McCulloch's Administrator v. Hollingsworth

27 Ind. 115 | Ind. | 1866

Elliott, J.

This was a complaint for an injunction by Joseph O. Hollingsworth against Banger, administrator cle bonis non of the estate of James McCulloch, deceased, and Crane, sheriff of Vermillion county, to restrain the sale of certain real estate, &c. The' material facts averred in the complaint are, that McCulloch, in 1859, recovered a judgment in the Court of Common Pleas of Vermillion county, against Martha Hollingsworth, which became a lien on certain real estate in said county, belonging to her; that Mc-Culloch died in 1863, and one Conkey became his administrator, and had the judgment against said Martha revived in his name; that he subsequently resigned said trust, and the defendant Banger was appointed in his stead, as administrator de bonis non; that said Martha Hollingsworth, alter the rendition of the judgment, sold and conveyed the real estate upon which it was a lien to one Hdmonston, who sold and conveyed it to the plaintiff, and that the plaintiff' sold and conveyed the same, by deed of warranty,, to one Jones; that an execution issued on said judgment had been placed in the hands of said Crane, the sheriff, who had levied.it on said real estate, and was about to sell the same. It is further alleged that the plaintiff fully paid said judgment, and the interest and costs due thereon, for said Martha, to said’ McCulloch, in his lifetime. The complaint prayed that the sheriff' be enjoined-from selling said real estate on said execution, &c. Ranger, the administrator, appeared and demurred to the complaint. The demurrer was overruled, to which luffing an exception was taken, and Ranger then answered by a general denial. Trial by jury, and verdict that the allegations of the complaint were true, and “ that the judgment mentioned in the complaint had been fully ■ paid and satisfied, principal, interest and costs.” Motion for a new trial made and overruled, and an order of perpetual injunction against the collection of the judgment. Ranger appeals.

The overruling of the demurrer to the-eomplaint is complained of as erroneous. The objection urged to the complaint is, that the facts stated do not show such an interest in Hollingsworth as to entitle him to become the party plaintiff; that having sold and conveyed the real estate to Jones, he, alone, if any one, could maintain the suit.

It is alleged in the complaint that Hollingsworth conveyed the land to Jones by deed of warranty. The judgment was not satisfied of record, and was, therefore, an apparent lien on the real estate. The administrator denied its payment, and was proceeding to collect it by a sale of the real estate. Hollingsworth had notice of these facts. ’ -Tie was liable to Jones on the covenants of his deed, if the title to the real estate failed. His liability was in danger of becoming fixed by the sale under the execution. These facts, we think, show that Hollingsworth had an “interest in the subject of the action, and in obtaining the relief demanded;” such an interest as entitled him to bring the suit. 2 G. & H., § 17, p. 45. In this conclusion we are fully sustained by the cases of The City of Hartford v. Chipman, 21 Conn. 488, and Redwine v. Brown 10 Georgia 811.

Hggleston $ Maxwell, A. Q. Porter, B. Harrison, and W. P. Pishbach, for appellants. B. P. Bhoads, J. P. McDonald, A. L. Boaehe and D. Sheelcs, for appelleel

A question is also presented upon the admission by the court of the plaintiff to testify as a witness on the trial, on his own behalf. But the record shows that the court required him to testify. There was no error in this. 'See Acts 1865, § 8, p. 59.

The judgment is affirmed, with costs, to be levied of the assets, &c.