No. 14,151.

#### Ballew *v.*Roler et al.

Vendob and Pubchaseb. — Vendor’s *Lien.*— Principal *and Surety.*— Subro*gation.*— J. became the surety of the purchaser of land on a note given to the vendor to secure the purchase-money. The purchaser mortgaged the land to the surety to secure him against loss. The surety, who had been compelled *to*pay the purchase-money, foreclosed the mortgage after the mortgagor’s death.

*Held,*that the right of the surety was superior to that of the widow of the mortgagor, he being subrogated to the,lien of the vendor to whom the purchase-money was paid.

*Held,*also, that the widow, until the purchase-money was paid, had only the right to redeem.

*Same.*— Former *Adjudication.*— A decree of foreclosure estops a party from setting up any title acquired before the decree was rendered.

Prom the Tipton Circuit Court.

w. *R. Oglebay,*for appellant.

*J. N. Waugh*and *J. R. Kemp,*for appellees.

Elliott, J.

The appellant, in her complaint, asserts title to the real estate therein described. The second paragraph of the answer of the appellees alleges that in 1868, John H. Reeder, since deceased, was the owner of the land in controversy; that he mortgaged it to William Jackman to secure and indemnify him against loss by reason of his undertak*558ing as surety for Reeder; that Reeder died in April, 1875 ; that after the death of Reeder, the mortgagor, Jackman, the mortgagee, instituted a suit to foreclose the mortgage executed to him, making the widow and heirs of the mortgagor parties; that the plaintiff was the widow of Reeder, and that she has since married Lindsey Ballew; that in such suit a decree was entered foi’eclosing the mortgage and barring the equity of redemption of the appellant, as well as of all the other parties to the suit. It is further alleged that a sale was made on the decree; that the land was bought by Jackman, and that a deed was executed to him by the sheriff in due season,, It is also alleged that the complaint, in the foreclosure suit, averred that the note which Jackman executed as surety was given by the appellant’s husband to secure the purchase-money of the land in controversy to the person from whom the land was bought.

It is quite clear that this answer is good as a plea of former-adjudication. The appellant was brought into court to answer as to her interest in the mortgaged premises, and she was thus afforded an opportunity to assert her claim, and, having failed to do so, she is .concluded by the decree. There would be little reason for making persons parties to a foreclosure suit if the decree rendered was not effective to defeat their claim and bar their equity of redemption. Our decisions, extending over many years, uniformly hold that a decree of foreclosure estops a party from setting up any title acquired before the decree was rendered. *Lawrence*v. *Beecher,*116 Ind. 312; *Adair*v. *Mergentheim,*114 Ind. 303; *Bundy*v. *Cunningham,*107 Ind. 360; *Craighead*v. *Dalton,*105 Ind. 72; *Randall*v. *Lower,*98 Ind. 255; *Woodworth*v. *Zimmerman,*92 Ind. 349, and cases cited; *Ulrich*v. *Drischell,*88 Ind. 354, and cases cited. In *McCaffrey*v. Corrigan, 49 Ind. 175, the rule we have stated was applied in a case very like the present.

Whether a judgment or decree is, oris not; erroneous, can not be inquired into in a collateral proceeding; all investí*559gation ends as soon as it is ascertained that there was jurisdiction of the subject and of the parties. It is, therefore, without success that the appellant’s counsel presses upon our attention reasons supporting his contention that the decree mentioned in the answer is erroneous, for, grant that the record in the suit in which the decree was rendered abounds in errors, still it would profit the appellant nothing.

The third paragraph of the answer is not materially different from the second, and what we have said shows its sufficiency.

The material allegations of the second paragraph of the appellant’s reply are these: That the mortgage was executed to Jackman on the 4th day of December, 1868, to indemnify him against any loss he might sustain as the surety of John R. *Reeder;*that the appellant did not appear and defend the suit brought to foreclose the mortgage because of the false and fraudulent representations of Jackman that the land was bought of Eli Reed by Reeder, and that the mortgage he was seeking to foreclose was given for the purchase-money, and that she relied upon such representations, and did not appear and defend the foreclosure suit.

If it were conceded that the appellant could impeach the decree rendered in the foreclosure suit in this collateral action, the reply can not be upheld. The statement of the plaintiff in the foreclosure suit is not shown to be false, much less fraudulent. As Jackman was surety for the purchase-money, and was compelled to pay it, he was subrogated to the rights of the original vendor, and his mortgage became, in equity, a mortgage for the purchase-money paid by him. *Smith*v. *Schneider,*23 Mo. 447.

It is quite clear, upon the whole record, that the appellant can not maintain this action. This would be true, even if there had been no decree foreclosing the lien of Jackman, for, as Jackman paid the purchase-money, his right is superior to that of the *appellant;*and if she could, by any possibility, be awarded relief, it could only be upon a bill to re*560deem. This is expressly decided in *Keith*v. *Hudson,*74 Ind. 333, and the decision is fully supported by the cases of *McMahan*v. *Kimball,*3 Blackf. 1; *Fisher*v. *Johnson,*5 Ind. 492; *Talbott*v. *Armstrong,*14 Ind. 254; *Patton*v. *Stewart,*19 Ind. 233; *Alexander*v. *Herbert,*60 Ind. 184.

Filed June 7, 1890;

petition for a rehearing overruled Sept. 17, 1890.

If the fact that there was a decree of foreclosure should be entirely eliminated, still, this action could not be maintained, because the plaintiff has, at the utmost, no more than a right to redeem, for even if Jackman acquired no rights under his indemnifying mortgage paramount to those of the plaintiff, he had, nevertheless, a right by subrogation to the vendor’s lien held by the person to whom the purchase-money was paid. As against a lien for purchase-money the rights of a widow are subordinate ; for, until the purchase-money is paid, she has nothing more than a right to redeem.

Judgment affirmed.