Park ex rel. Dutton v. Ballentine

6 Blackf. 223 | Ind. | 1842

Dewey, J.

Moody Park, suing for the sole use of William Button, instituted a suit in chancery against Victor King, John King and David Ballentine. The object of the bill is the enforcement of a vendor’s lien upon the property sold, for a part of the purchase-money. The amount unpaid is $2,000 and interest, which is secured by a note esecuted by Balleniine to the complainant. The beneficial interest in this note is alleged by the bill to be in Dutton. On the final hearing of the cause, the Circuit Court dismissed the bill without prejudice to Dutton.

8. C. Stevens, for the appellant. J. Q. Marshall, for the appellees.

The dismissal of the bill is against established practice. It is true, the bill could not be entertained in the name of Par't, who is shown to be a mere trustee for Dutton. The latter ihould have been a party. Malin v. Malin, 2 Johns. C. R., 238, and the authorities there cited. Between the present par-lies, the cause is not inr a-situation to be heard upon its merits; 1 ut the bill should not have been dismissed. The cause should have stood over, that the proper parties might have been made. Anon., 2 Atk., 15; Jones v. Jones, 3 Atk., 111.

*Per Curiam.—The decree is reversed. Causé remanded, &c.