| Ind. | Dec 9, 1845
— The bill in this case was filed to enjoin the collection of a judgment at law, obtained by Polke against Fitch, on a note for 685 dollars, the balance of the purchase-money for a section of land, sold and conveyed by Polke to the complainant. The bill alleges that, in the purchase of said land, the complainant was grossly deceived and defrauded by the defendant, who represented, at the time of the sale and frequently before the sale, that he had a good title. It is alleged that the land belonged to Aubenaubee, a Pattawatima Indian, in his lifetime; that he died, without having conveyed said land, intestate, leaving two sons, his heirs at law, one of whom is a minor; that certain proceedings were had in the Wabash Probate Court, after the death of Aubenaubee, by which the interest of the minor heir in and to said land was directed to be sold; that a sale of the undivided half of said section was made by the guardian of the minor heir, pursuant to the order of the Court; and that, at said sale, one John T. Douglass became the purchaser; that said proceedings were all h’regular and the sale under them was void. It is alleged that Polke had no title to the land except what he
The answer of the defendant admits the sale and conveyance of the entire section of land as stated in the bill. It admits that a large portion of the -purchase-money was paid by the complainant at the time of- the sale, and that the -judgment at law, mentioned in the bill, is for the residue. It admits that the defendant hacj no other title to the land than that derived from the heirs of Aubenaubee through Douglass, and insists that it was a good and complete title. It alleges that the complainant was, at the time of the purchase, fully acquainted with the defendant’s title; denies that any false representations as to the title were made; and says that, pending the trial, the complainant filed pleas in bar of the note on which the judgment at law wras obtained, and after-wards abandoned the defence. The defendant admits that he does not reside within the jurisdiction of this state, but denies the charge of insolvency.
No depositions are on file; and the cause is submitted to us on bill, answer, and exhibits.
There are certain facts in this case about which there is no controversy between the parties. It is agreed, that the defendant sold to the complainant the entire section of land mentioned in the bill, for the price of 1,700 dollars, and that all of the purchase-money was paid except the sum of 685 dollars. It is also agreed, that the land mentioned is one of
We are satisfied, therefore, that this is a proper case for the interference of a Court of equity. It appears' that the complainant was deceived by the false representations of the vendor as to his title, and that he remained ignorant of the fact that the vendor had not a good title, until after the rendition of the judgment at law. This excuse for not defending at law is sufficient to authorize the interference of a Court of'equity. Williams v. Lee, 3 Atk. 223.—Simpson v. Hart, 1 J. C. R. 98.—Shelmire v. Thompson, 2 Blackf. 270" court="Ind." date_filed="1829-05-27" href="https://app.midpage.ai/document/shelmire-v-thompson-7029657?utm_source=webapp" opinion_id="7029657">2 Blackf. 270. The defendant, it is true, alleges that the complainant knew all the facts of the case as well pending the suit at law as he did when he filed his bill, and that he pleaded the same matter in bar of the action at law; but no proof of the allegation, although the proof was within his reach if the allegation be true, has been adduced. Bowser v. Bliss, May term, 1845.
The Court rendered a decree enjoining the judgment, and for costs.