Merritt v. Wells

Per Curiam. 1. The case of Kirk v. The Fort Wayne Gas Light Company, 13 Ind. 56, settles the point that the plaintiff in this case can sue, upon the state of facts appearing by the complaint. But: 2. Is it not manifest that there is a defect of parties defendant? These are, in short, the facts. Eli Allen sold and conveyed to Jeremiah S. Merritt a tract of land, taking the notes of the latter for the purchase-money. Bor the payment of that purchase-money, Allen had, by law, a lien on the land [172] in question against Merritt and purchasers from him with notice. Wells became such a purchaser of the land from Merritt. He purchased with notice that Allen had not been paid; because, at his purchase from Merritt, he expressly assumed to pay off the amount of Allen’s lien to him, by taking up the notes he held on Merritt; and he gave Merritt a mortgage on the land to secure the performance of his promise. But Wells has failed to pay Merritt’s notes to Allen, and Merritt seeks to foreclose the mortgage upon the default. A. J. Simpson, for appellant. James Collins, Alfred B. Collins, M. S. Mavity, for appellees. Now, it is plain that Allen should properly be made a party to the suit in order that the judgment in the case may direct the payment of the money in such manner, and among parties before the Court, that the judgment may bind all parties, and may be enforced against' all having interests, now ready for enforcement, in the land, and in its title,'and the proceeds of its sale. Otherwise, Merritt may get a judgment against Wells for the whole amount, and still, as Wells is a purchaser with notice, Allen may get a subsequent judgment against the land in his possession for the same amount. But the case is not before the Court. It appears by the transcript to have been dismissed, but no exception was taken. There is no bill of exceptions showing the reason of the dismissal. Again, the clerk only testifies to the transcript, that it contains what appellant’s attorney directed him to incorporate into it. What is meant by section 558 of the code which enacts,-that upon an appeal being taken, the clerk shall make out a transcript of the record, “ or so much thereof as the appellant in writing directs”? We decide nothing as to this point. The judgment is affirmed, with costs.