Brooke v. Jones & Oglesby

Hill, J. Where A borrows money and secures it by deed to real estate, and subsequently sells a part of the land to B, giving him bond for title, and delivers the purchase-money notes to the holder of the security deed, which notes are in excess of the debt secured by such deed, and where B sells to C a portion of the land he has purchased and gives bond for title, and the two subsequent purchasers bring a suit against A, and others, praying certain equitable relief, and a demurrer to the petition is filed, it is error, in advance of passing on the demurrer and before the issues as made by the answer of the defendants are finally determined, to order a sale of the entire tract of land and, in such order, adjudicate certain rights of one of the parties and leave open other issues made by the pleadings for the final judgment. Judgment reversed. All the Justices concur. Demurrers and answers were filed by the defendants. The answers raise several issues of fact as to the matters alleged. For instance, George W. Brooke denies the allegations as to the purpose for which the notes of Jones & Oglesby were indorsed and turned over to him, and sets out a different agreement. He further avers, that the Lowry National Bank agreed to collect the Bell notes and to look to them for the payment of the balance due it; and it had exclusive control of the notes, but refused to make the collection. Without having passed on the demurrers, and without any final determination of the issues of fact made by the pleadings, the judge passed an order directing a sale of the entire property in a specified manner, in which decree he undertook to adjudicate certain rights of the parties with respect to certain tracts of the land. To this decree the defendants excepted. J. P. Brooke and Finley & Henson, for plaintiffs in error. John T. Norris, contra.