100 Ind. 510 | Ind. | 1885
The appellant alleges in his complaint that he is the owner of the real estate which is the subject of controversy in this action; that the appellee Ambrosher is the owner by assignment of a judgment and decree rendered by the Jay Circuit Court against Samuel H. and Joseph "Williams, foreclosing a lien against the land; that the appellant had no notice of the lien; that an execution was issued on-the judgment at the instance of Ambrosher, and that his co'appellee Colly C. Wingate, as sheriff of Jay county, is threatening to sell the land of the appellant to satisfy the judgment. The complaint prays an injunction.
An owner of property has a right to enjoin its sale upon a judgment rendered against another person. It is clear that one man’s land can not be seized to pay a judgment against a person who stands to him as a stranger. Bishop v. Moorman, 98 Ind. 1 (49 Am. R. 731). The appellant did not mistake the form of the remedy.
A person who is not made a party to an action is not bound by the judgment or decree, unless, indeed, he becomes a privy' in contract or estate to the judgment debtor. It has often, been held that the owner of land is not bohnd by a decree-rendered in a suit to which he was not a party. This principle applies even in cases where mortgaged land has been sold, and the mortgagor, but not his grantee,.is made a party to the.
The complaint is not very carefully drawn, but the remedy for uncertainty is by motion, and not demurrer, so that if more specific statements were desired, a motion to make more •certain should have been addressed to the complaint.
There is, however, a fatal defect in the complaint. It is not alleged that the appellant was a purchaser for value. For anything that appears he is a mere volunteer. In order to secure the defeat of a lien and the overthrow of a judgment, the party must show that he paid a valuable consideration for the property affected by the decree. It will not be presumed in favor of such a person, that he is a bona fide purchaser for value, for the validity of the lien is not questioned, nor is the validity of the decree impugned in so far as it adjudicates upon the rights of the parties before the court, and, surely, a mere volunteer can not defeat the lien or secure a vacation of the decree. In a work upon equity, first given to the world more than a century ago, it was said: 7‘ But, regularly, equity is remedial only to those who come in upon an actual consideration.” 1 Fonblanque Eq. (2 Am. ed.), p. 348. In a note to the text it is written: “ It is certainly generally
The court erred in overruling the demurrer to the complaint, and'the cross errors of the appellees are well assigned.
As the complaint is bad, there would have been no error in overruling the demurrer to the answer even if it had also been bad, but it was clearly good.
The questions raised by the demurrers to the replies can not be understood without giving a brief synopsis of the answer. . This pleading alleges that promissory notes were executed for the purchase-money of the real estate in controversy ; that these notes were assigned to David C. Baker, w-ho brought suit on them, and sued, also, to enforce a vendor’s lien; that suit was brought on the 5th day of June, 1878, and on the 18th day of that month the appellee’s assignor recovered judgment against Samuel H. and Joseph Williams, the makers of the notes, and recovered, also, a decree declaring a vendor’s lien; that on the 22d day of May, 1877, Samuel
The reply avers that the land was conveyed to the wife of Samuel Williams to secure a debt which he owed her, and that she received the land in payment of that debt. This does not show that she is a bona fide purchaser for value in such a, sense as to enable her to defeat the right of the vendor to enforce a lien for the purchase-money. It would be gross injustice to permit a man to get another’s land without paying for it, and, after having got it, turn it over to his wife in payment of a precedent debt. It is clear that the vendor’s is the stronger equity, and it is also prior in point of time. A precedent debt is a consideration sufficient to support a contract. Boling v. Howell, 93 Ind. 329, see p. 331; Hewitt v. Powers, 84 Ind. 295. It is not, however, such a consideration as will constitute a person a bona fide purchaser, with rights superior to those of the unpaid vendor of the land. It is not difficult to discriminate and plainly indicate the line between cases-where a precedent debt is relied upon to support a contract between the parties,' and those where it is relied upon to defeat a prior equity. Busenbarke v. Ramey, 53 Ind. 499; Gilchrist v. Gough, 63 Ind. 576; Davis v. Newcomb, 72 Ind. 413; Louthain v. Miller, 85 Ind. 161; Durham v. Craig, 79 Ind. 117, vide p. 125; Evans v. Pence, 78 Ind. 439, vide p. 440; 2 Pomeroy Eq., section 749.
Where the creditor essentially changes his position, or parts,
There are other reasons why the reply is bad, but we deem it unnecessary to discuss them.
Judgment affirmed.