| Ind. | Jun 11, 1855
Stanley, on the 6th of June, 1850, sued Hugh A. B. Peoples, Thomas Skilmcm, John Fisher, John Jones, Alvin Kite, and Orrnge Fisher, in chancery, in the Marshall Circuit Court.
The bill states these facts:
Peoples and Skilman, as sureties for Jones and Kite, became indebted to Stanley 600 dollars. Jones, Kite and Skilman were insolvent. Peoples, with intent to defraud Stanley, and evade the payment of said debt, which was then in judgment, placed a certain amount of money in the hands of John Fisher, and directed him to lay it out in canal land, and take the title in his; Fisher’s, name. In pursuance of this arrangement, Fisher went to the land-office at Logansport, and purchased a quarter-section of of land in Marshall county. After this, Peoples, with his family, moved upon said land, improved it, and resided thereon until the month of March, 1850, when he and Fisher left the state, with the avowed intention of going to California. When Fisher bought the land, he obtained a certificate of purchase, which, before he started to California, he assigned to Patsey Peoples, the wife of the said Hugh Peoples, and she, the said Patsey, remained in the occupancy of the land, and also in the possession of personal property belonging to her husband, worth 500 dollars. It appeared that, within a few days after their departure for California, Patsey Peoples died, leaving William, George,
The record shows that Peoples and John Fisher were notified by publication, and defaulted; though an affidavit of their non-residency does not appear to have been made. It is alleged that the minor defendants answered by guardian ad litem; but it is not shown that they had any notice of the suit, or that any steps, by process or otherwise, were taken to notify them of the proceeding. The other defendants, (except Orange Fisher, who answered,) were served with process, and defaulted.
The Court, upon final hearing, directed the notes taken for the sale of the personal property by Orange Fisher, (which had been brought into Court,) to be collected, and the proceeds to be applied to the payment of Stanley’s claim, which was adjudged to be 596 dollars; and for the payment of the balance, if any, after the application of such proceeds, the land was ordered to be sold.
This decree, in our opinion, can not be sustained—
1. Because the notice by publication against Peoples and Fisher does not appear to have been preceded by an affidavit of non-residency. Without such affidavit, we think the notice was insufficient, and, consequently, they were not properly before the Court. A provision of the R. S. 1843, in force at the time of these proceedings, points out the mode in which a non-resident party may be notified of the pendency of a suit, and expressly requires that such notice shall be upon affidavit. R. S. 1843, p. 833.
2. It is not shown that the minor defendants were served
3. A Court of chancery has no power to appropriate choses in action in payment of a creditor’s demand against his debtor, whether such demand be in judgment or otherwise. This point is decided in Shaw v. Aveline, 5 Ind. R. 380; and also in Stewart v. English, ante, p. 176.
The decree is reversed with costs. Cause remanded, &c.