ing the collection of a judgment at law. Injunction May Term, allowed. The facts are, that one Epps, now deceased, sold to one Shookman, now deceased, the one undivided half of a canal boat, representing said boat, at the time, as clear of all incumbrance, taking Shookman's note for 110 dollars, the price of said half of the boat, and putting him into possession. Epps has sued on said note at law, and obtained judgment. It turns out that the boat was incumbered by liens to an amount beyond its value, upon some of which it has been attached. The Court below enjoined the collection of said judgment at law till said liens should be removed. The suit is continued between the administrators of the deceased parties. Buell v. Tate, 7 Blackf. 55, was a suit upon a promissory note, given for a part of the purchase-money of certain real estate. An incumbrance upon the real estate, at the time of the giving of the note, was pleaded in bar. As there had been no eviction, nor payment of the incumbrance, the plea was held bad, and the judgment for the amount of the note affirmed; but the Court adds, that "though the defendant can not defend this action by simply showing the existence of the incumbrance, yet if it exceed in amount the stipulated price of the land, or that part of it still due from the defendant, he may resort to a Court of Equity for relief, and procure an injunction against the collection of the debt, until the mortgagor shall reduce the incumbrance to an amount not exceeding that of the purchase-money due." This case was recognized in Oldfield v. Stevenson, 1 Ind. R. 153. It is implied in the above extract, that when the judgment-plaintiff has reduced the incumbrances to an amount not exceeding the judgment, the judgment-defendant may pay that sum on the incumbrances, and have the payment applied in satisfaction of the judgment. We see no difference in principle between Buell v. Tate, supra, and the case now under consideration, and we regard the rule it lays down equally as applicable to one as the other. It is true, one of the cases related to real and 1854. POE DECKER. 1854. May Term, the other to personal property; but the law authorized liens upon both in favor of persons not in possession, and the same equities seem to us to exist in the one case as in the other. LEWIS V. RICHEY. Per Curiam.-The decree is affirmed with costs. J. R. Slack, for the plaintiff. J. R. Coffroth, for the defendant. Tuesday, LEWIS and Another v. RICHEY. The amendment of a bill of foreclosure, by inserting the averment required by the R. S. 1843 as to whether any and what proceedings had been had at law, entitled the defendant to a continuance. A bill to foreclose a mortgage given by way of indemnity, did not allege that the mortgagee had been compelled to pay any money, or had been otherwise damnified. Held, that the bill exhibited no ground for relief. APPEAL from the Boone Circuit Court. Per Curiam.-Bill to foreclose a mortgage. Demurrer to the bill because it did not contain an averment as to whether proceedings had, or not, been had at law. Amendment by the insertion of the averment. Motion for a continuance on account thereof overruled, and decree for the complainant. The continuance should have been granted. Edwards v. Hough, ante, p. 149. The mortgage was one of indemnity, and the bill did not aver that the mortgagee had been compelled to pay any money, or had been in any way damnified. It therefore showed no ground for relief upon the mortgage. The decree is reversed with costs. Cause remanded, &c. H. and I. Brown, for the appellee. THE MICHIGAN CENTRAL RAILROAD COMPANY AND THE APPEAL from the Laporte Circuit Court. Per Curiam.-This was a bill by Long against the railroad companies above named, praying a temporary and final injunction restraining said companies from constructing their road through his homestead. The bill alleged a case of emergency as an excuse for not giving notice. A temporary injunction was granted by the circuit judge. Appeal from the grant. There is no brief in the record. We have looked through the bill, and think it made a case for a temporary injunction. Whether it would be perpetuated on the final hearing, it is not necessary now to inquire. The only question at present, is, did the bill make a case for a temporary injunction? The decree is affirmed with costs. A. L. Osborn, for the appellants. J. B. Niles, for the appellee. May Term, 1854. EVANS V. EWING. Tuesday, May 30. EVANS v. EWING and Others. CERTIFIED from the Knox Circuit Court. Tuesday, Per Curiam.—This is an original chancery suit, certified May 30. to this Court from the Knox Circuit Court. It appears that many years ago, John Ewing, being largely indebted to certain persons in the eastern states, conveyed real estate situated in Vincennes, in this state, to trustees, to hold as security for, and to sell to realize payment of said indebtedness. This is a bill to enforce a sale to make the money. Ewing is made a party, and defends, setting up payment, &c. He has been in the occupancy of the property, enjoyed the rents and profits, paid the taxes, made some improvements, &c. May Term, 1854. HUNT V. GUARD. Many of the original parties concerned are dead. The accounts have not been kept, the matters involved are complicated, and must, to some extent, remain, perhaps forever, in doubt. After a careful examination of the pleadings and evidence, voluminous as they are, we are unable to do anything more satisfactory to our own minds than to take the implied admission of Ewing in September, 1839, that there was then unpaid 2,700 dollars; which, with interest for fourteen years and eight months, amounts to 5,076 dollars; for which a decree will be rendered, and that the property be sold, in thirty days, to make said sum, the money to be distributed as hereinafter directed. This decree may, perhaps, do injustice to the creditors, and any decree that we might make in the confused state of the case, possibly would operate hardly upon some of the parties. We have done the best we are able. The case has been pending twenty-one years in Court. It has become of age, and it is with great satisfaction that we relinquish our authority over it, and resign it to its freedom. A decree was rendered in accordance with the foregoing opinion. S. Judah, J. Law, and A. T. Ellis, for the complainant. Wednesday, HUNT v. GUARD. ERROR to the Dearborn Circuit Court. DAVISON, J.-Guard sued Hunt in assumpsit before a justice of the peace. The following account and agreement were filed, as the cause of action: "Jesse Hunt to David Guard, Dr. To dividend on 20 shares of bank stock of the Lawrenceburgh branch of the state bank of Indiana, transferred to Hunt on the 2d of October, 1841,..... $27 60 "Interest thereon from the 1st of November, 1841, 12 50 $40 10 "We, the undersigned, agree to take stock in the Lawrenceburgh bank, now owned by David Guard, provided 10,000 dollars are taken, to the amount set opposite our names; the same to be taken at 50 dollars per share; the purchaser receiving the dividend from the day of sale; the payment to be made by assuming Guard's debt in the bank on accommodation paper to the amount of the stock taken. [Signed] A. P. Hubbs, 20 shares, $1,000. Jesse Hunt, 20 shares, $1,000. J. S. Ferris, 20 shares, $1,000. H. K. Hobbs, 20 shares, $1,000. John Callahan, Lewis, Comegys, John Wymond, D. S. Major." The justice gave judgment for Guard. Hunt appealed. In the Circuit Court, Hunt, by leave, &c., filed two pleas: 1. Non assumpsit. 2. Non assumpsit within six years. Replication in denial of the second plea. The Court tried the issues, and found for the plaintiff below. Motion for a new trial overruled, and judgment on the finding of the Court. The facts of this case, as they appear by the evidence, are these: Guard being largely indebted to the branch bank at Lawrenceburgh, the directors of that branch passed a resolution, wherein they proposed to take certain stock held by him in the bank, in trust, to sell and apply the proceeds thereof to the discharge of his indebtment. The agreement above recited was gotten up by the bank, in order to ascertain what amount of his stock could be disposed of. After this Hunt bought twenty shares of Guard's stock. The time of the purchase is not shown; but the shares were on the 2d of October, 1841, transferred to him on the books of the bank. The evidence tends to show that by the terms of Hunt's purchase, he was to receive dividends only from the day the stock was transferred. On the 31st of October, 1841, a dividend of 34 dollars and 50 cents was declared on said stock, the whole of which was on that day paid to Hunt, though five-sixths of it had May Term, 1854. HUNT V. GUARD. |