruled by said court and excepted to by said Love; all which matters appear from a reference to the record of said court, made part of the bill. The bill further states that said Field and Hall, under the name of Arthur Fairfield, commenced a suit by attachment in the Circuit Court of Madison county, Illinois, upon an affidavit that the said Love was indebted to them in the sum of $500 upon said judgment, which attachment was levied upon certain lands in said county of Madison; that a judgment was obtained on said attachment at the August term, 1848, an appeal taken to the Supreme Court, and the said judgment affirmed by the Supreme Court, at the December term, 1848, and is reported in 5 Gilman; that the property levied upon by the attachment was sold on an execution issued thereon to the said McJilton, and charges that McJilton bought said judgment from said Field and Hall, but does not know whether he paid any thing for said judgment, and calls upon him to answer; that said property was sold to John McJilton, as assignee of said Field and Hall, with full knowledge of said Love’s rights in the premises. The bill further sets forth that Love prosecuted a writ of error to the Supreme Court of Missouri, from the decision of the Circuit Court of St. Louis county, on the motion vacating the entry of satisfaction of judgment; and that at the March term, 1850, the Supreme Court of Missouri reversed the decision of said Circuit Court, as appears from the record of the proceedings of said Supreme Court filed with said bill. The bill charges that said Love is innocent of the acts charged against him in this suit in the original judgment, and that he was never served with process; admits that the sheriff’s return shows he was served; charges that he knew nothing of the proceedings until after judgment was rendered against him; that on hearing of said judgment he thought it best to pay or compromise the same, and, together with one Murphy and others, he made an arrangement with said Fairfield, by which said Fair-field was to dismiss a suit which he had instituted against said Murphy and others' upon the same cause of action, and that they were to settle up said judgment against him, said Love; charges that said judgment was settled up and paid to said Fairfield, and the execution returned satisfied in full as above stated; charges that at the time of payment he, said Love, knew nothing of the assignment of part of said judgment to said Field and Hall who sued out attachment on said judgment to harass and oppress him, said Love, with full knowledge that he had taken the case to the Supreme Court of Missouri, and that McJilton, the assignee, purchased the land with full knowledge of said Love’s rights in the premises; and charges that said Field and Hall, and the securities in the attachment-bond are insolvent; waives oath to the answers; prayer that the clerk of the Circuit Court of Madison county, or some other person, be appointed to receive the amount for the judgment and interest thereon, and if the decision should be in favor of said Love, that said money be paid back to him, but if the decision should be in favor of said McJilton and the other defendants, that then the same should be paid over to said McJilton, and such payment should be considered a redemption of said property within twelve months, as required by law; prayer for injunction and for general relief.
    The answer of McJilton denies all knowledge of any of the proceedings had in the Circuit Court of St. Louis, or in the Supreme Court of Missouri, upon the original judgment, the entry of satisfaction and vacation thereof, and the renewal of the decision on the vacation of the entry of satisfaction, at the time he purchased the judgment of the Circuit Court of Madison county, Illinois, from said Field and Hall; states that he purchased the' judgment from Field and Hall after the execution had been issued and levied on the land under said judgment; and denies that at the time said land was sold to him under the execution, he had knowledge that said Love had prosecuted a writ of error to the Supreme Court of Missouri; states that he took said judgment in part payment for property in St. Louis sold by him to said Hall in good faith, believing it to be a valid judgment, and that he purchased said property legally at the sale on the execution, and paid the costs in full to the sheriff; denies that said Hall is insolvent, and avers that he is worth the full sum of $10,000, and believes the securities upon the bond are also solvent and responsible for any damages sustained; avers that Love had a full defence at law, and cannot be admitted to litigate in a court of equity the matters which he could urge by way of defence in the attachment suit.
    The answer of Field and Hall admits the obtaining of the original judgment, and the proceedings had thereon in the courts of Missouri, and also the obtaining of the judgment in attachment in the Madison Circuit Court, and the sale of the land, under the execution issued thereon, to said McJilton; states that McJilton bought the said judgment from them for about $600, which sum was taken by him in part payment for a house and lot sold to him by them; denies that said McJilton had knowledge of any rights or pretended rights or equities in the premises ; avers that the said Love consented and agreed to the assignment of the said $500, a part of said judgment; denies that the said Love was innocent of the acts charged against him until after said judgment was obtained; denies that said Love and Murphy, or any one else, made an arrangement to settle up, and did settle up said judgment with said Fairfield, and denies that same was paid to said Fairfield or any one else for him; denies that any money or valuable consideration was paid to said Fairfield to procure from him the said entry of satisfaction of said judgment, unless it was a mere nominal sum, the better to enable him to defend the said Field and Hall of their claim; denies that they sued out the said attachment for the purpose of harassing said Love, but to secure their just claims; denies the insolvency of said Field and Hall; avers that Love has right to the relief prayed for, and that the judgment on the attachment is a valid judgment and the sale under it good, and that reversal of the entry of satisfaction on the original judgment of the Supreme Court of Missouri cannot be set up to impair said judgment in the attachment writ; avers that said Fairfield is insolvent, and prays that bill be dismissed.
    The cause was heard upon bill, answer, replication, and evidence.
    The evidence consists of the records of the proceedings had in the courts of Missouri, which was all the evidence.
    The court below decreed that the sale under the execution issued on the judgment in attachment be annulled and set aside, and that a perpetual injunction be granted, as prayed for in the bill, and that the money deposited with receiver be paid back to said Love, &c. From this decree the said McJilton prayed for, and has brought this case by, appeal, to this court for the purpose of having said decree reversed; and assigns for error, that the court below erred in rendering a decree in favor of said Love, when the decree should have been in favor of the said appellant and his co-defendants, and the bill dismissed.

      The cause was heard before Underwood, Judge, at September term, 1851.
    Davis & Edwards, for appellant.
    J. Giblespie and S. T. Logan, for appellee.
   Treat, C. J.

In May, 1846, Arthur Fairfield recovered a judgment against James Love, in the Circuit Court of the county of St. Louis, in the State of Missouri, for $800. Field and Hall were the plaintiff’s attorneys. In October, 1846, the sheriff returned the execution issued thereon, satisfied in full by the order of the plaintiff. In November, 1846, Field and Hall moved the court to vacate the entry of satisfaction, and award an execution on the judgment, to enable them to collect the sum of $500, on the ground that so much of the judgment was assigned to them by Fairfield, with the knowledge of Love, before the return of the execution. On the 9th of January, 1847, the court set aside the entry of satisfaction as to $500, and directed an execution to issue to collect that amount, for the benefit of Field and Hall. Love resisted the motion, and took a bill of exceptions to the decision of the court. On the 12th of January, 1847, Love entered a motion to set aside the order vacating the entry of satisfaction, and awarding an execution on the judgment. The motion was overruled on the 8th of February, 1847, and a bill of exceptions taken by Love. He afterwards sued out a writ of error, and, at the March term, 1850, of the Supreme Court of Missouri, the order of the Circuit Court sustaining the motion of Field and Hall was reversed, on the ground that the assignment of a part of the judgment was not binding on Love, unless made with his consent. See Love v. Fairfield, 13 Missouri, 300.

In March, 1847, Field and Hall, in the name of Fairfield, but to their use, sued out of the Madison Circuit Court, in this State, an attachment against Love, which was levied on certain real estate. They declared on the record of the judgment obtained in Missouri, and alleged that $500 thereof remained due and unpaid. Love pleaded nul tiel record, and payment. On the trial, in August, 1838, Field and Hall read in evidence the record of the judgment. Love introduced a transcript of the record, which included the execution and the return of the sheriff. Field and Hall then produced a transcript of the proceedings, subsequent to the return of the execution. On this evidence, the court rendered a judgment against Love for $569.09, and awarded a special execution against the property attached. Love prosecuted an appeal to this court, where the judgment was affirmed, at the December term, 1848. See Love v. Fairfield, 5 Gilm. 303. Field and Hall subsequently assigned the judgment to James T. McJilton. On the 28th of April, 1849, under a special execution issued on the judgment, the real estate attached was exposed to sale, and bid in by McJilton for $631, who received a certificate of purchase from the sheriff.

On the 26th of April, 1850, Love filed a bill in chancery, in the Madison Circuit Court, against Fairfield, Field and Hall, and McJilton, setting forth, among other things, the foregoing facts, and alleging that McJilton purchased the judgment with full knowledge of all the previous proceedings. He prayed that the sale might be set aside, and the defendants enjoined from asserting any rights under the judgment; and in the event that relief should be denied, he prayed for leave to redeem the lands from the sale, and brought into court the amount of money necessary for the purpose. An injunction was granted. McJilton, in his answer, alleged that he purchased the judgment for a valuable consideration, and without any knowledge of the judgment in Missouri, or of any of the subsequent proceedings thereon. Qn the final hearing of the cause, in September, 1851, the injunction was made perpetual, and leave given to Love to withdraw the money deposited. McJilton prosecuted an appeal.

Under the Constitution of the United States, and the legislation of Congress in pursuance of its provisions, the courts of this State are bound to give the same faith and credit to judicial proceedings had in Missouri, that are by law or usage given to them in the courts of that State. When such proceedings are drawn in question before our courts, their regularity and validity are to be determined not according to our laws, but with reference to those of Missouri. If valid and binding on the parties by the laws of Missouri, the proceedings must be held to have the like force and effect in this State. Mills v. Durgee, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat. 234; Bimeler v. Dawson, 4 Scam. 536.

The original judgment was satisfied of record, by the return of the sheriff. While the entry of satisfaction remained operative, the judgment was wholly without vitality. The record formed no basis for further proceedings. An action of debt could not be maintained upon the judgment; nor could final process issue for its collection. But the order of the court vacating the entry of satisfaction as to $500, imparted to that extent vitality to the judgment. It authorized Field and Hall, in the name of Fairfield, to bring an action on the record, or to sue out another execution on the judgment. We are bound to regard this as the legal effect of the order, under the laws of Missouri. It was considered by the parties as a judicial determination of their rights. It was so regarded by the courts of that State. Th.e highest court in the State entertained a writ of error, to inquire into its validity. And this action of the courts furnishes the most satisfactory evidence of the laws of Missouri, and of the operation and effect of the order. What effect this court would give to a like order of one of our circuit courts, is another question. If the order was binding on the parties by the laws of Missouri, it must be held to have the same force and effect in this State. In this state of the case the parties, having the control of the judgment, come into Blinois and sue out an attachment against the estate of Love, to coerce payment of the amount appearing to be due by the record. He pleaded nul tiel record, and thus put them upon strict proof of the existence of the judgment. He likewise attempted to show that the judgment was fully satisfied; but the order, setting aside the entry of satisfaction, effectually concluded him. It was a direct adjudication of the court in which the proceedings were had, that the judgment still continued operative and unsatisfied. So long as the order remained unreversed, Love was precluded from sustaining his plea of payment. If he had offered to introduce proof of payment to Fairfield, he would have encountered the conclusive objection that the court, before which the judgment was obtained, had judicially determined that the payment was made in fraud of the rights of Field and Hall, and, therefore, could not be interposed to defeat an action brought for their benefit. Nor could he have relied on the pendency of a writ of error in Missouri, as a defence to the action in this State. The pendency of a suit in one State cannot be pleaded in bar or abatement of a second action in another State, between the same parties, and for the same cause of action. Brown v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 Id. 99. And the pendency of a writ of error cannot be pleaded in abatement of another action in the same State, unless the writ of error operates as a supersedeas, and not even then if the writ of error was sued out after the commencement of the second action. Hailman v. Buckmaster, 3 Gilm. 498 ; Jenkins v. Pepoon, 2 Johns. Cases, 312; Peynn v. Edwards, 1 Lord Raym. 47. Under these circumstances, it is manifest that Love was not guilty of any laches in the assertion of his rights. He resorted to the only effectual means to remove the obstacle in the way of a perfect defence to the action in this State; the prosecution of a writ of error to reverse the order vacating the entry of satisfaction. But the course of proceeding in Missouri did not enable him to accomplish that object, until the judgment was recovered in this State, and his lands subjected to sale for its satisfaction.

What was the effect of that reversal upon the rights of the parties 1 It restored the entry of satisfaction, and left the judgment discharged of record. It exonerated Love from the payment of any part of the judgment to Field and Hall. It left the judgment in this state, without the least foundation upon which to rest. The law is well settled, that if a judgment is reversed, the parties are to be restored to their original rights, so far as it can be done without prejudice to third persons. If the plaintiff has derived any benefit from the judgment, he must make as full restitution to the defendant, as the circumstances of the case will permit. If he has received payment in money from ■the defendant, the latter can recover it back in an action of indebitatus assumpsit. If he has obtained money by the sale of the property of the defendant, the latter may recover it as so 'much money had and received to his use. If he has purchased in property under the judgment, and still retains the ownership, the defendant may recover the specific property in the appropriate action. If he has aliened the property, he is responsible to the defendant for its value. But" the rights of third persons are not affected. ' Their title to property acquired under an erroneous judgment, is not divested by its reversal. In such case; the defendant must look to the plaintiff for redress. These principles are too well established by authority, to require further discussion. Bank of U. S. v. Bank of Washington, 6 Peters, 8; Clark v. Pinney, 6 Cowen, 297; Green v. Stone, 1 Harris & Johnson, 405; McLagan v. Brown, 11 Ill. 519; Steelman v. Cheeseman, Pennington’s Rep. 120; Hubbel v. Broadwell’s Administrator, 8 Ohio, 120.

The complainant made out a clear case for the interposition of a court of equity, as against Fairfield, and Field and Hall. And McJilton occupies no more favorable position. He is not a stranger to the judgment. He is not entitled, to protection, as a bond fide purchaser under an erroneous judgment. He was the assignee of the judgment, and had the control of the execution, when he became the purchaser of the lands. By the assignment, he succeeded to no greater rights than Field and Hall had under the judgment. He took the judgment, subject to all the equities subsisting between the original parties. Hines v. Barnity, 8 Watts, 39; Chamberlain v. Day, 3 Cowen, 353; Jeffries v. Evans, 6 B. Monr. 119; Magher v. Kellogg, 24 Wend. 32. A judgment cannot be so transferred, as to vest the legal interest in the assignee. It is a mere chose in action, and the beneficial interest only passes by the assignment. The assignee, however, has the right to enforce its collection for his benefit, and for that purpose, to use the name of the party possessing the naked legal interest. And the courts will protect him against the acts of the assignor, and also against the acts of the debtor, after he has notice of the assignment. But he takes the judgment subject to all defences that existed against it in the hands of the party from whom he received it.

The decree of the Circuit Court is affirmed.

Decree affirmed.


author: Trumbull, J.

text:
    Cyrus Edwards et al., Appellants, v. Nathaniel M. McCurdy et al., Appellees.
    APPEAL FROM MACOUPIN.
    A verdict and judgment in replevin are conclusive only as between the parties to the action and their privies.
    A defendant in an action of replevin is at liberty to plead property in a third person, but such third person is not bound by the verdict, unless he is in some way connected with the party filing the plea.
    Where a party had replevied chattels, and upon the trial issues were formed on pleas of property in the defendant, and also in others; and the jury returned a general verdict in favor of the defendant on both issues; the defendant having afterwards brought suit on the replevin-bond and recovered judgment, settled that judgment with the plaintiff in the replevin suit; the oilier parties, in whom the right of property set up in one of the pleas in the replevin suit was alleged to be, caused execution to be issued, to collect, for their benefit, the amount of the judgment recovered on the replevin-bond:—

      Held, that such proceeding was unwarranted, and might be perpetually enjoined.
    The facts of this case are stated in the opinion of the court. The decree of the Circuit Court was rendered by Woodson, Judge, at October term, 1851.
    D. A. Smith, for appellants.
    J. M. Palmer, for appellees.
   Trumbull, J.

In 1846, McCurdy replevied a printing-press and types from the possession of Kennaday. The suit was tried at the August term, 1846, of the Fayette Circuit Court, upon issues formed on pleas of property in Kennaday, and also of property in Cyrus Edwards, William H. Davidson, John Hogan, Richard B. Servant, and William Thomas, administrator with the will annexed, of Joseph Duncan, deceased. The jury returned a general verdict in favor of Kennaday, upon both issues, and he had judgment for a return of the property, and seventy-five dollars’ damages for its detention. The property not being returned, Kennaday, in the name of the administrators of the sheriff, who had in the mean time deceased, for his own use, brought suit against McCurdy and his security, upon the replevin-bond, and obtained judgment for three hundred and fifty dollars. McCurdy, in June following, and after execution had issued, settled this judgment with Kennaday, by the payment of fifty dollars in money, and the surrender of Kennaday’s notes secured by mortgage on real estate, to the amount of three hundred dollars. In August, 1849, Edwards, and others in whom the right of property was alleged to be by one of the pleas filed by Kennaday, caused execution to be issued to collect for their benefit the amount recovered on the replevin-bond, notwithstanding McCurdy had once settled the judgment with Kennaday, for whose sole use, as shown by the record, the suit was brought.

This suit is a bill filed by McCurdy and his security upon the replevin-bond, perpetually to restrain Edwards and others from proceeding with said execution, or to collect said judgment. The Circuit Court decreed, in accordance with the prayer of the bill; Edwards and others have appealed, and complain that the decree of the Circuit Court is erroneous.

It is insisted, in behalf of appellants, that they were the real owners of the property replevied, and, as such, entitled to the amount of the recovery upon the replevin-bond; that the relation of Kennaday to them was that of a trustee or special-property-man, whose duty it was to resist the groundless claim of McCurdy to the property, and protect their rights by any legal proceeding, and that McCurdy had knowledge of Kennaday’s fiduciary character, and consequently had no right to compound with him the judgment on the replevin-bond. If the premises assumed by appellant’s counsel were correct, his conclusions could not well be denied. But in this case, it is neither shown that Edwards and others were the owners of the property replevied, nor that Kennaday, in prosecuting the suit on the replevin-bond, for his own use, as shown by the record, was in fact acting as their agent, or if he was, it is not shown that McCurdy had knowledge of those facts.

How does it appear that appellants were the beneficial owners of the property ? Certainly, not by the record of the replevin suit, for it is admitted, that the verdict in that case was general upon the plea of property in Kennaday, as well as of property in the appellants.

For any thing that appears upon the record, therefore, Kennaday may have been the owner of the property in his own right. If we go beyond the record, and look to the testimony given upon the trial of the replevin suit, as set forth in the transcript before us, it is clear that neither Kennaday nor the appellants, certainly not the appellants, were entitled to the property.

That evidence shows, that in 1834 or 1835, the press and types were purchased with funds contributed by various persons, for the purpose of establishing a whig newspaper at Vandalia; that one Blackwell advanced a larger sum than any other person, and made the purchase in his own name; that the press and types were placed in the possesion of one Hodge, for the purpose of enabling him to publish a whig paper upon the same, which he did, till some time in 1840, when he took Kennaday into partnership, and the two continued the paper till February, 1842, after which, Kennaday alone published the paper, and remained in possession of the property till it was replevied by McCurdy, in 1846. Hodge had the exclusive control of the press and types for many years, using them as his own, and in 1844, he sold and gave a bill of sale of the same to McCurdy. In 1838, Blackwell assigned to appellants his interest in the press and types; but it does not appear that they ever took possession or exercised any control over the same. There is no evidence in the record, of any contract or conditions upon which Hodge took possession of the press,— certainly there was no writing between him and any person, till he executed the bill of sale to McCurdy, in 1844. The understanding, no doubt, was, that he should use the press and types for the purpose, of publishing a whig newspaper; but this understanding seems never to have been evidenced by any written contract, as required by the statute of frauds and perjuries, in order to secure personal property to the real owner, as against the claims of creditors and purchasers of him who has had possession for the space of five years. McCurdy, according to the evidence contained in this record, being a purchaser from Hodge, who had been in possession for more than five years, would clearly have been entitled to a verdict in his favor, in the replevin suit, upon the plea of property in the appellants.

The record in that case is, however, conclusive evidence as between McCurdy and Kennaday, that the property did not belong to the formerbut it by no means establishes that it was the property of the appellants. Upon the issues formed,"it was incumbent on McCurdy to show title to the property. This, in the opinion of the jury, he failed to do. The allegation in one of the pleas, that the property belonged to Edwards and others, was mere inducement to the traverse of the plaintiff’s right, and the issue must have been made up on the traverse, not on the inducement. Anderson v. Talcott, 1 Gilm. 371. The verdict and judgment in the replevin suit are conclusive only as between the parties to the action and their privies. That is, it is conclusive upon McCurdy and Kennaday, but not upon the appellants, without evidence that they were in privity with one of the parties. The record itself contains no evidence of such privity. Had McCurdy succeeded in the replevin suit, the appellants might the next day have replevied the property from his possession, and the judgment in the action between McCurdy and Kennaday could not have been introduced as evidence on the trial without some proof dehors the record, to commit the appellants in some way with Kennaday. A defendant in an action of replevin is always at liberty to plead property in a third person, but such third person is not bound by the verdict rendered upon such plea, unless he is in some manner connected with the party filing the plea. No such connection is shown in this case between appellants and Kennaday, of which McCurdy had notice.

There is some controversy as to the evidence upon which the jury in the replevin suit probably founded their verdict; but admitting that it was upon the evidence offered tending to show that the appellants in this case were the owners of the property, and still they are not entitled to collect from McCurdy the judgment obtained against him on the replevin-bond after he has once settled it with Kennaday. McCurdy is not shown to have had any knowledge of the relations existing between appellants and Kennaday, except so far as they were developed on the trial of the action of replevin. The admissions made by Kennaday to appellants cannot affect McCurdy’s right to settle the judgment as he did, unless brought home to his knowledge. The letters written by Kennaday to appellants, and much of the evidence in the record, which tends to show, that as between those parties, he was answerable over to them, has no bearing upon the rights of McCurdy, inasmuch as he is not shown to have had knowledge of them. There is one fact upon the face of the record, which, if it does not estop the appellants from claiming the avails of the judgment on the replevin-bond, requires them to show, in the most satisfactory manner, that McCurdy had knowledge of their right to the judgment. That fact is this: Kennaday was permitted, with their knowledge and consent, for they insist that his attorney was also theirs, to institute- the suit for his own use, without any allegation upon the record that it was for their benefit, or that they had any interest in it. Why allow the suit to be prosecuted in this form, when in fact Kennaday was not interested in it, and had no authority except as the agent of appellants to settle the judgment ? Not only did the appellants fail to apprise McCurdy of their beneficial interest in the judgment at the time it was obtained, or before he settled it with Kennaday, but it was not till more than two years after-wards, in 1849, that they first give him notice of then claim, by suing out an execution to collect the judgment for their benefit. After such neglect, and suffering Kennaday to hold himself out to McCurdy and the world as the real owner of the judgment, it would be the height of injustice to shift the loss, if loss there be, from the shoulders of the appellants to those of McCurdy.

The decree of the Circuit Court is affirmed.

Decree affirmed.


text:
    Margaret B. Lane et al., Plaintiffs in Error, v. James P. Erskine et al., Defendants in Error.
    ERROR TO MADISON.
    On a bill to forclose a mortgage, the mortgagor, unless he has assigned the equity of redemption, is an indispensable party; and if he has died without transferring or devising the equity of redemption, the heir then becomes a necessary party, and no decree can be entered until the heir is before the court.
    The facts of this case are stated in the opinion of the court. The decree against Margaret B. Lane and John F. Hunt was rendered at the August term, 1847, of the Madison Circuit Court, for the sum of $3,501.06; and they sued out this writ of error.
    Stuart & Edwards, for plaintiffs in error.
    Henry W. Billings and Lewis B. Parsons, for defendants in error.
    The general rule is, that all persons should be made parties to a suit in chancery whose rights are so materially connected with the claims of the parties litigant, that no decree can be made without materially affecting the rights of the parties not before the court. Hallett v. Hallett, 2 Paige, 18; Bailey v. Inglee, 2 Id. 279; 3 Conn. 454.
    Nothing appears in the record to show that there are any other persons in any way interested in the matter in controversy; and, provided we admit that Lane had other heirs, they have no material interest, the fee-simple of the land being in Mrs. Lane, and Lane only having a life estate.
    Generally, objections, for want of proper parties, can only be taken before the hearing. Story’s Eq. Plead, sects. 75, 236, 237, 542; Elmandorf v. Taylor, 6 Condensed R. 54; Clifton v. Executors of Hoig, 4 Desaus. 349; Trustees of Watertown v. Cowen, 4 Paige, 515; 6 Conn. 428; 3 Id. 356.
    Taking the separate note of Hunt, by the agreement of the parties, amounts to a payment and satisfaction of the judgment, and discharge of the other partners of Hunt.
    The intention of the parties, as in other cases, will control. Estate of Davis v. Desanque, 5 Whart. 538; Sheehy v. Mandeville, 6 Cranch; 2 Condensed R. 364; Harriss & Donaldson v. Lindsay, 4 Wash. C. C. R. 273; Wildes et al. v. Fessenden, 4 Met. 20; Keerl v. Bridges, 10 Smed. & Mar. 612; Mason v. Wickersham, 4 Watts & Serg. 100; Arnold v. Camp, 12 J. R. 409; 1 Smith’s Leading Cases, 256; Story on Partnership, sects. 155, 156; Abercrombie v. Monly, 9 Porter, 145; Watson v. Owen, 1 Richardson, 112; Pope v. Tunstall, 2 Pick. 226; Byles on Bills of Exch. 286.
    This is a mere mortgage and power of sale, and was assignable by Hunt, like any other mortgage.
    The principal creditor is, in equity, entitled to the full benefit of any security given by the debtor to a surety, for his indemnity and for the discharge for the debt. Wright v. Morley, 11 Vesey, 12; Enders v. Brune, 4 Rand. 438; Kyner v. Kyner, 6 Watts, 221; Foster v. Fox, 4 Watts & Serg. 92; Ten Eyck v. Holmes, 3 Sandf. C. R. 428.
    Where the wife joins the husband in a mortgage of her estate to secure the debt of the husband, and the husband dies without discharging the debt, the mortgagee can proceed to satisfy his claim out of the mortgaged estate. Clancy’s Rights of Married Women, p. 589, and the authorities there cited.
    The wife only stands in the place of a creditor to her husband’s estate, when the debt secured was discharged by the sale of her property. Neimcewicz v. Gahn et al. 3 Paige, 614.
   Treat, C. J.

Hunt, Ridgely, and Lane were partners in business, under the name of Hunt, Ridgely & Co. The firm became indebted to Erskine & Eichelberger. It was afterwards dissolved, and Hunt and Lane formed a partnership, under the style of John F. Hunt & Co. The new firm assumed the liabilities, and succeeded to the effects, of Hunt, Ridgely & Co. Hunt and Lane subsequently dissolved their partnership, and its effects were transferred to Lane, who agreed to discharge the liabilities of both firms. At the same time, Lane and his wife conveyed certain real estate to Hunt, by way of mortgage, to secure and indemnify him against the payment of the partnership debts. Erskine & Eichelberger afterwards recovered a judgment against Hunt, Ridgely, and Lane, and sued out an execution thereon, which was returned nulla bona. They then accepted the promissory note of Hunt in satisfaction of the judgment, and received from him an assignment of the mortgage. They subsequently filed a bill against Hunt, and Lane and his wife, to foreclose the mortgage. Lane filed a demurrer, which was overruled. Hunt was defaulted. Mrs. Lane filed an answer, in which, among other things, she alleged that the mortgaged premises belonged to her in her own right, at the time of the execution of the mortgage. The complainants filed a replication, but no proof was taken as to the ownership of the property. At a subsequent term, the death of Lane was suggested, and a decree of foreclosure entered. A writ of error is now prosecuted in the names of the heirs of Lane.

On a bill to foreclose a mortgage, the mortgagor, unless he has assigned the equity of redemption, is an indispensable party. He has a direct interest in the account to be taken of what is due on the mortgage, for it fixes the amount of his indebtedness. And he is entitled to redeem the mortgaged premises, on payment of the amount thus ascertained to be due. If he dies intestate, the estate descends to his heir, burdened with the incumbrance. The heir has the same interest in stating the account, and the same right of redemption. It follows that he is a necessary party. It is accordingly well settled by the authorities, that, on a bill for the foreclosure of a mortgage, where the mortgagor has died without transferring or devising the equity of redemption, the heir is a necessary party, and no decree can be entered until he is before the court. Story, Eq. Pl. sect. 196; Coote on Mortgages, 503; 4 Kent’s Com. 185; Fell v. Brown, 2 Brown’s C. R. 276; Palk v. Clinton, 12 Vesey, 48; Farmer v. Curtis, 2 Simons, 466; Worthington v. Lee, 2 Bland. 678; Williamson v. Field, 2 Sandf. C. R. 533.

This rule presents an insuperable objection to this decree. The presumption from the record is, that Lane was the owner of the equity of redemption, and that it descended to his heirs. The statement in the answer of Mrs. Lane, that, the premises belonged to her in her own right, was not responsive to the allegations of the bill, and cannot be considered as rebutting the presumption. On the death of Lane, the complainants, instead of proceeding to a hearing of the case, should have amended their bill by alleging that the mortgaged premises belonged to Mrs. Lane, and that the estate of her husband therein terminated on his decease, or have'filed a supplemental bill malting his heirs parties to the suit.

Several interesting questions were made on the argument; but as the case is not in a condition to be decided on the merits, we refrain altogether from discussing them.

The decree will be reversed, and the cause remanded, with leave to the complainants to amend their bill, or file a supplemental bill, as they may deem most advisable.

Decree reversed.