Janney v. Spedden

Holmes, Judge, delivered the opinion of the court. This was a petition for equitable relief, praying to have a judgment, a sale of real estate under the judgment, a sheriff’s deed to the purchaser at the sale, and a deed from the purchaser to a third person (one of the defendants), declared void, and that the plaintiff have restitution of the possession of the property sold. It appears that the plaintiff and one Adam Householder had bought certain lands of Robert R. Spedden, and given their two notes for the balance of the purchase money unpaid, and taken from the vendor a bond for a deed conveying the title when the notes should be fully paid ; that, the notes not being paid when due, the vendor brought suit in the Pettis Circuit Court against them, stating the sale, with a description of the lands sold, the notes given for the balance of the purchase money in accordance with the terms of the agreement, each for the sum of four thousand one hundred and eighty dollars, setting forth the terms of the agreement, allowing-credits for payments made on the notes, claiming a [400] ,vendor’s lien on the lands so sold, and praying for judgment for the balance found to be due,, and that the .said lands or so much thereof as might be necessary be ordered to be sold to satisfy and pay off said judgment,.and for other and proper relief. The petition alleged also that the defendant Janney was not a resident of this State. Personal service was had upon the other defendant, and an order of publication was taken .out against Janney (whereof publication was duly made), notifying him that a suit had been commenced against said defendant, the object and general nature of which was to obtain a judgment against them for the sum of four thousand six hundred and thirty-five dollars, with interest .thereon, and praying that thé lands mentioned in the petition (describing them specifically) be sold for the payment of said debt; and that unless he appear and answer at the term and day named, the petition would be taken as confessed and judgment rendered accordingly. The statute concerning practice in civil cases requires that the order of publication shall notify the non-resident of the commencement of the suit, and state briefly the object and general nature of the petition, and require him .to appear on the day named and answer the petition, or that the petition will be taken as confessed (R. C. 1855, p. 1224, § 18 ) ; and in case of non-residents having an interest in the subject matter of the petition whose names are unknown, the order shall moreover recite all allegations in relation to the interest of such unknown parties — ibid. § 16. It was one object and .the policy of this act, that .the absent party should be informed in this .manner of the object .and general- nature of the suit.against him, so that he might be enabled to determine whether or not he would make defence, or allow the petition to betaken.as confessed and judgment to be rendered against him on the cause of action stated in the petition, without incurring the expense of an.appearance and answer in case he had no defence to make. [401] An affidavit to the petition and a statement of credits allowed for the payments made were required for the same purpose. Now it appears further that the plaintiff, at the return term, the defendants not appearing, undertook to dismiss so much of his petition as asked for the enforcement of a vendor’s lien, and thereupon proceeded to take a general judgment for the amount due on the notes as if it had been a suit upon them as such, and under the execution awarded thereon he levied upon and sold other lands owned by the defendant Janney individually, upon which sale the sum of fifty dollars was realized; and it also appears that the defendant Janney has paid the whole amount of the judgment so rendered. There was no amendment'made at all. A dismissal of a suit is a total discontinuance thereof as to some one or all of the parties defendant. What the plaintiff proposed to do was to amend his petition; but no amended petition was filed. The judgment that was rendered' was not iipon the petition as filed, nor in pursuance of the relief prayed for therein, but, as the record shows, upon an imaginary petition and cause of action which had never been filed, and of which the defendant Janney had no notification whatever. Had h‘e actually seen the order of publication as published, he might have been willing to confess the cause of action therein stated, and to allow the lands therein described to be sold under the vendor’s lien, for the payment of the debt sued on, as prayed in the petition. Nothing of that kind was done, but something quite different, of which this order could give him no intimation. The error of confounding the dismissal of a suit with an amendment of a petition, or of rendering a judgment not warranted by the petition, might be a more proper subject of consideration on an appeal or writ of error in the case. But it is proper that the matter should be treated here as what it really was in the actual proceeding that was had in 'the court below, namely, an amended petition, at least, if not a petition dismissed ; and of such petition, and of the cause of action on which judgment was actually ren [402] dered, it must be held that the defendant had no notice whatever. The object and nature of the suit were wholly changed. The difference is not much less than it would have been if the suit had been dismissed and a new one commenced. We must hold that the judgment was utterly null and void as to him. It follows from this that the sheriff’s deed, upon the sale of his land under the execution, conveyed no title ; and the deed of the purchaser to the other defendant could convey no more title than he himself had. In reference to the possession, it is scarcely necessary to say that a bill in equity is not the proper remedy for the recovery of the possession of lands. The party has an adequate remedy at law by the action of ejectment or otherwise. The judgment and deeds being void in law, there was no occasion for this interference of a court of equity to set them aside and declare them void. No ground is shown in the petition for relief in equity. When there is an adequate and complete remedy at law, a court of equity will not interpose, unless , upon matters coming under some peculiar head of concurrent equity jurisdiction. The judgment should have been that the petition be dismissed. •The judgment will therefore be reversed, and the petition dismissed, at the cost of the plaintiff. Judge Wagner concurs; Judge Lovelace absent.