Brown v. Wyncoop

2 Blackf. 230 | Ind. | 1829

Blackford, J.

The plaintiff in error was the complainant below. He states in his bill that, in 1825, he bought a tract of land from Rossell Sturdevant, received a title-bond for it at the time, and afterwards, in 1827, obtained from him a deed; that Rossell Sturdevant had bought the land, bona fide, from Azor Sturdevant, in 1817, who, in the same year, had bought it from John Bates. He further states that, in 1819, Schoonover, the assignee of Bates, recovered a judgment against Azor Sturdevant for 733 dollars and 33 cents, due for the consideration of the land as the complainant believes; that the land was levied on as Azor Sturdevanfs, under an execution on this judgment, and bought at the sheriff’s sale by Schoonover; that in the same year, 1819, Schoonover sold the land to Wyncoop, the present defendant; that after the sheriff’s sale, Azor Sturdevant paid the judgment to Schoonover, who agreed to enter satisfaction on it; that the complainant, under his purchase, has kept peaceable possession of the premises; that the defendant, claiming under Schoonover, filed a bill in chancery against Rossell Sturdevant, in his absence, alleging that the deed to him from Azor Sturdevant had been made to defraud Schoonover out of his money; that the defendant, though he knew of the complainant’s claim, did not make him a party to the chancery suit; that the bill was taken for confessed, in Rossell Sturdevanfs absence, and the conveyance to him from Azor Sturdevant was set aside; that after this decree, the present defendant, Wyncoop, brought an action of ejectment against the complainant, and obtained a verdict against him; and, in consequence of -the said decree, will recover the possession, unless the Court interferes. The bill prays, that the complainant may be made a party to the former chancery suit against Rossell Sturdevant; that the decree may be opened, and the complainant allowed to answer the bill. It also prays an injunction of the proceedings at law. The defendant demurred to the bill; and the Circuit Court sustained the demurrer.

We have no doubt, but that the decision of the Circuit Court is correct. One short reason is, that the complainant had every opportunity, in the action of ejectment, to defend the cause on the ground of his deed from Rossell Sturdevant. The bur-then of proof of that deed’s being insufficient, for want of a title in Rossell Sturdevant, lay upon the plaintiff in that action. The decree in chancery against Rossell Sturdevant, was no evidence in the ejectment against the present complainant, because he was not a party to that suit; and, consequently, not bound by the decree in it. By the present bill, the complainant only seeks for an opportunity to oppose the charge of fraud, made to the deed by which his grantor claimed the property. The opportunity to do that was given to the complainant in the action at law. The demurrer to the bill was correctly sustained.

Rariden, for the plaintiff. Casmlh for the defendant. Per Curiam.

The decree is affirmed with costa,