
    Ann Woodland v. Thos. H. Foulds, etc.
    Injunction — Perpetuation of.
    It was held tliat neither the pleading nor the evidence on which a case was submitted authorized a perpetuation of the injunction against a judgment.
    APPEAL PROM PENDLETON CIRCUIT COURT. •
    October 10, 1873.
   Opinion by

Judge Hardin :

It is alleged in the petition that the fee to one-third o'f the property is in the heirs of Casper Sharp, deceased, who purchased the property of A. Robins and sold and conveyed one-third of it to Foulds and another third to Burk, who afterwards sold his interest to Foulds, who thus acquired title to two-thirds of the property. By the petition and the amendment thereto, it is also sufficiently alleged that both Foulds and his vendee and assignor, Goulding, are insolyent, and also that they and Trimble, the admitted owner of the judgment enjoined as Foulds’ assignee, are non-residents of Kentucky. If these averments are true, the appellant is entitled, in a court of equity, to indemnity as protection against ultimate loss by tlie assertion of the title of Sharp’s heirs before the judgment against her should be enforced by Trimble, the remote assignee of Goulding and immediate assignor of Foulds, notwithstanding the acceptance of the deed and warranty of Goulding, for otherwise she would, in consequence of the insolvency as well as non-residence of Goulding and Foulds, be without any available remedy, however great the danger might be of loss to her on account of the title of Sharp’s heirs; and especially so, as it does not appear that she has any remedy upon the warranty of Robins as any other remote vendor of Sharp.

The answer of Trimble controverts the alleged insolvency - of Goulding and Foulds, but not their non-residence. They filed no answer and are proceeded against as non-residents. If the alleged fact that Sharp, at his death, had title to the extent of one-third of the property, is controverted by the warning order as to Goulding and Foulds, it is in effect admitted by the answer of Trimble, the beneficial claimant of the judgment enjoined, and the fact is, moreover, substantially proved by the parol evidence, although, by some strange omission, no deeds are filed, either to or from Sharp.

The evidence conduces to show that Sharp has living collateral heirs, whose rights in the property are not barred by limitation, and -the court might properly have ordered that they be brought before it, constructively or otherwise, under Section 40 of the Civil Code of Practice, as well that, their rights might be protected, and that the future presentation of their claims might be barred by the judgment of the court. Neither the pleadings nor evidence on which the case was submitted are such as to authorize a perpetuation of the injunction to any part of the judgment, nor did they, in our opinion, require the judgment rendered dissolving the injunction and dismissing the petition. The only action the court should have taken was such interlocutory and preparatory steps as would lead as speedily as possible to the indemnity as surety of the appellant against loss or injury arising from the defect of title, and apprehended breach of warranty which, as the case is now presented, would afford him' no adequate remedy in case of an eviction by Sharp’s heirs or an escheat of his title to the commonwealth- In either event, should it happen, she will be entitled to permanent'relief against the judgment to the extent of the injury thereby sustained by the court unless indemnified against it. Unless such indemnity be given, of the liability to loss as aforesaid remained by a release, and such preparation made as to enable the Court.to adjudge the appellants both good as against those who may have been entitled to Sharp’s interest in the property, the court should retain control of the case with the temporary injunction, and in the meantime order the heirs of Sharp to be brought before this court.

Lee, for appellant.

Carlisle, for appellee:

Wherefore the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judge Lindsay dissenting.  