Jones v. Vert
| Decision Date | 23 November 1889 |
| Docket Number | 13,875 |
| Citation | 22 N.E. 882,121 Ind. 140 |
| Parties | Jones v. Vert et al |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
The judgment is reversed with costs.
W Garver, F. B. Pfaff, R. R. Stephenson and W. R. Fertig, for appellant.
J. I Little and D. W. McKee, for appellees.
This was an action by Sally D. Jones against John Vert, and others, heirs of William Vert, deceased, to enforce and foreclose a vendor's lien on real estate for unpaid purchase-money due the plaintiff from the estate of William Vert.
The defence was predicated upon the following facts which were set up by way of answer: In 1885, Sophia Sterne commenced a suit in the Hamilton Circuit Court to foreclose a mortgage theretofore executed by William Vert and wife, covering the real estate against which the plaintiff was seeking to enforce a vendor's lien. The plaintiff, as well as the defendants in the present action, was made a party defendant to the foreclosure suit. The plaintiff appeared to the action and answered, setting up the lien which she is now seeking to enforce. It is alleged that the court gave judgment against Sophia Sterne in the foreclosure suit, and also entered a decree quieting the title of the defendants to the real estate described in the complaint against all the parties to the suit except John W. Hannah, who held a mortgage on the land which, upon his cross-complaint, was foreclosed. The foregoing facts were held to constitute a good defence of former adjudication as against the appellant, Mrs. Jones.
The facts pleaded fall far short of making a good defence.
It is undoubtedly true that a judgment in a foreclosure suit, or in a suit to quiet title, is conclusive of any claim or title adverse to the plaintiff in that case, as against all who were made parties; and this is so whether the adverse interests, or titles, of the defendants are specially set up or not. Adair v. Mergentheim, 114 Ind. 303, 16 N.E. 603; Barton v. Anderson, 104 Ind. 578, 4 N.E. 420.
But this rule applies only between parties, and others in privity with them, and does not preclude those who were strangers to the controversy in which the judgment was rendered from again bringing the same matter in contest. "It is generally put in the books that the plaintiff must be not only the same person, but he must be suing in the same right." McBurnie v. Seaton, 111 Ind. 56, 12 N.E. 101.
In actions in personam, the doctrine of former adjudication is limited to parties and privies; and by parties will be understood parties to the issue on which the judgment was pronounced. The party who invokes the doctrine of former adjudication must be one who tendered to the other an issue to which the latter could have demurred, or pleaded. Harvey v. Osborn, 55 Ind. 535.
Where one of two defendants makes an issue with the plaintiff, a judgment settling the issue so made in favor of the defendant does not determine the question between co-defendants. Leaman v. Sample, 91 Ind. 236; Gipson v. Ogden, 100 Ind. 20.
"The thing demanded must be the same, the demand must be founded upon the same cause of action, the demand must be between the same parties and found by them against each other in the same quality." Wells Res Adjudicata, section 14.
Ordinarily four things must concur before the principles of res adjudicata can be invoked: 1. A suit. 2. A final judgment. 3. Identity...
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