Browning v. Chrisman

• Decision Date: 31 July 1860
• Parties: BROWNING, Plaintiff in Error, v. CHRISMAN, Defendant in Error.
• Court: Missouri Supreme Court

30 Mo. 353

BROWNING, Plaintiff in Error,

v.CHRISMAN, Defendant in Error.

Supreme Court of Missouri.

July Term, 1860.

1. No dismissal of a suit as to a party thereto should be allowed, when it will produce derangement in the rights of the defendants, deprive them of a legal defence, or subject them to increased difficulties or liabilities.

2. In equity there may be a decree against one defendant in favor of a codefendant.

3. B. conveyed certain real estate to D. with covenants of warranty. D. instituted an action of ejectment against C. to recover possession thereof. C. set up in his answer as a defence to this action a prior purchase by himself of said real estate from B.; that he had taken possession and paid a portion of the purchase money; that B. had executed a deed of said real estate to him, but fraudulently refused to deliver it; that D., fraudulently contriving and confederating with B., obtained a deed from the latter. C. offered to pay the remainder of the purchase money, and prayed for a decree of title against D. and B.; that B. be made a party to the action; and that an order of publication be made against B., he being a nonresident. An order of publication was made against B. The court, by its decree, vested the title to the real estate in controversy in C., annulled the deed of B. to D., and decreed that C. should pay to B. the balance of the purchase money, and gave judgment against B. and D. for costs. Afterwards B. presented a petition to the court, under the provisions of the thirtieth article of the practice act of 1849, (Sess. Acts, 1849, p. 103, § 8-11,) praying the court to set aside the decree, and for leave to file an answer. This motion was accompanied by an affidavit denying specifically the allegations contained in the answer of C. The court granted leave to B. to file an answer; which leave was acted upon by the latter. Afterwards C. filed a motion setting forth that the original action of D. against him was an action of ejectment; that he, C., set up an equitable defence praying for a decree of title and that B. might be made a party; that he was accordingly made a party and a decree rendered in favor of C.; that said B. was not and is not a necessary party; and praying the court to set aside the judgment or decree as to B. and strike his name out as a party, leaving the judgment in full force against D. The court sustained the motion, and the judgment rendered in the suit of D. against C. and B. was set aside as to B., the court directing that the case should be “left open for B. to pursue any remedy he may have against C., as though he had never been a party to the original suit of ejectment instituted” by D. against C. The court dismissed the petition.

Held, That this action of the court was erroneous; that B. would be injuriously affected by the decree, his deed to D. being a deed with covenants of warranty; that B. had a right to come in and plead to the original action.

Error to Howard Circuit Court.

This cause grows out of an action of ejectment brought in the Moniteau circuit court in February, 1856, by T. E. Dickerson against David Chrisman, to recover possession of certain real estate in the town of California. In this suit the plaintiff claimed title by virtue of a deed from one Browning. The defendant Chrisman set up an equitable defence, alleging a prior purchase by himself from Browning; that he took possession under said purchase and paid a portion of the purchase-money; that Browning executed a deed to him but fraudulently refused to deliver it; that the plaintiff Dickerson, knowing these facts, confederated with Browning and fraudulently obtained a deed from said Browning to himself. Defendant Chrisman offered to pay the balance of the purchase money, and prayed for a decree of title against the plaintiff Dickerson and Browning; that Browning might be made a party to the action; that an order of publication might be made against him, he being a nonresident. An order of publication was accordingly made. The court, by its decree, vested the title to the lots in Chrisman, annulled the deed of Browning to Dickerson, and decreed that Chrisman should pay to Browning the balance of the purchase money. This decree was affirmed in the supreme court. (See Dickerson v. Chrisman, 28 Mo. 134.)

After the rendition of this decree, Browning presented a petition to the court under the thirtieth article of the practice act of 1849 (Sess. Acts, 1849, p. 103, § 8--11), praying the court to set aside the decree rendered, grant a rehearing of the cause, and allow said Browning to file an answer therein. This motion was accompanied by an affidavit, in which the allegations of Chrisman's answer, setting up an equitable defence to the ejectment suit, were denied. Browning, on motion of Chrisman, was ruled to give security for costs. He was allowed by the court to file an answer in the original cause. Afterwards Chrisman filed a motion setting forth that the suit of Dickerson against himself was an action of ejectment; that he set up an equitable defence thereto, and praying that a decree of title be made in his favor, and that Browning might be made a party; that Browning, upon this application, was made a party; that a decree of title was made in favor of said Chrisman, which was affirmed on appeal to the supreme court; that said Browning was not and is not a necessary party; and praying the court to set aside the judgment or decree as to said Browning, and strike his name out as a party, leaving the judgment in full force against Dickerson. The court sustained this motion, the judgment as to Browning was set aside, “the case left open for Browning to pursue any remedy he may have against Chrisman as though he had never been a party to the original suit of ejectment instituted by Dickerson against Chrisman.” The court dismissed the petition of Browning. This constitutes the action complained of. During the pendency of these proceedings a change of venue was taken to Howard county.

White, for plaintiff in error.

I. It was not for Chrisman to say...