# Doe v. Carpenter/Opinion of the Court

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* Dissenting Opinion Campbell
United States Supreme Court
59 U.S. 297
Doe v. Carpenter
This is a writ of error to the circuit court of the United States for the district of Indiana.
The suit in the court below was an action of ejectment by the plaintiffs to recover the possession of certain town lots in the city of Lamasco. They proved on the trial, that their father, James B. McCall, was the owner of an undivided fourth of a certain part of said city, and had been in the possession of the same, and died in 1840; and that they were his heirs at law.
The defendants set up, in bar of the action, certain proceedings in partition, embracing the premises in question, in the circuit court of the fourth judicial district of Indiana.
The bill in partition was filed by the tenants in common of the town lots with McCall in his lifetime, against his children and heirs, the present plaintiffs. The two sons were non-residents of the State, at the time, and did not appear or answer to the bill. The daughter was a resident of the State, and was served personally with the subpoena. She and the younger brother were under age, for whom guardians ad litem were appointed to the court.
The bill, after setting out the interests of the respective tenants in common, and that partition had been agreed upon between them, describing particularly the manner in which the partition was to be made, and the portions assigned to each in the arrangement, charges, that after the agreement, J. B. McCall sold and conveyed all his undivided interest, to wit, one undivided fourth part of the town property, to Hugh Stewart for the sum of $11,500, and that shortly afterwards, and before he executed deeds of partition, according to the agreement, departed this life, leaving three children, his heirs at law, James B. McCall, non-resident of this State, and Henry McCall, also a non-resident, and Mary S. McCall, who are infants under the age of twenty-one years. The bill further charges, that the several proprietors, including Stewart, the grantee of McCall, had already interchanged deeds of partition, according to the agreement, or were ready to do so; and that they were ready to execute to the heirs deeds of all their right to subdivision No. 3 and 6 of the southeast quarter of section twenty-three, in town, 6, and of all other portions to which the heirs were entitled; and then closes by stating, that, inasmuch as your orators are unable to obtain relief in the premises, except by an interposition of the court of chancery, they, for the purpose of perfecting their several titles to their respective portions of said property, pursuant to the agreement in partition, pray that the heirs be made defendants; that a guardian ad litem be appointed for the two infant heirs, that they may answer the bill; and if the same should be found true, that the court would appoint three commissioners to make deeds of partition, &c.
The bill was taken as confessed against the adult heir, and against the others upon the answer put in by the guardian; no proof, for aught that appears, having been given. The court decreed that the prayer of the complainants be granted; and that C. D. Bourne, C. Baker, and J. E. Blythe be commissioners to make deeds, &c., to the complainants, agreeably to the partition mentioned in the bill, and pursuant to, and agreeable with the said sale and conveyance made by James B. McCall, deceased, of his undivided interest in said town property, to the complainant, Hugh Stewart.
Deeds were executed in pursuance of the directions in the decree, and reported to the court and confirmed.
It appeared that McCall, besides being a joint owner in the town property which he had conveyed to Stewart, also owned, jointly with the complainants, (except Stewart,) one fourth of the southeast quarter of section No. 23, township 6, adjoining the town, and which descended to his heirs and was embraced in the bill of partition.
The counsel for the plaintiffs, when this record of partition was offered in evidence by the defendants, objected to the admission, on the ground that the decree was void for want of jurisdiction of the court; and also for fraud apparent on the face of the proceedings. The objection was overruled. It appeared that the defendants claim title from Stewart, the grantee of McCall.
They then rested, and the counsel for the plaintiffs then produced and read the conveyance from their father to Stewart mentioned in the bill of partition, and offered to prove that the conveyance was obtained by fraud on the part of Stewart, and also, that, at the time of its execution, their father was of unsound mind and incapable of making a valid contract; that said unsoundness was well known to Stewart, and that he took advantage of it in obtaining the deed; that the consideration of $11,500 mentioned was never paid, that $6,000 in depreciated state scrip was all that was ever paid or agreed to be paid, and that the defendants purchased of Stewart with full knowledge of all the facts; that the real estate purported to be conveyed by the deed was worth at the time at least $20,000.
To all which evidence the defendant's counsel objected, on the sole ground that the plaintiffs were barred by the record of the proceedings in partition, which objection was sustained by the court, and the evidence excluded.
The jury, under the direction of the court, rendered a verdict for the defendants.
We think the court erred in excluding this evidence.
The binding effect of the decree, in the chancery suit, is sought to be maintained upon the ground that the proceedings were instituted not only for the purpose of making partition, but also to quiet the title between the parties, and especially the title of Stewart under the conveyance from McCall, and that the children and heirs were made parties for this reason, and that the proceedings, in this aspect, being in the nature of proceedings in rem, would operate upon the title and bind the heirs, whether they appeared or not, if notice had been given in conformity with the statute or law of the State.
But we think the obvious answer to this view is, that the bill has not been framed in any such aspect, or for any such purpose, either in the body of it or in the prayer. There is no suggestion of any imperfection in the title of Stewart, under the deed of McCall, or of any imputation or questioning of the genineness or validity of it; nor does the prayer ask for a decree to confirm the deed or the title to Stewart.
The only pretext for the ground now taken to bind the heirs, is in the allegation as follows, namely: 'As your orators are unable to obtain relief in the premises, except by the interposition of a court of chancery, they, for the purpose of perfecting their several titles to the respective portions of said property, agreeably with and in pursuance of said agreement of partition, would respectively pray, &c.,' and then follows the prayer for partition.
Now, it is manifest that this allegation refers simply to the subject of providing for the mutual releases or conveyances of the joint interest in the property, so that each might become vested, severally, with the title to his respective share, and nothing beyond this, as is further evinced by the prayer of the bill, which is, that if the allegations in the bill should be found true, not that Stewart should be quieted in his title under McCall, but that three commissioners be appointed to make the partition, &c. So in respect to the decree. It simply orders that the prayer of the bill of the complainants be granted, appoints the commissioners, and directs them to make the partition, by the execution of the deeds of conveyance, release, and partition to the complainants, according to their respective rights, &c.
The deeds of the commissioners have also been referred to as helping out the binding effect claimed for these proceedings.
The deed of the commissioners to Stewart may be taken as a sample of all of them. It recites their appointment, the object of it, to wit, execute the partition deeds, &c., and adds: 'and to perfect the title of said Hugh Stewart to the interest heretofore conveyed to him in said property, by the said McCall in his lifetime,'-they then go on and convey 'all the right, title and interest, claim and demand whatsoever of the said James B. McCall, deceased, at the time of his death, and of his heirs, naming the three defendants, since his decease, or at any other time, and of all or any other heirs or heir whatsoever, of the said James B. McCall, deceased,' &c.; seeking to bind those not made defendants as well as those who were.
The answer to all these recitals is, that they have no binding force or effect beyond what is derived from the decree of the court appointing the commissioners; and as that simply conferred authority on them to execute mutual conveyances and releases for the purpose of making partition between the parties, any recital going beyond this is nugatory. Neither should the simple confirmation of the deeds by the court be construed as intending to go beyond the terms and directions of the decree.
The case, then, is brought down to the question, so far as the effect and operation of the chancery suit are concerned, whether or not these defendants are estopped by the decree from impeaching the deed of their father to Stewart. And, in respect to this question, we may concede that, for the purposes of partition, the court, under the statute and law of Indiana, had jurisdiction of the subject-matter and were competent to make the partition.
The point is, whether or not the right of the plaintiffs to impeach this deed was involved in these proceedings, so as to be deemed res judicata, and all further examination or inquiry foreclosed.
As we have already seen, the question as to its validity was not presented upon the pleadings in that suit, nor did it become the subject of inquiry or examination in the course of the proceeding, nor did it enter into the decree of the court in the determination of the case. And the better opinion is, that no such question could have been raised by the defendants in that proceeding, if they had sought to invalidate the deed. The most that the court would have been justified in doing, in the usual course of proceeding, would have been to have stayed the suit in partition till the question could have been settled at law. The proceedings in partition are not appropriate for a litigation between parties in respect to the title.
As to the binding effect of judgments or decrees, the general rule is, that the judgments of courts of concurrent jurisdiction are not admissible in a subsequent suit, unless they are upon the same matter, and directly on the point; when the same matter is directly in question, and the judgment in the former suit upon the point, it will then be as a plea, a bar, or as evidence, conclusive between the parties. 2 Phillips Ev. 13. So a judgment is conclusive upon a matter legitimately within the issue, and necessarily involved in the decision. 4 Cow. 559; 8 Wend. 9; C. & H. notes, part 2, note 22.
Testing the case by this principle, it seems quite clear that the proceedings in partition constituted no defence to this action; no question was made upon the deed by the pleadings, nor any judgment given upon it; nor was any such question necessarily involved in the partition suit.
Besides, two of the defendants, plaintiffs here, were non-residents of the State, and neither appeared, nor were served personally with process. As to them, the proceedings were purely in rem, and the decree acted only upon the res or subject-matter. And, as to the subject-matter, the bill on its face shows, that these two plaintiffs had no interest in or connection with the partition, except as respected the southeast quarter of section twenty-three. This tract was not included in the deed to Stewart, and of course descended to the heirs. Being tenants in common with the complainants, the decree of partition might operate upon it and bind them. But, as to the premises now in dispute it could have no effect, as it appears, by the averment of complainants themselves, the defendants had no interest in it. The title was in Stewart. The decree, therefore, operating simply in rem, could only operate upon such interest or estate of the defendant as was shown in the bill, and properly the subject of the partition against them. Beyond this, it was ineffectual, either as to its direct operation, or when in question collaterally.
Proceedings of this character are allowed to conclude the rights of the absent party, only as it respects property, whether real or personal, involved in the suit, the property of the party proceeded against. They act upon the thing, and bind the party in respect to it. Now, that in this case, so far as the two non-resident defendants were concerned, was their interest in the southeast quarter of section twenty-three? They were strangers as regarded any other piece or parcel of land involved in the proceedings.
Then, as to Mary, the daughter, the process was served personally upon her; she was an infant, and appeared by a guardian ad litem. But this was simply an appearance, as the representative of her interest in the undivided parcel which had descended to the heirs. The bill shows that she had no interest in the partition, except as to this: all the other parcels of which partition was sought belonged to other parties, and concerned them alone; as to these, John Doe might have been made a party with as much propriety as this defendant. It may be, as we have already said, that these proceedings conclude the question of partition from afterwards being agitated, a question which it is not now necessary to decide; but we think it clear that they cannot conclude the title even of a party to them, whom the proceedings themselves show had no interest or concern in the question of partition.
Upon the whole, after the best consideration we have been able to bestow upon the case, we think the court erred in excluding the evidence offered to impeach the deed of McCall to Stewart, and that the judgment below should be reversed, and a venire de novo awarded.
Mr. Justice DANIEL and Mr. Justice CAMPBELL dissented.

## Notes

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