Gaskill v. Moore

Mr. Justice Heydeneeldt delivered the opinion of the ''"'ourt. Mr. Ch. J. Murray concurred. When this case was here before, we decided in favor of the enforcement of the plaintiff’s lien. If our [235] attention had been * directed to the pleadings, we could not have hesitated to disregard all of the defenses which are attempted to be set up. The answér is a simple denial of the allegations of the bill, while the questions argued at the Bar are all of matters in avoidance. The only new question argued upon this appeal, is upon the assignment of error, that the Court below, in its decree, does not ascertain the precise nature of the interest to be sold. This objection is not valid. The interest to be sold is the leasehold estate of Trainer, and that is sufficiently ascertained by the lease, which is referred to and described in the decree of the Court. Nor can it be properly said, as is contended by the appellant, that Moore has an interest in the estate which is condemned, on account of improvements which he put upon the property, under his subsequent contract with Trainer. If he obtained a surrender of the lease from Trainer, the effect of it was only to make him bear the same relation to Gaskill, in reference to the lien of the latter, as did Trainer; and, therefore, the improvements made by Moore can no more impair the rights of Gaskill than if they had been the improvements of Trainer, The decree is affirmed.