Holland v. Jones
9 Ind. 495
Ind.
1857
Check Treatment
Davison J.

This was an action by Jones against Holland, Proctor,' and Critchlow, to recover certain real estate in Lawrence county. The issues were submitted to the Court, who found for the plaintiff. New trial refused, and judgment, &c.

The facts of this case are substantially these: One *496Austin Speer, being the owner in fee simple of a lot of ground, which is the real estate in controversy, employed Jones to build a house on the lot. Jones built the house, and after its completion, viz., on the 10th of January, 1852, he filed in the recorder’s office of the proper county, a notice of lien for the amount of his work and labor in the building. In April, 1852, Jones instituted a suit in chancery in the Lawrence Circuit Court, to enforce the lien. At the spring term of the Court, the bill was taken as confessed against Speer, and a decree rendered that the building and interest of Speer in the lot should be sold to satisfy the lien. Under this decree the property was sold by the sheriff to Jones, who received a sheriff’s deed pursuant to the sale. • After Jones had filed his notice of lien, and before the institution of the chancery suit, Holland was rightfully in possession of the lot, under a deed in fee simple to. him from Speer, which deed was duly acknowledged and recorded in the office of the recorder of said county, within the time prescribed by law, and before the commencement of the suit to enforce the lien. Holland was not a party to that suit. Since he received his deed from Speer, he has been continuously in possession of the lot. Proctor and Oritchlow are his, Holland’s, tenants.

As Holland was not a party to the suit to enforce the lien, it is insisted that the decree in that suit, as to him and his title to the property in contest, was inoperative. The general rule is, that all persons whose- interest will be affected by the decree should be made parties; otherwise they will not be bound by it. 2 McLean, 266, 376.—3 Cranch, 320.—3 Johns. Ch. 459. Mr. Story says: “Where the mortgagor has conveyed his equity of redemption absolutely, the assignee only need be made a party to a bill to foreclose. * * * So if the mortgagor has assigned-his equity absolutely to several persons jointly, they must all be made parties.” Story’s Eq. PI. s. 197. In the case stated, Holland received an absolute deed for the premises on which the lien rested; his deed was duly recorded, and he was in possession of the property, when Jones brought his suit in chancery. It seems to follow that *497Holland was a necessary party. When that suit was instituted, there was a statute in force relative to mechanics’ liens, which provided that, any person having such lien might enforce the same by filing a bill in chancery. R. S. 1843, p. 777. But in looking into the various provisions of the statute, we perceive no intent to change the ordinary rules of a chancery proceeding, in respect to the necessary parties to a suit.

W. T, Otto and S. W. Short, for the appellants.

We are, therefore, of opinion that Holland, not being a party, was not bound by the decree. The result is, that the recovery against appellants cannot be sustained.

Per Curiam.

The judgment is reversed with costs.