Holland v. Jones

• Citation: 9 Ind. 472
• Parties: Holland and Others v. Jones
• Decision Date: 28 November 1857
• Court: Indiana Supreme Court

9 Ind. 472

Holland and Others v. Jones

Supreme Court of Indiana

November 28, 1857

From the Lawrence Circuit Court.

The judgment is reversed with costs.

William T. Otto and Samuel W. Short, for appellants.

OPINION

Davison J.

This was an action by Jones against Holland, Proctor, and Critchlow, to recover certain real estate in Lawrence county. The issues were submitted to the Court, who found for the plaintiff. New trial refused, and judgment, etc.

The facts of this case are substantially these: One Austin Speer being the owner in fee simple of a lot of ground, which is the real estate in controversy, employed Jones to build a house on the lot. Jones built the house, and after its completion, viz., on the 10th of January 1852, he filed in the recorder's office of the proper county, a notice of lien for the amount of his work and labor in the building. In April, 1852, Jones instituted a suit in chancery in the Lawrence Circuit Court, to enforce the lien. At the spring term of the Court, the bill was taken as confessed against Speer, and a decree rendered that the building and interest of Speer in the lot should be sold to satisfy the lien. Under this decree the property was sold by the sheriff to Jones, who received a sheriff's deed pursuant to the sale. After Jones had filed his notice of lien, and before the institution of the chancery suit Holland was rightfully in possession of the lot, under a deed in fee simple to him from Speer, which deed was duly acknowledged and recorded in the office of the recorder of said county, within the time prescribed by law, and before the commencement of the suit to enforce the lien. Holland was not a party to that suit. Since he received his deed from Speer, he has been continuously in possession of the lot. Proctor and Critchlow are his, Holland's tenants.

As Holland was not a party to the suit to enforce the lien, it is insisted that the decree in that suit as to him and his title to the property in contest, was inoperative. The general rule is, that all persons whose interest will be affected by the decree should be made parties; otherwise they will not be bound by it. Piatt v. Oliver, 2 McLean 266; Bowman v. Wathen, 2 McLean 376; Milligan v. Milledge, 3 Cranch 220, note; Haines v. Beach, Johns. Ch. 459. Mr. Story says: "Where the mortgagor has conveyed his equity of redemption absolutely, the assignee only need be made a party to a bill to...