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Browning et al. v. Smith et al.

suit such as this, and were this a direct attack by appeal, the variance is an amendable one, and would be deemed amended.

In City of Terre Haute v. Beach, 96 Ind. 143, it was held that a complaint for an injunction, showing that no petition was ever presented to the board of commissioners for annexation of the territory described in the order of annexation, but that the only petition ever presented described other lands, supplied no grounds for an injunction. "Where there is jurisdiction no irregularities or errors will render the proceeding void, and it is only void proceedings that can be collaterally assailed."

In Krewson v. Cloud, 45 Ind. 273, the court say: "Where the attention of the court below has not been called to a discrepancy between the allegations of a complaint and the proof, the objection can not be made for the first time in the Supreme Court. And where the discrepancy is, that real estate is described in the complaint as lying in 'range 13 west,' when the proof shows it to be in 'range 13 east,' the Supreme Court will regard the pleading as amended."

In Doe on Demise v. Smith, 1 Ind. 451, the complaint for partition of the west half of the southeast quarter, etc., misdescribed it as the west half of the northeast quarter. Subsequent proceedings described the property correctly. The court said "these defects might have been, and probably were, remedied by proof," and the court held that the title derived under the partition suit could not be impeached collaterally.

Morris v. Stewart, 14 Ind. 334, is a case of similar variance in description of land sold in a guardian's proceeding, and supports the same doctrine. It is the law that where the proof varies from the averment, the pleading being amendable below, it will be considered as amended in the Supreme Court. Cleveland v. Roberts,

Browning et al. v. Smith et al.

14 Ind. 511; Singer Mfg. Co. v. Doxey, 65 Ind. 65; Bristol Hydraulic Co. v. Boyer, 67 Ind. 236; Davis v. Doherty, 69 Ind. 11; Carver v. Carver, 53 Ind. 241; Brownlee v. Kenneipp, 41 Ind. 216; Estep v. Estep, 23 Ind. 114; Ebersole v. Redding, 22 Ind. 232; Case v. Wandel, 16 Ind. 459.

The remaining question for consideration is whether the omission of the owner of the equity of redemption as a party to the McWhinney suit would prevent the decree in that case from operating to bar and foreclose Browning & Sloan, who were parties, and who were decreed to be barred and foreclosed. And, in this connection also, whether, in a collateral attack by parties to the record in the McWhinney suit, the validity of the decree in that cause may be impeached by evidence dehors the record, showing that the owner of the equity of redemption was not a party, the record disclosing no such defect of parties.

There are three propositions of law insisisted upon by the appellees as controlling and conclusive of the question:

1st. That the decree in the McWhinney suit barring and foreclosing Browning & Sloan is valid and binding as to them, although the owner of the equity of redemption was not a party to the suit.

2d. The objection that the owner of the equity of redemption was not a party to the McWhinney suit, could only be taken in that cause (not in a collateral suit), and then only by demurrer (if the defect of parties appeared on the face of the complaint, which it did not), or by answer, and not being so taken, the objection was waived.

3d. The validity and effect of the decree in the McWhinney suit can not be questioned by parties to it in a collateral suit, no matter how erroneous, and it is only

Browning et al. v. Smith et al.

the omitted owner of the equity who did not have his "day in court" who is not concluded.

In Jones on Mortgages (4th ed.), volume 2, section 1679, it is said "if the owner of the equity has, through mistake, not been made a party, the mortgagee who has purchased at the sale may maintain a second action to foreclose the equity of such owner. The fore

closure is valid as against those who were made parties to the proceeding." In section 1678, the author says: "The purchasers' title under an invalid sale is good against all except the mortgagor and those claiming under him. [i. e., except against the owner of the equity.] The current of authorities agrees that a foreclosure sale, where the owner of the equity of redemption is not a party to the suit, 'is binding upon the parties who have been brought into the action.'" Wiltsie on Mortgage Foreclosures, 1st ed., p. 88. In Martin v. Noble, 29 Ind. 216, the owner of the equity of redemption was not served with process, and was therefore not a party. He died, leaving his widow his sole heir. Supplemental complaint was then filed with no process on it as to the widow. The owner of the land was never brought into court. The court held the proceedings ineffectual as to the widow as owner of the land, but binding on all other defendants, of whom there were about one-half dozen who were lienholders by mortgage or tax claims, etc. The court say, p. 219: "The question is therefore resolved in favor of the appellant Mrs. West (the widow), but we are not of the opinion that any other of the parties can avail themselves of the error." In Curtis v. Gooding, 99 Ind. 45, the facts were that John C. Curtis made a mortgage. He then conveyed the land to James B. Curtis and Carrie Curtis, husband and wife, who took as tenants by entireties. The mortgage was VOL. 139-19

Browning et al. v. Smith et al.

foreclosed as to John C. and James B. Curtis, but Carrie was not a party. A second suit was brought on the mortgage to foreclose against Carrie. The court said, p. 48: "It is true that a decree is valid as to the parties served with process (i. e., John C. and James B.)," but from this it can not be inferred that it is valid as to persons not served, for no man who has not had his day in court is bound by the decree." The converse is that a man having his day in court is bound.

The court says, p. 49:

"In a suit to foreclose an equity of redemption not reached by a suit upon the same mortgage, it is not necessary to make persons parties whose rights were fully adjudicated by the first decree, for all that the second decree can properly do is to foreclose the equity of the person not a party to the original suit."

On page 47, the court said, making persons parties to the second suit who were parties to a former suit, would be "twice vexing them about the same cause of action,' which would be improper.

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Section 343, R. S. 1881, provides that the objection that the owner of the equity of redemption was not made a party to the original suit, could only be taken advantage of in that cause by demurrer or by answer, and not having been so taken, all objection was waived.

"Ob

In 3 Jones on Mortgs., section 1410, it is said: jection that the owner of the equity is not made a party to the bill, may be taken by the mortgagor in his anAn objection to the nonjoinder of a defendant must be taken by demurrer or answer, or will be deemed to have been waived."

swer.

Wiltsie Mortgage Foreclosures (1st ed.), p. 91, thus declares the rule: "If the owner of the equity of redemption is omitted as a defendant, the mortgagor or any other party interested in the action may object to it

Browning et al. v. Smith et al.

by demurrer if the defect appears on the face of the complaint, or by answer, if the defect does not so appear; if objection is not taken, the defect will be deemed waived."

In Citizens' State Bank, etc., v. Adams, 91 Ind. 280 (285), itis said: "The appellant claims that the cross-complaint (to foreclose a mortgage) was insufficient because Ira B. Adams (the owner of the mortgaged property) was not a party to it. There was no demurrer for defect of parties. Defect of parties may be tested either by demurrer or answer. Failing

to take advantage of it in either way was a waiver of such defect."

In Binkley v. Forkner, 117 Ind. 176, another mortgage case, the same familiar rule was applied. The facts, in brief, were these: Kemper bought land and gave a purchase-money mortgage to Eckert Bros. Before purchasing the land he bought an engine and machinery of Hadley, Wright & Co., and gave them a chattel mortgage on it. He then annexed the engine and machinery to the land. Kemper thereupon executed a second real estate mortgage on the land to Forkner to secure a debt to the Dubois County bank. Binkley became assignee of Hadley, Wright & Co.'s chattel mortgage claim, and brought suit against the Eckerts (the holders of the first real estate mortgage), and the Dubois County bank (who held the debt secured by the second real estate mortgage). Kemper, the owner of the land, as well as of the engine and machinery, was not a party to the action. The suit was simply between mortgagees.

The court say, on page 187: "Some suggestions are made in the briefs * in respect to a defect of parties. The length of the opinion forbids that we should notice these further than to say they do not involve any

error.

No objection pertaining to the alleged

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