trial being first thereafter denied, judgment was entered in accordance with the findings of the court, to which was added an order that, unless the plaintiffs should within 60 days therefrom pay the several sums respectively adjudged to be due to the cross-complainants, and to be liens upon the land, such land should be sold to pay and discharge such liens, and this judgment was affirmed at general term.

It was made to appear by the evidence that on the twenty-seventh day of September, 1873, Nicholas R. Ruckle and Frederick Knefler mortgaged the land in judgment in this case to John C. Tracy and Samuel Bingham, in trust, for the purpose of securing a loan to them of money; that on the fifth day of August, 1876, Tracy and Bingham commenced a suit in chancery, in the circuit court of the United States for the district of Indiana, against Ruckle and Knefler to foreclose this mortgage; that Grubbs, hereinabove named, and many other persons, were made defendants to that proceeding, and required to answer the bill therein filed, upon the alleged ground that they either had or claimed to have some lien upon or interest in the mortgaged premises junior and subordinate to the mortgage then sought to be foreclosed; that said suit was continued until the twenty-eighth day of March, 1877, when Grubbs, upon whom process had been served on the eleventh day of August, 1876, and most of the other defendants, on being called, made default, and a decree of foreclosure was entered, including the usual order barring and foreclosing the equity of redemption of all the defendants; that Barton, the plaintiff herein, became the purchaser under that decree of foreclosure, and was in possession under his purchase when he commenced this action. It was further made to appear by the evidence that, at a sale of lands for delinquent taxes due the city of Indianapolis, held on the fourteenth day of February, 1877, Grubbs became the purchaser of the land embraced in the then pending foreclosure proceedings in the circuit court of the United States, as well as the complaint in this case, and that he, on the seventeenth day of February, 1879, received a tax deed for the land in question from the mayor and treasurer of said city of Indianapolis; that on the tenth day of April, 1879, the said Grubbs transferred and conveyed to the Indiana Banking Company all his estate and interest in the land, and that the estate and interest thus transferred and conveyed by Grubbs constituted the basis of the lien asserted and set up by the banking company against the land under its cross-complaint. The point was made at the trial, and is still insisted upon here, that by his default in the circuit court of the United States, and his failure to set up his tax claim when the decree of foreclosure was taken in that court, Grubbs became estopped from thereafter asserting any title to or interest in the land under his purchase at the tax sale, and that consequently the banking company acquired no estate or interest in the land by the transfer and conveyance which he assumed to make to it.

A judgment by default is as conclusive upon the judgment defendant, as to any matter admitted by the default and adjudicated by the judg ment which ensued, as any other form of judgment. Freem. Judgm.

§§ 248-330. But just what or how much is admitted by a default often becomes a difficult question in particular cases. The general rule is that a default is only conclusive as to such matters as are properly averred or charged in the complaint. Unfried v. Heberer, 63 Ind. 67; Harrison v. Phoenix Mut. Life Ins. Co., 83 Ind. 575; Compton v. Pruitt, 88 Ind. 171. As applicable, however, to a suit to foreclose a mortgage, and other kindred suits in the nature of a proceeding in rem, where a party is made a defendant to answer as to his supposed or possible, but unknown or undefined, interest in the property, we think that, as against him, a default ought to be construed as an admission that, at the time he failed to appear as required, he had no interest in the property in question, and hence as conclusive of any prior claim of interest or title adverse to the plaintiff. Any less rigid rule of construction might, and in many cases doubtless would, defeat the very object properly had in view in making the party a defendant to answer as to his supposed or possible interest in the property involved, to the end that all claims to or against such property might be adjusted by the final judgment or decree, and further litigation thereby avoided. On this general subject, see the cases of Griffin v. Wallace, 66 Ind. 410; Ulrick v. Drischell, 88 Ind. 354; Hose v. Allwein, 91 Ind. 497; Edwards v. Dykeman, 95 Ind. 509; Gordon v. Lee, 102 Ind. 125; S. C. 1 N. E. Rep. 290; 6 Wait, Act. & Def. 810. We are consequently led to the conclusion that the court below, at special term, erred in finding and in adjudging in favor of the claim set up by the Indiana Banking Company in its cross-complaint. That cross-complaint charged that Grubbs purchased the land in litigation at the tax sale for the use and benefit of the banking company, but there was no evidence in support of that allegation. Whether, conceding the fact that Grubbs did so purchase the land for the banking company, the latter is nevertheless bound by the default of the former in the foreclosure suit, is a question we have not considered; but, as having some possible bearing on that question, reference is made to section 252, Rev. St. 1881.

It was also shown at the trial that the land sold at the tax sale under which Anderson claimed was described on the tax duplicate as "120 ft. Washt. St. S. W. Cor. Out. 66," and in tax deed to him as "One hundred and twenty (120) feet on Washington street, in the south-west corner, outlot sixty-six, (66,) in Indianapolis, Marion county, Indiana.” In relation to the abbreviations on the tax duplicate, the treasurer and a deputy auditor of Marion county were both permitted to testify that "ft." meant "feet;" that "Washt. St." meant "Washington street;" that "S. W. Cor." meant "south-west corner;" and that "Out. 66" stood for "outlot 66." Also that the description on the tax duplicate, as well as that contained in the tax deed to Anderson, referred to and was intended to be, as it was in fact, an abbreviated description of the land more specifically designated in the complaint in this cause. There was no error in the admission of this evidence. Where a writing is in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms. 1 Greenl. Ev. § 282; Whart. Ev. § 1003.

The proceedings upon the cross-complaint of Anderson, Rowe, and Hannaman in this case are, to a greater or less extent, supported by the cases of Ward v. Montgomery, 57 Ind. 276; Flinn v. Parsons, 60 Ind. 573; Cooper v. Jackson, 71 Ind. 244; Sloan v. Sewell, 81 Ind. 180; Parker v. Goddard, Id. 294; Brown v. Fodder, Id. 491; Reed v. Earhart, 88 Ind. 159; Peckham v. Millikan, 99 Ind. 352; and no error has been shown upon those proceedings. As connected with the same subject, see, also, McWhinney v. Brinker, 64 Ind. 360, and Barton v. McWhinney, 85 Ind. 481.

So much of the judgment at general term as affirmed the judgment at special term in favor of the Indiana Banking Company upon its crosscomplaint is reversed. In all other respects the judgment at general term is affirmed; one-fourth of the costs of this appeal to be taken against the Indiana Banking Company, and the remaining three-fourths against the appellant.

(105 Ind. 77)

1. VENDOR AND VENDEE OR'S NAME.

ROSZELL v. ROSZELL1

Filed January 23, 1886.

GRANTEE PENDENTE LITE MAY DEFEND IN GRANT

Where a deed is made pendente lite, or under such circumstances that the grantee cannot defend his right to the property in his own name, he may do so in the name of his grantor, and the latter can neither dismiss the suit nor prevent the defense.

2. APPEAL-CONFESSION OF ERRORS BY PARTY NO LONGER INTERESTED, DISREGARDED ON APPLICATION OF PARTY IN INTEREST.

Where it appears that a party to an appeal no longer has any interest in the case, and that he is colluding with the opposite party for a reversal of the judgment, to the injury of one who has become the real party in interest by purchase from him of the real estate in controversy, such interested person may, on proper application, be permitted to defend in his grantor's name, and a confession of errors by the grantor will be disregarded.

Appeal from Decatur circuit court.

Ewing & Ewing, for appellant.

Miller & Gavin, for appellee.

ZOLLARS, J. While in the army, during the late war, appellee contracted for the purchase of the real estate in controversy in this action. Before his return it was deeded to his then infant son, appellant. In 1877, appellee, claiming that the property belonged to him, and that the conveyance to the son had been made by mistake, brought an action to recover the property, and to have the title quieted in him. A guardian ad litem was appointed for appellant, and such proceedings were had that a commissioner was appointed to convey the legal title to appellee. The commissioner made a deed which was approved by the court, and the title was quieted in appellee. After appellant became 21 years old, he took an appeal, and filed the record in this court on the seventh day of October, 1884. On the twenty-seventh day of December, 1884, Ed

'See 10 N. E. 114.

win S. Porter filed an application to be allowed to contest the assigned errors, either in his own name as a party to the appeal, or in the name of appellee. In this application he sets up under oath, among other things, that on the seventh day of October, 1877, which was subsequent to the judgment above mentioned in favor of appellee, said appellee and his wife sold, and by a general warranty deed conveyed, the real estate to one Mary F. Grant, and that she sold, and by a warranty deed conveyed, the real estate to him, Porter; that appellee, the father of appellant, is wholly insolvent; that they have colluded to procure a reversal of the judgment; and that appellee had executed and delivered to appellant or to his counsel a written confession of errors. On the sixth day of January, 1885, there was filed a written confession of errors, and a consent that the judgment might be reversed, signed by appellee, and also a motion by appellant to dismiss Porter's application. This motion is not based upon a denial of the facts set up in Porter's application, but rests upon the assumption that there is no way by which Porter can be made a party in this court, or be allowed to contest the case in appellee's

name.

It will be seen that, after appellee got the title to the real estate quieted in him by the judgment of the court, he sold it, and conveyed the legal title thereto by a warranty deed. He thus divested himself of all interest in the real estate which was the subject-matter of the controversy between him and appellant. Being insolvent at the time Porter filed his application, appellee had no interest in the controversy except as he might, as a matter of honor, desire to protect his grantees. According to the showing in Porter's application, appellee did not have that interest. It is thus manifest that there is no immediate protection for Porter in the controversy, if he needs protection, unless he can in some way prevent the confession of errors by appellee, and be allowed to contest the case.

Appellant, being a minor at the time the judgment was rendered against him, had the right to appeal at any time within one year after becoming 21 years of age. An appeal is said to be a continuation of the same case. Powell, Appell. Proc. 104. It is not necessary nor proper that we should now decide as to whether or not, for all purposes, Porter should be regarded as a purchaser pendente lite; nor in what respect, or to what extent, his rights might be affected by a reversal of the judgment. These are questions that may hereafter arise in the determination of the ultimate rights of the parties.

Appellant's theory is that Porter became a purchaser pendente lite. For the purpose of a decision upon the application and motion before us, we may adopt that theory to the extent that Porter was a purchaser pendente lite in such a sense as that he has a right to defend the action in appellee's The law is that if a deed is made pendente lite, or under such circumstances as that the grantee cannot defend his right and title to the real property conveyed, in his own name, he may do so in the name of his grantor. The grantor in such cases, by his conveyance, authorizes the grantee to protect his right to the property conveyed, by a suit or

name.

defense in the name of the grantor; and in such cases the grantor can neither dismiss the suit nor prevent the defense. Steeple v. Downing, 60 Ind. 478; Vail v. Lindsay, 67 Ind. 528; Ex parte Railroad Co., 95 U. S. 221.

In the last case above it was said: "A pendente lite assignment carries with it an implied license by the assignor for the use of his name in the cause by the assignee to protect the rights assigned." In the case of Lord v. Veazie, 8 How. 250, third persons, not parties to the action, but whose rights would be affected by a decision in the case, were allowed to file affidavits, and show that the controversy between the parties to the record was not a real one; that their interests were really the same; and that they sought a decision for the purpose of affecting the rights of said third persons. Upon this showing the writ of error was dismissed. See, also, Rev. St. 1881, § 271.

In the case before us, it is made to appear by Porter's application that appellee has no real interest in the case adverse to his son; that he is colluding with the son for a reversal of the judgment; and that such a reversal may seriously affect Porter's title to the real estate. Upon this showing, and under all the circumstances of the case, it seems clear that Porter should be afforded an opportunity to defend, and that appellee should not be allowed to defeat such defense by a confession of errors. And, under all the circumstances of the case, this court has ample authority to direct and order that the confession of errors by appellee shall be disregarded and rejected, and that Porter shall be allowed to defend in appellee's name. It is accordingly so ordered, and 30 days are given Porter within which to file a brief.

(105 Ind. 72)

CRAIGHEAD v. DALTON and others.

Filed January 23, 1886.

1. MORTGAGE-FORECLOSURE OF MORTGAGE-FORMER ADJUDICATION. A decree foreclosing a mortgage is binding upon all who are made parties to the suit, and concludes them from afterwards setting up any paramount claim or title to the property existing at the time the decree was rendered. 2. SAME-POWER TO EXECUTE MORTGAGE.

A decree of foreclosure necessarily adjudges, as against all who are parties to the suit, that the mortgagor had power to execute the mortgage, and that question cannot be again litigated.

Appeal from Tipton circuit court.

E. P. Kellogg, John P. Kemp, and M. F. Cox, for appellant.

Beauchamp & Gifford, for appellee.

ELLIOTT, J. The appellant alleges in his complaint that John W. Craighead died intestate in November, 1869, leaving as his heirs his widow, Martha Craighead, and his children, Robert B. Craighead and Charles Craighead; that John W. Craighead died the owner of the real estate described in the complaint; that this real estate was set apart to