Secombe et al. v. Steele.

p. 363, sec. 91-p. 346, sec. 139-p. 361, secs. 76, 77; 2 Story's Eq. Jur., secs. 1049-'50-'51.)

II. That the title thus acquired was "by operation of law," or, in other words, by involuntary assignment; and therefore not even a decree thereafter passed against Taylor would have affected such title; his assigns, by operation of law, not being parties to the same. (Story Eq. Pl., sec. 342 and notes-sec. 351 and note; Sedgwick v. Cleaveland, 7 Paige, 290; Boring v. Lemmon, 5 H. and J., 225; Bennet v. Williams, 5 Ohio, 462; Deas v. Thom, 3 J. R., 543; Storm v. Davenport, 1 Sand. C. R., 135.)

III. That, by virtue of the title so acquired, the plaintiffs in error were subrogated to Taylor's rights in respect of the purchase-money, in the event of Steele's equity upon the lands being established. Therefore, they had an "adverse claim, estate, or interest," in the lands, which was to be "determined" in this suit. For the lands stood as security for the purchasemoney, and they holding the legal titles could not be decreed to convey, or otherwise be divested of the same, without their consent, except on payment of the purchase-money. (Moyer v. Hinman, 17 Barb. S. C. Rep., 137, and cases cited by the court in that case; Tomlinson v. Blackburn et al., 2 Iredell's Eq. Rep., p. 509, and cases then cited by the court.)

IV. In fact there was no decree even against Taylor. What is erroneously printed as part of the record, under title of "Copy of consent for decree," and "Copy of decree," never were part of the record, nor in this cause for any purpose. But if such decree, by consent, had been passed, it would have been, in effect, the mere act of the parties. It is for this reason that no rehearing or appeal lies in such case. (Webb v. Webb, 3 Swan, 368; Lansing v. Alb. Ins. Co., Hopk., 102; Bradish v. Gee, Amb., 229; Harrison v. Ramsey, 2 Ves., 288; Belt's Supp., 413.)

Disregarding these principles, the court below so proceeded as to debar these plaintiffs in error from setting up any "adverse claim, estate, or title," in these lands, whether by reason of defect in Steele's equity, or by way of holding the legal titles as security for the purchase-money; and this in a suit brought against them "to determine such adverse claim, estate, or title," and while their appeal was pending from the decree dismissing their petitions in the original suit between Taylor and Steele.

The special errors which have led to this result, and which are now assigned, are as follows:

1st. The Supreme Court of Minnesota erred, in that it did not reverse the order of the District Court in this suit, grant

Secombe et al. v. Steele.

ing the motion of the plaintiff, Steele, to strike out portions of the answer of Secombe, (by stipulation answering for all the defendants.)

a. The first, fourth, fifth, and eighth portions of the said answer, stricken out by the said order, were directly responsive to allegations contained in the plaintiff's complaint, tendering material issues necessary to be decided in order to the "determining the adverse claim, estate, or interest," of the defendants; for which purpose, only the action was authorized by statute, (ubi supra,) and even if not absolutely material, they were issues tendered by the plaintiff, and it was not for him to object that the defendants occupied the ground which he had opened.

b. The second portion of the said answer, so stricken out, tendered to the plaintiff a material issue. The action being "for the purpose of determining such adverse claim, estate, or interest," it is difficult to perceive how the defendants could be denied the right to show that the land which they had purchased was clear of the pretended equity of Steele. This portion of the answer was equivalent to a plea of non-performance of the conditions of the bond, and whether such plea was true or false, in fact, was the very matter to be tried. But the court refused to allow any such issue to be made.

c. The sixth and seventh portions, so stricken out, alleged fraud and collusion between Steele and Taylor, to defraud and defeat the creditors of Taylor, and purchasers at the sheriff's sale; and were therefore proper to be inquired into, in law and fact, as at once impeaching the plaintiff's alleged right, and fortifying the defendants' titles.

2d. The said court erred, in that they did not reverse the order and judgment of the District Court sustaining the demurrer to the residue of the defendants' answer.

a. The first special cause of demurrer assigned, is to the effect that the bond to convey, on conditions performed, vested such a title in Steele as absolutely precluded these plaintiff's in error from setting up any "adverse claim, estate, or title," in the land, whether as free of the pretended equity of Steele, or (conceding it) as security for the payment of the purchasemoney. This pretension is based upon the supposed effect of the recording of the bond. But it is evident that the record has no other effect than that of constructive notice of the contents of the bond.

b. The second cause assigned is, that the answer assumes that the title of Steele is founded upon the proceedings in equity; whereas, the demurrer asserts that it is wholly independent of that suit. This is shown to be erroneous, if the principles hereinbefore asserted are correct. Although Steele's

Secombe et al. v. Steele.

alleged equity was founded on the bond, his right to the lands upon which the plaintiffs in error held this "adverse claim, estate, or interest," was not determined, unless it was determined in that suit. And if they had such "adverse claim, estate, or interest," it is evident that there was never any adjudication thereon, since they were dismissed from that suit, and their appeal from that decree was still pending.

c. The third cause assigned is, that whereas the answer sets up that there was no decree as against Taylor, yet it appears from the "paper-book," exhibited with the answer, that there was such a decree. But it will be observed that it is only certain specified papers which are referred to in the answer, and reference is made to the paper-book for true copies of these only. Besides, it has already been shown that this was only the form of a decred, not signed or enrolled; and that even if it had been signed or enrolled, it was by consent, and is only the act of the parties; and that it could not affect the "adverse claim, estate, or interest," of the plaintiffs in error, which was the subject-matter of this suit.

The counsel for the defendant in error maintained the following propositions:

1. The agreement between Steele and Taylor for the sale of the land was a bona fide and fair transaction, and is unimpeached, and constituted a valid lien upon said land, and Steele's interest therein was unaffected by the purchase of Secombe and others.

2. That Steele performed the agreement on his part, and the title in him became complete upon the execution of the deeds to him by Taylor.

3. That Steele paid Taylor the full face of the agreement is not denied, but is admitted by the pleadings and proved by the record attached to the defendants' answer, and especially by their petitions to share in the money paid into court by Steele for Taylor.

4. That the deeds from Taylor to Steele conform to the terms of the agreement and the requirement of the decree.

5. Under the decree, the title was perfect without the execution of the deeds.

6. The pleadings in the equity case, and also in this suit, show facts upon which a court of equity would compel a performance by Taylor of his agreement to convey to Steele.

7. That at the time of the sheriff's sales, under which the defendants claim, Taylor had no estates in the land which he could have transferred, the land belonging to Steele, and the purchase-money to Taylor, the claim of the latter upon the

Secombe et al. v. Steele.

land being that of security for the payment of the purchase

money.

8. The answers of the defendants present no material issuable facts.

9. That there is nothing before this court except the questions arising upon the answers after being amended by the order of the court, the final judgment being upon the remaining portions of the answer.

10. That the decree in the suit between Steele and Taylor cannot be impeached collaterally, but only by direct proceedings.

11. That the defendants had no right to intervene in the equity suit.

12. No appeal will lie from the motion to strike out portions of the defendants' answers.

13. Every material fact to show the right of Steele to the land is admitted in this case, and no fact set up in the answers shows any right in the defendants.

14. From the admitted facts in this case, if Taylor had conveyed to the defendants, instead of to Steele, the latter, on the performance of the agreement now shown by him, could have compelled them to convey to him.

Mr. Justice CAMPBELL delivered the opinion of the court. This cause comes before this court upon a writ of error to the Supreme Court of the Territory of Minnesota.

The defendant in this court (Steele) instituted a suit in the District Court of Ramsey county, Minnesota Territory, against fifty-four defendants, to determine the validity of their "claim, "estate," or "interest," in certain real property at St. Anthony's Falls, in that county, of which he was possessed, and in which he claimed to have an estate in fee simple, under certain conveyances, which are appended to his complaint. This complaint shows that, in 1849, the plaintiff and Arnold W. Taylor were tenants in common of a parcel of land which includes the property in dispute, and so occupied it until 1852. A portion was laid off into town lots, some of which were sold; expensive mills and other improvements were projected and partially completed on it; and controversies arose, and suits were pending between them, when the parties, in January, 1852, came to an agreement of sale. By this agreement, Taylor contracted to sell to the plaintiff his interest in the real property unsold, and the money and securities taken for the lots sold, for the sum of twenty-five thousand dollars, and upon the condition that the plaintiff should acquit him from the payment of a certain demand, and assume his liabilities on

Secombe et al. v. Steele.

certain contracts for labor and building materials. Of this sum, one thousand dollars were to be paid presently, and the remainder was to be paid in sixty days from the date, at the Merchants' or Suffolk Bank, at Boston, and a certificate of deposit furnished to Taylor at St. Anthony's Falls; and in case of a default, the deposit of one thousand dollars was to be a forfeit. But if the payment was made in the manner stipulated, conveyances were to be executed by Taylor; and meanwhile he was to remain in the possession of the mill. The conveyances referred to in these articles were not executed until May, 1853, and purport to have been made in obedience to a decree of the District Court of Ramsey county, in a suit commenced by Steele against Taylor.

The complaint of Steele against the fifty-four defendants is, that they claimed an "estate," "interest," or "right," in that property, have from time to time declared that they were owners thereof, and have executed conveyances for a portion, and offer to sell or dispose of other parts, contrary to the right of the plaintiff.

The object of the suit is, to relieve the title of the plaintiff from the mischief of these adverse claims; to quiet his possession by means of a decretal order requiring the defendants to release them, or, in case of their failure to do so, that the judg ment of the court may stand and be recorded in its stead. This proceeding is authorized by the revised statutes of Minnesota, ch. 74, sec. 1.

The twelve persons who are plaintiffs in this court, and were defendants in the District Court, appeared there, and severally claimed title to parcels of land included in the conveyances of Taylor to the plaintiff. Their claims respectively rest upon the facts, that between November, 1852, and April, 1853, judgments were rendered against Taylor in the District Court, upon which executions issued, and levies and sales were made of those parcels before May, 1853, in the regular course of judicial proceeding. At these sales the defendants were either purchasers or derive title from such persons.

The defendants aver that their title is paramount to that of the plaintiff; for that the plaintiff is not entitled to any benefit from the articles of agreement executed by Taylor, in January, 1852, and then recorded, because he failed to comply with the obligation to pay twenty-four thousand dollars as agreed to by him.

And to avoid the recitals in the deeds, to the effect that they were executed under a decretal order of the court, they say that in May, 1852, the plaintiff filed a bill in the District Court, to compel Taylor to a specific performance of the contract of