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U.S. Supreme Court

Lessee of McCall v. Carpenter, 59 U.S. 18 How. 297 297 (1855)

Lessee of McCall v. Carpenter*

59 U.S. (18 How.) 297


Where there was a decree of a court of chancery for the partition of real estate, an agreement to divide which had been previously made, but one of the parties to the agreement had conveyed all his interest in the estate to one of the complainants and died before deeds of partition were executed, and the bill was filed against his heirs simply for partition, the decree of the court and deeds executed under it only operated upon the parties jointly interested in the property.

Two of the heirs were nonresidents, and did not appear; the third was an infant. Therefore, in an action of ejectment by the heirs, evidence was admissible to show that the deed from their ancestor had been obtained by fraud.

The proceedings in chancery did not involve this question, nor was it adjudicated upon by the court. Nor is the question of fraud appropriate to the proceeding in partition; if raised, the proceedings are usually suspended and the question sent to a court of law.

The recitals in the deeds of partition have no binding force beyond what is derived from the decree.

The defendants were jointly interested with the complainants in one parcel embraced in the partition suit. The ancestor having conveyed away the property covered by the deed alleged to have been fraudulently obtained, the heirs had no interest in the partition of it.

These proceedings, being in rem, only operated in respect to the title as against them upon that part of the property in which they had a joint interest.

This was an ejectment brought by the McCalls against Carpenter and Reitz to recover six blocks, seventy-two lots, and one half block, in Lamasco City, in the County of Vanderburgh, in the State of Indiana, of which blocks and lots Carpenter and Reitz were in possession.

The claim of the plaintiffs was founded upon the following circumstances:

Prior to the 21st of March, 1840, certain persons were possessed of the City of Lamasco, and also of the southeast quarter of section 23, in town 6, south of range 11, west, consisting of chanrobles.com-red

Page 59 U. S. 298

160 acres. They owned this property in the following proportions, namely:

John Law, 1/8; William H. Law, 2/8; Boston and Indiana Land Company, 1/8; Lucius H. Scott, 2/8; James B. McCall, 2/8.

On the 21st of March, 1840, the proprietors the Boston Land Company subsequently acquiescing signed an agreement under seal, to divide the town lots and also the quarter section amongst them. The town lots were divided into eight subdivisions, whereof each proprietor of 2/8 had two, and the quarter section was also divided into eight parts, allotted in the same proportion.

Before deeds of partition could be exchanged, McCall sold and conveyed to Hugh Stewart all his undivided interest in the town property, without including his share in the quarter section. This deed purported to be executed on 18th June, 1840. It was not in the record, being offered in evidence upon the trial, but rejected.

Shortly after the execution of this deed to Stewart, McCall died, leaving three infant children, two of whom were nonresidents of the state, the lessors of the plaintiff in error. These children thus became the unquestioned heirs of their father's interest in the quarter section, which was not included in the deed to Stewart.

In order to bring about a partition regularly, two bills ought to have been filed, one for the partition of the town property, in which the interest of the father of the infants appeared to be held entirely by Stewart, they themselves having none, and the other by their co-tenants in the quarter section in which Stewart had no interest, and therefore should not have been a party.

It so happened, however, that at the March term, 1842, of the Vanderburgh Circuit Court, a bill was filed by John Law, William H. Law, Lucius H. Scott, and Hugh Stewart, in their own right, and also the trustees of the Boston Land Company. The nature of the bill and the proceedings under it are stated in the opinion of the Court, as are also the proceedings in the ejectment which gave rise to the case now under consideration.


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