Jones v. Vert

• Decision Date: 23 November 1889
• Citation: 22 N.E. 882,121 Ind. 140
• Parties: Jones v. Vert et al.
• Court: Indiana Supreme Court

121 Ind. 140

22 N.E. 882

Jones

v.Vert et al.

Supreme Court of Indiana.

Nov. 23, 1889.

Appeal from circuit court, Hamilton county; D. Moss, Judge.

Garver & Pfaff and Stephenson & Fertig, for appellant. Little & McKee, for appellees.

Mitchell, J.

This was an action by Sallie 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 defense was predicated on 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, were made parties 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 defense of former adjudication as against the appellant, Mrs. Jones.

The facts pleaded fall far short of making a good defense. 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. Rep. 603; Barton v. Anderson, 104 Ind. 578, 4 N. E. Rep. 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. Rep. 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 others an issue to which the latter could have demurred or pleaded. Harvey v. Osborn, 55 Ind. 535. Where one of the 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...