42 Ind. App. 346 | Ind. Ct. App. | 1908
This was an action by appellee against appellant to recover damages for a breach of the covenants in a warranty deed executed by appellants to appellee,' conveying to appellee a certain tract of land in Blackford county. The complaint averred, among other things, that Byron M. Boyd had recovered a decree against appellee foreclosing a vendor’s lien on the land in question; that to protect its title, appellee paid said decree and by said suit sought to recover the amount so paid. Appellants answered in general denial and by affirmative matter, among other things averring that while they were parties to the Boyd suit the decree was entered only against appellee upon its abandonment of the defense, and as to appellants the cause 'was continued for further adjudication; that said cause is still pending as to them, and then averring, as a defense, facts that, if true, show that the Boyd claim was not a lien upon this particular tract. Trial was had, special findings made by the court, and judgment rendered in favor of appellee,
This is all of the evidence submitted to the court to support the validity of the lien, or to prove that appellants were liable to appellee for the amount so paid on said Boyd decree. It is contended on the part of appellee that since appellants were parties defendant to the Boyd case the decree was conclusive on them, and no evidence other, than the proceedings and decree in the Boyd case was necessary to show appellants ’ liability to appellee.
On the other hand, it is contended by appellants that, while they were parties to the suit, the decree entered did
Judgment reversed, with instructions to grant a new trial.