
    Driver and Others v. Driver.
    
      Friday, June 1.
    A decree against an infant defendant, without proof, is erroneous.
    Duplicity in pleading is fatal in equity as well as at law.
    Two distinct pleas in bar are not allowed in equity. •
    ERROR to the Sullivan Circuit Court.
   Stuart, J.

The defendant in error, Jeme Driver, filed her bill in chancery to set aside a conveyance, and for relief, &c.

The bill alleges that Jane, while sole, and her mother, Margaret McBroom, in March, 1838, purchased forty acres of land, and paid the purchase-money; but in consequence of the minority of TJsry, the vendor, took no deed or title-bond. TJsry, however, delivered to them his patent for the land. That in October, 1839, Jane intermarried with Edwin Driver; that in June, 1843, TJsry executed a deed for the land to Margaret McBroom, and Edwin Driver, to which both Margaret and Jane objected, insisting that the deed should be made to them; that Ediain, notwithstanding, received the deed; but that it was lost and had never been recorded; that such deed had never been delivered to or accepted by Margaret. That in June, 1844-, Edwin Driver died intestate, leaving John, Martha E. and James Driver, children by a former marriage, his heirs at law. That in February, 1845, on the application of John Driver, partition of the intestate’s lands among his heirs was made by order of the Sullivan Probate Court, wherein such proceedings were had that twenty acres of the land deeded by TJsry was adjudged to Martha, and which she still holds; that Jane, before her marriage with Edwin, had made valuable improvements thereon, of the yearly value in rent of 18 dollars; that though the said Margaret McBroom was then living, the north half of the Usry land was assigned to her without making her a party to the proceedings for partition. Prayer, that the deed to Edwin and the proceedings in partition be set aside as fraudulent and void, and the title to the land decreed to be in complainant.

TJsry, and the heirs of Driver, some of whom are infants, are made defendants.

The minor answers by guardian ad litem ; the other defendants plead in bar the proceedings for a partition had in the Probate Court, setting out the substance of the petition for partition. That the ancestor died seized of certain lands, particularly describing them, and among others the twenty acres in controversy. That Jane, widow of the intestate, was entitled to dower therein, which had not been assigned and set off to her. That as the heirs, &c., they prayed that the widow’s dower might be assigned and partition made, &c. That at the August term, 1845, Jane appeared to the petition. That she claimed dower in all the said lands; and that upon trial, &c., dower was adjudged to her and partition awarded. That commissioners were appointed, &c., and at the November term, 1845, the commissioners reported accordingly, setting off to Jane as dower in said lands a particular tract, described thus, &c. That the Court confirmed the action of the commissioners as to the dower and partition, and adjudged accordingly, which still remains of record in full force, &c. That Jane entered into possession of the lands so assigned her for dower, and still held and enjoyed the same up to the filing of her bill; that they, the heirs, have also taken possession of their shares respectively, under the partition, and that they plead the proceedings in the Probate Court in bar of the relief sought in the bill, &c.

J. P. Usher and R. H. Rousseau, for the plaintiffs.

H. L. Livingston and A. Gavins, for the defendant.

There is a second plea, substantially the same as the first, only alleging that in the proceedings for dower and partition, Jeme was the petitioner.

On motion of complainant’s solicitors, the pleas were set down for argument, and adjudged by the Court insufficient and overruled. Decree in accordance with the prayer of the bill. The heirs of Driver bring the case up.

It is insisted in argument that the Court erred in rendering a decree against the infant defendant without evidence, and in overruling the pleas. In behalf of Jane Driver, the complainant, no brief is filed.

The decree against the infant, without proof, was erroneous. Knox v. Coffey, 2 Ind. 161.—Hough v. Doyle, 8 Blackf. 300.—Hough v. Canby, id. 301.— Crain v. Parker, 1 Ind. 374.

The question arising on the sufficiency of the pleas presents more difficulty. But as the case must go back for further proceedings, it is not necessary to look beyond the form. Duplicity in pleading is held fatal in equity as well as at law; and perhaps for far more cogent reasons. Story Eq. Pl., s. 653, et infra. In Saltus v. Tobias, it was held, that two distinct pleas in bar could not be pleaded together. 7 Johns. Ch. R. 214. The Court say: “The reasoning of Lord Thwrlow is weighty and decisive, and since that time it has been the constant language of the Court that the plea must reduce the defence to a single point, and that a defendant can never plead double.” The defendants pleaded first that Jane was defendant in the petition for partition; second, that she was the petitioner. This was improper. Story Eq. Pl., s. 657.

But because of the error first indicated, the decree must be reversed.

Per Curiam.

The decree is reversed with costs. Cause remanded, with leave to the defendants below to amend their pleas.  