Doe v. Carpenter

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Indiana.

It 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 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 non-residents 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.

It was submitted on printed arguments by Mr. Dunn, for the plaintiffs in error, and Mr. Baker, for the defendants.

Mr. Justice NELSON delivered the opinion of the court.