Smith . King.

lows, 1 Blackf. 217. The option as to whether the note should be paid in money or in work, was with the appellee until the maturity of the note. Ireland v. Montgomery, 34 Ind. 174. If he exercised this option by making tender of performance, and doing all that it was in his power to do, he can not be deemed to have lost his right.

Where a debtor has a right to pay by doing work upon materials to be furnished by the creditor, the latter can not destroy that right by refusing to furnish the materials provided for by the contract. If the rule were otherwise, the result would be the punishment of one who was entirely free from fault, because of his adversary's default. The law is not subject to the reproach of sanctioning any such a doctrine. Judgment affirmed.

No. 8734.

SMITH V. KING.

PRACTICE. Judgment Reopened.-Section 601, R. S. 1881.-Complaint.-Demurrer.- -A party notified by publication only, and who has had a judgment against him opened under sec. 601, R. S. 1881, may demur to the original complaint for such cause as would not be deemed amendable on appeal, or cured by the verdict on motion in arrest.

PARTITION. Cross Petition.- Notice. Res Adjudicata.-If a person, not named in the petition for partition, becomes a party, and files a cross petition, claiming that certain defendants had conveyed their alleged interests to him, there can be no valid finding and decree in reference to the cross petition without legal notice of the filing thereof, or an appearance thereto by such defendants. The original petitioners, under section 7 of the act concerning partition, 2 R. S. 1876, p. 343, may dispute the right of such third person to appear if hostile to their interests, but they can not represent such defendants.

PLEADING. Written Instrument. The deeds through which one claims title are not the foundation of his action for partition or to quiet title, and copies thereof filed with the complaint can not be looked to in passing upon a demurrer to the complaint.

From the Tippecanoe Circuit Court.

Smith v. King.

I. N. Alexander and J. A. Stein, for appellant.

R. C. Gregory, W. B. Gregory, J. W. Wilstach and J. A. Wilstach, for appellee.

WOODS, J.-The appellant has assigned two errors, but his counsel have addressed their argument solely to the decision of the court in overruling the demurrer for want of facts to the appellee's complaint.

The original complaint, which purports to be a "complaint to amend decree and quiet title," was against Ellen Ketchum and her husband, Joshua Ketchum, and Ann Harris and her husband, Elijah Harris. Afterwards an amendment was permitted, whereby the appellant was made a defendant. Notice by publication to all the defendants was duly proven, and a decree taken against them pro confesso. The appellant afterwards appeared and procured an order opening up the decree and permitting him to defend, whereupon, over the objection of the appellee, but with the leave of the court, he filed a demurrer to the complaint, which the court overruled, and the appellant declining to answer over, though he had presented a verified answer to the merits with his petition for the opening up of the decree, the court gave judgment confirming the decree as originally entered.

The appellee now insists that the appellant was entitled to have the decree opened up only for the purpose of answering to the merits, and consequently that the court had no right to permit the filing of the demurrer, and that the ruling thereon presents no question for the consideration of this court.

The provision of the code, section 44, R. S. 1881, sec. 601, is: "But, before any judgment shall be opened, such party shall give notice to the original complainant," etc.," and shall file a full answer to the original complaint," etc.

While we are of the clear opinion that in such case a demurrer should not be entertained for any cause which would be deemed cured by the verdict, or in reference to which the complaint was amendable on the trial as a matter of course,

Smith v. King.

and on appeal would be treated as amended, yet, if the complaint is claimed to be fatally defective, the court may permit it to be tested by a demurrer, without waiting for a motion in arrest, to which the party clearly might resort.

As against the appellant, the complaint shows an unquestionably good cause of action to quiet the appellee's title to certain lands described, unless the averments made in reference to the proceedings and decree in partition, which decree it was sought to have corrected, are such as to nullify the title which it was sought to quiet.

A complete transcript of the proceedings and decree in partition is set out and embodied in the complaint, whereby it appears that Job E. Stevenson and four others presented a petition for partition against Edward O. Stevenson and a large number of others, including the said Ellen Ketchum and Ann Harris and their husbands, it being alleged in the petition that the respective parties each owned a certain designated interest in the lands sought to be partitioned, the interest of Mrs. Ketchum and Mrs. Harris each being stated as the onetwenty-sixth. Being non-residents, they and their husbands were notified by publication to answer the petition, but made default. Before this default was taken, though after the proof of publication against the non-resident defendants, the appellee King, in pursuance of leave of the court theretofore granted, having been admitted to defend, filed an answer and cross petition, alleging that the said defendants Harris and Ketchum had conveyed away their respective interests, and that, by certain mesne conveyances, he, the said King, had become the owner thereof, and asking that the same be set off to him in severalty. No notice of the filing of this cross petition was ever issued or published, and the original petitioners do not appear to have joined issue upon it.

The final decree recites the coming of "the parties heretofore appearing by their counsel, as heretofore," the default of the parties who did not appear, including the defendants Ketchum and Harris, "and now on motion and by agreement

Smith . King.

of the parties appearing, and by reason of the default and decree pro confesso aforesaid, as to the defaulting defendants, this cause, for hearing and trial, is submitted to the court, without the intervention of a jury," etc.; and the court proceeds to enter a finding for the petitioners, specifying their respective interests and the interest of each defendant in the land as stated in the original petition, decrees partition and appoints commissioners, who report accordingly, confirms the report, and appoints a commissioner, who reports conveyances to the respective parties of the portion set off to each, which deeds the court approves-no reference to the name or cross petition of the appellee being made in the finding, orders or decree, but the interests, which he claimed to have derived from Mrs. Harris and Ketchum, being set off to them as their own.

In reference to these proceedings, thus set out in his complaint, the appellee avers that, through his mistake and inadvertence, the judgment of partition in said cause was made in favor of the said defendants Ellen Ketchum and Nancy Ann Harris, instead of in favor of the plaintiff, and the mistake carried into the commissioners' deeds for the lands before described; that he is still the owner in fee simple thereof and entitled to a deed of conveyance by a commissioner, to be appointed by the court for the purpose of correcting such mistake; that the defendant William Smith, one of the grantors in the plaintiff's chain of title, is asserting an interest adverse to the plaintiff's claim, but has in fact no interest. Wherefore, etc.

The appellant insists that this is not a good complaint for a review of the judgment, because no error is shown; that section 99 of the code does not apply, nor section 29 of the act concerning partition, 2 R. S. 1876, p. 350; and that, the case not coming within any of these provisions, the complaint is an effort to make a collateral attack upon the decree in the partition case; that, this attack not being permissible, the decree stands as a conclusive adjudication that the appellee had no interest in the land at the time of the decree, and that

Smith . King.

his alleged interest belonged to Ellen Ketchum and Nancy Ann Harris.

Conceding, without deciding, that the appellee is without remedy so far as the effort to correct the decree is concerned, we do not concur in the proposition that he is estopped by force thereof from asserting title to the land. Estoppels must be mutual, and if the decree, as rendered, is conclusive against the appellee, it must be that if the decree had been in his favor, adjudging that he had become the owner of the shares of Ketchum and Harris, it would have been conclusive upon them; but the only notice given them was to answer the original petition, which conceded their interest, and it would be singularly unjust if, upon such a notice, a stranger to the original petition could come in and contest their right upon a cross petition of which they had neither actual nor constructive notice.

The statutory provisions on the subject are as follows:

"SECTION 1. That all persons holding lands as joint tenants or tenants in common, or tenants in coparcenary, may be compelled to divide the same in the manner provided in this act.

"SEC. 2. Any such tenant may apply to the circuit court, or court having probate jurisdiction of the county in which the lands, or any part thereof, may lie, by petition setting forth a description of the premises and the rights and titles therein of the parties interested.

"SEC. 4. It appearing to the court that such summons has been served ten days before the first day of the term, and when publication as aforesaid is required, that the same has been made thirty days previous to such term, the court shall proceed to hear and determine such petition.

"SEC. 5. Any person interested in such estate may appear and plead any matter tending to show that the petitioner ought not to have partition as prayed for, and the further pleadings shall be conducted as in actions at common law, until an issue in law or in fact shall be joined, which shall be determined as in other cases.