they were begun. The demurrer to the foregoing reply was correctly sustained.

In the third paragraph of their answer to the complaint, appellees made the same admissions, and none other, in regard to the ditch proceedings, as they made in the first paragraph of their answer, the substance of which we have heretofore given in this opinion; and they then averred that afterwards, at the fall term, 1870, of the court below, appellant herein and James Hoggart prosecuted an action against William L. Noble, who was then the owner of the land mentioned in the complaint herein, and was the remote grantor of appellees, for the benefits assigned against such land, which were the same benefits and demands named and sought to be recovered in this action, and none other; that the aforesaid action was prosecuted to final judgment, and therein William L. Noble recovered a judgment against appellant, Phillips, and said Hoggart, for his costs, and the plaintiffs therein took nothing by their suit, which said judgment remained of record in the proper order-book of said court; and that appellees herein were the remote grantees of William L. Noble, and held said land under his title, and from him; wherefore appellees said that the matters and things in appellant's complaint herein had been and were in the aforesaid cause, fully adjudicated; and they demanded judgment for costs, etc.

In his reply to the foregoing paragraph of answer, appellant said that the cause referred to in such answer was not a final determination of the cause, and was not a bar to his prosecution and recovery in this cause, because he admitted that he so commenced a suit, in the court below, against said Noble, to recover said assessment and pay for so constructing said ditch, to which suit said Noble appeared, and answered by general denial; that, the cause being at issue, appellant demanded a trial by jury, which was duly impaneled and sworn to try the cause; that, after appellant had submitted his evidence, said Noble filed his demurrer to the evidence, and failed to make the evidence a part of his demurrer, and asked that the cause be withdrawn from the jury, and submitted to the court; that in such demurrer appellant failed to join, nor did he consent, in any way, to the withdrawal of the cause from the jury; and because the only judgment rendered in the aforesaid suit was that plaintiffs therein should pay the costs.

It is very clear, we think, that the court committed no error in sustaining appellees' demurrer to the foregoing reply. In such reply, appellant makes a collateral attack upon the validity of the former adjudication, pleaded by appellees in bar of his present action. He has stated in his reply certain defects, irregularities, and, perhaps, errors, in such former adjudication, but of these there is not one which he could not have been relieved from by an appeal to this court, and none, certainly, which would render the adjudication absolutely void, where, as here, it is attacked collaterally.

In such a case, unless the former adjudication be shown to be void, it will constitute a good and complete defense in bar of any other suit for the same cause of action. The principal grounds upon which appellant claimed, in his reply, that the former adjudication was not a sufficient bar to the prosecution of his pending suit, were that he had failed to join in the demurrer to the evidence, and that he had never consented, in any way, to the withdrawal of the cause from the jury. It will be observed that appellant has failed to aver, in his reply, that either of these grounds was shown by the record of the former adjudication. In the absence of such an averment, we must presume that the record of the former adjudication is regular and formal, and free, even, from apparent error, and that none of the facts alleged by appellant against the validity of such adjudication are shown by the record thereof. This is the doctrine of many of our decided cases. Reid v. Mitchell, 93 Ind. 469; Dowell v. Lahr, 97 Ind. 146; McCaslin v. State, 99 Ind. 428; Exchange Bank v. Ault, 102 Ind. 322; S. C. 1 N. E. Rep. 562; Baltimore, etc., R. Co.

v. North, 103 Ind. 486; S. C.3 N. E. Rep. 144; Cassady v. Miller, 106 Ind. 69; S. C. 5 N. E. Rep. 713; Pickering v. State, 106 Ind. 228; S. C. 6 N. E. Rep. 611.

The facts stated in the reply were not sufficient to show that the former adjudication was invalid and void, and therefore the demurrer to the reply was correctly sustained.

The judgment is affirmed, with costs.

(109 Ind. 438)

WEISS and others v. GUERINEAN *

(Supreme Court of Indiana. December 7, 1886.)

1. ASSUMPSIT-MONEY PAID TO REMOVE INCUMBRANCE-MORTGAGE-FORECLOSURE-REDEMPTION-ESTOPPEL BY JUDGMENT.

A decree enforcing an agreement extending the time for redemption or repurchase of property sold upon foreclosure, and ordering a reconveyance by defendant, who was the successor to the interest of the purchaser at the foreclosure sale, upon payment of the sum found due to him, provided for the payment of part of such sum by the assumption by the redemptioner of a mortgage which had been placed upon the property by defendant. As to another mortgage also placed upon it by him, no provision was made, it being supposed that the latter mortgage had been paid. Held, that the redemptioner, upon being obliged to pay off the latter mortgage, could recover the amount so paid from the one from whom he had redeemed, and that the decree did not estop him from claiming it.1

2. SAME SUBSEQUENT TRANSACTIONS.

The fact that the redemptioner afterwards realized, out of a sale of the property, more than enough to reimburse him for all sums paid thereon, creates no rights in defendant.

Appeal from superior court, Vigo county.

Action for money paid, brought by L. A. Guerinean. Judgment for plaintiff below. Defendant appeals.

J. H. C. Royse, Stimson & Stimson, and R. Dunnigan, for appellants. H. C. Nevitt, for appellee.

MITCHELL, J. Prior to the year 1873, Robert N. Hudson, being the owner in fee-simple of outlot No. 34, in the city of Terre Haute, executed an indenture of mortgage, by which he conveyed the lot so owned and described to George P Bissell, as security for a loan of $15,000. The lot extended lengthwise from Fifth to Sixth streets, the west frontage abutting upon the first, and the east upon the last, above mentioned street. On the north the lot was bounded by Oak street, and on the south by an alley. As it is described, the tract apparently comprised the whole of one-half square or block. Subsequent to the mortgage to Bissell, Hudson conveyed, by deed of general warranty, 74 feet in depth, across the west or Fifth street frontage, to A. F. Smith, who subdivided the part so conveyed; designating and numbering the several parcels into which he divided it as lots 1, 2, 3, 4, 5, and 6, respectively, in Smith's subdivision of outlot No. 34. Except the 74 feet above mentioned, the title to outlot 34 remained in Hudson; the part remaining unsold being designated as the "Hudson Residence." Soon after the subdivision, Smith conveyed lots 1, 3, and 4 to the appellants Weiss and Greenawalt. Lot 2 was conveyed to George C. Duy and wife, while the title to lots 5 and 6 was retained by Smith. Afterwards, Duy and wife executed two separate mortgages, for $1,000 each, on lot 2, and Smith executed one for a like amount on lot 6; the three mortgages thus executed having been given to secure debts due from the several mortgagors to Mary A. Guerinean.

Pursuant to a decree of the United States district court for the district of

As to the effect of a judgment as an estoppel, see Riverside Co. v. Townsend, (Ill.) 9 N. E. Rep. 65, and note; Bigley v. Jones, (Pa.) 7 Atl. Rep. 54; Dicken v. Hays, (Pa.) 7 Atl. Rep. 58.

*Rehearing denied.

Indiana, by which decree all those interested in outlot 34, as above detailed, were bound, the whole tract was sold at a marshal's sale, on the eleventh day of September, 1878, to satisfy the Bissell mortgage. George P. Bissell Lecame the purchaser at this sale. Before the time for redemption expired, Weiss and Greenawalt, for the purpose of protecting their title to lots 1, 3, 4, above mentioned, secured an arrangement with Bissell by which they subsequently acquired title through the Bissell decree to the entire tract. In consummating this arrangement with Bissell, it became necessary or convenient for the appellants Weiss and Greenawalt to make a new loan from Bissell of $11,000. This loan was secured by the appellants giving Bissell their personal obligations for $10,000 and $1,000, respectively. The $10,000 was secured by a new mortgage on the Hudson residence, while lot 6 was mortgaged to secure the $1,000 note. The appellants paid Bissell the residue of the amount due on his purchase under the decree in cash.

Prior to, and in contemplation of, the arrangement above mentioned with Bissell, the appellants made a written contract with Hudson, the effect of which was that, upon certain conditions and considerations therein mentioned, the time for redemption from the sale under the Bissell decree, or the right to repurchase the property, was to be extended six and contingently twelve months beyond the statutory period. The provisions of this agreement were to inure to the benefit of and be available to any of those interested as grantees or mortgagees under Hudson.

The parties having subsequently disagreed as to their rights and obligations under the agreement last above mentioned, Hudson filed a bill against the appellants, asking the intervention of the court to compel the execution of the contract, and to permit him to redeem according to its terms. A singular proceeding had been commenced for a like purpose by the appellee and his sister Adelaide, they having succeeded as the heirs of Mary A. Guerinean, deceased, to the mortgages above mentioned, on lots 2 and 6.

The proceedings thus separately commenced were consolidated prior to the hearing. After the consolidation, a decree was given, the effect of which was to establish the right of all or either of the several complainants in the consolidated proceeding to redeem or repurchase the property, upon the condition that, within a time limited in the decree, the sum found to be due the appellants should be tendered and paid. An account was stated, and it was found and adjudged that there was due the appellants the sum of $24,504.39. The court appointed a commissioner, and directed that, whenever it was made to appear that either of the parties complainant in the proceeding had paid the sum found due, within the time limited, a conveyance of the entire tract should be made to the person so paying. It was also made a part of the decree that the person so redeeming might assume, and ultimately pay off, the appellants' $10,000 note, which was secured by the mortgage on the Hudson residence, such assumption and payment to be a part liquidation of the $24,504.39 found to be due the appellants. Concerning the mortgage on lot 6 the decree was silent.

Within the time stipulated the appellee, Louis A. Guerinean, paid the amount required, and received a deed from the commissioner according to the terms of the decree. When the account was taken at the hearing above referred to, the mortgage on lot 6, for $1,000, was of record, unsatisfied. The appellants' attorneys, supposing it to be the truth, stated to the court that the debt secured by that mortgage had been paid off by the appellants. Statements were made by the appellants, or others on their behalf, during the progress of the hearing, similar in effect. These statements were accepted as true, both by the court and the appellee, and the amount of this mortgage, as also the $10,000, was included in the $24,504.39, which was found to be the sum required to be paid in order to redeem. Upon the supposition that the $1,000 had been paid by the appellants, no provision was made in the de

cree respecting its assumption by the person entitled to redeem. After the amount had been paid by the appellant according to the terms of the decree, and after the deed had been made to him by the commissioner, it turned out that the debt secured by the mortgage on lot 6 had not been paid, and the holder thereof soon after instituted suit, and obtained a decree of foreclosure thereon against the lot. The appellants refused to pay off the debt, and, in order to protect his title to lot 6, the appellee was compelled to pay $1,250.89. The facts above stated are extracted from the first paragraph of the complaint, and the exhibits attached thereto. This action was brought by the appellee against the appellants to recover the amount paid, as stated above, to redeem lot 6. The court overruled a demurrer to the complaint, and, upon issue made thereon, a trial was had, resulting in a verdict and judgment for the plaintiff below for the amount so paid. The propriety of the ruling of the court, in overruling the demurrer to the complaint above summarized, is the chief subject of discussion.

On behalf of the appellants, it is contended that while the decree under which the redemption was made, and which fixed the amount to be paid to the appellants, is permitted to stand, the question litigated in this case was res adjudicata, and therefore not open to further inquiry. The argument is that, in the nature of the case, all matters affecting the equities between the parties, as respects the amount to be paid in order to redeem, were before the court, and became the subject of inquiry in that proceeding. The rule that a question once passed upon by a court of competent jurisdiction is forever settled, as to the parties to the record, while the judgment or decree which determines such question remains unreversed and in force, is invoked as an estoppel against the appellee. Within this rule it is claimed the former judgment presents an insuperable obstacle against the right of the plaintiff to recover upon the facts disclosed in his complaint.

Conceding the general rule, the appellee nevertheless insists that it does not control in this case. His contention is that the doctrine of res adjudicata does not apply here, because the inquiry concerning the amount to be paid in order to effect a redemption was merely incidental or collateral to the matter in issue in that proceeding. Hence, it is said, this action may be maintained notwithstanding the former judgment, because the appellants, by representing that the mortgage on lot 6 was paid off, when in truth it was not, thereby perpetrated a legal fraud, both upon the court and the appellee.

Neither view thus put forward affords a satisfactory solution of the case, as we regard it, upon the facts disclosed. The amount required to be paid, in order that a redemption might be effected under the Hudson contract, was so directly involved, and was so material, as that the decree in that respect must be regarded as conclusive upon all those who were parties to that proceeding. While that decree remains without modification, the sum therein specified as the amount then due the appellants is not open to collateral inquiry. That judgment conclusively fixed the sum of $24,504.39 as the amount due the appellants. So long as that adjudication is allowed to stand, it must be regarded as speaking the exact truth, in respect to the rights and liabilities of all those who were parties to it, so far as their rights therein involved existed on the day the decree was given.

A party against whom an unauthorized or inequitable judgment has been obtained, whether by fraud or mistake, cannot treat the judgment as invalid until he has taken some proceeding, known to the law, to set it aside, or to secure its modification. Methods for obtaining a new trial, or to review a judgment for material new matter, or for error of law, are pointed out by the statute, and beyond the methods thus prescribed courts possess inherent power to an almost unlimited extent, to redress wrongs, by modifying or setting aside judgments obtained by fraud or mistake. These methods, however, all contemplate proceedings in the case in which the unauthorized judgment v.9N.E.no.5-26

is alleged to have been obtained. They give no countenance to the notion that a judgment, however wrongfully obtained, may be ignored, and the rights of the parties again inquired into, in a collateral proceeding. So long as the judgment stands, not being void, it concludes the parties upon the subjects therein determined. U. S. v. Throckmorton, 98 U. S. 61; Krekeler v. Ritter, 62 N. Y. 372; Aurora v. West, 7 Wall. 82; Wiley v. Pavey, 61 Ind. 457; Cavanaugh v. Smith, 84 Ind. 380; Reid v. Mitchell, 93 Ind. 469; Freem. Judgm. 287, 289, 334; Bigelow, Estop. 148, 149.

The case before us must therefore be determined with the fact in view that the rights of the parties, so far as they were involved in the proceeding which settled the appellee's right to repurchase or redeem lot 34, are conclusively settled by that decree. That adjudication determined that there was due the appellants, on the date of the decree, the sum of $24,504.39. That is to be accepted as the fact, as it then existed, and is not to be the subject of further inquiry.

It does not follow that the appellee is not entitled to recover the money he has been compelled to pay in order to protect the title he acquired as a result of the decree. The amount required to be paid in order to redeem from the Bissell sale was a specified sum, ascertained to be due at a given date. That sum was reckoned upon the basis that the appellant had, by paying off the Bissell claim, acquired his right, and occupied his place. The result of the decree was that a redemption could only be had upon paying the sum so found to be due. It was equally a result of the decree that, when the sum so ascertained should thereafter be paid, the person so paying should acquire the title to outlot 34 in the same right that it was held under the Bissell sale. The amount of the purchase money due on the Bissell sale, inclusive of interest, costs, expenses, and improvements made to the property under the Hudson contract, less the amount of rents received by the appellants, was adjudged to be the sum above stated. The appellants, however, had not, in fact, paid the whole amount due Bissell. Of the sum treated as actually paid to Bissell, $11,000 was paid by the notes of the appellants, which notes were secured by mortgages on the property to be redeemed. This $11,000, so secured, was all included in, and went to make up, the aggregate of $24,504.39, the amount found due the appellants. It was mutually arranged that $10,000 of this amount might be liquidated by the appellee's assumption of the appellants' debt, which was secured by the mortgage on the Hudson residence. In reference to the $1,000 secured on lot 6, no arrangement was made. That sum, as the whole might have been, was treated as having been actually paid. Instead of reserving the right to assume and pay that off, the appellee paid the amount with the residue, except the $10,000, to the appellants. That was in strict compliance with the terms of the decree, and with the rights of the parties. Having received the money, it became the duty of the appellants to pay off their debt, and relieve the appellee's property from the incumbrance. Failing to do so, the appellee has been compelled to pay the appellants' debt in order to protect his title. This, therefore, presents the ordinary case of one person paying a debt for which another was personally and primarily liable, in order to protect his own property. In such a case, the person so paying is entitled to recover from one whose default has imposed upon him the burden of paying a debt for which he was neither legally nor equitably liable. Dunning v. Seward, 90 Ind. 63, and cases cited; 3 Pom. Eq. Jur. § 1300.

One who, for the protection of his own property, is compelled to pay a debt to which he is a stranger, and for the payment of which another is either legally or equitably bound, becomes entitled, on the principles of subrogation, to avail himself of all the remedies to which the person to whom payment was made was entitled; or he may maintain an equitable suit, as for money paid to the use of the other. Brice's Appeal, 95 Pa. St. 145; Stiger v. Bent, 111 Ill. 328; Binford v. Adams, 104 Ind. 41; S. C. 3 N. E. Rep. 753.