32 Ill. 489 | Ill. | 1863
delivered the opinion of the Court:
The first question which we propose to consider is, whether the decree against William Y. Murphy, Abner GL Murphy, and the other unknown children of William Y. and Elizabeth Murphy, was a bar to this recovery. It was on a bill in chancery, and it was against Abner GL Murphy,, one of the plaintiffs in this case. That decree declares the deed from Buchanan to him and his father and mother and their children void. There is no evidence that this decree was ever annulled, reversed or set aside, but the presumption is, that it is still in full force. It cannot be questioned that the Court of Chancery had jurisdiction of the subject matter of the suit, and of the person of Abner GL Murphy, one of the plaintiffs. This being the case, whatever may be said in reference to whether the other plaintiffs were parties to that proceeding, the decree was binding on Abner GL, and divested him of his title to the land in controversy. It then appears that he had no right to recover.
He was, therefore, improperly joined as a plaintiff in the suit in the court below. Whilst in actions ex delicto, the misjoinder of defendants is immaterial, the joinder of too many plaintiffs is ground of nonsuit on the trial. 1 Chit. Bl. 76. In this respect, actions on contract and for torts are alike.
Again, there was a fatal objection to a recovery of an imdivided interest in this case, because the plaintiffs proceeded for the entirety. Under a declaration for the entire premises, an undivided interest cannot be recovered. Ballance v. Rankin, 12 Ill. 420; Rupert v. Mark, 15 id. 540. Even if it was conceded that the decree was not binding upon the other plaintiffs, it was operative upon Abner, and it established the fact that he had no title, but it had been passed to the creditors of his father. Then if the other plaintiffs had shown title, it was for only an undivided three-fourths of the land. This established a different title from that declared for, as well as to different parties as the owners.
The judgment of the court below must, therefore, be affirmed.
Judgment affirmed.
