
    Carpenter v. Dickerson and Another.
    
      Tuesday, June 12.
    APPEAL from the Vanderburgh Court of Common Pleas.
   PIanna, J.

The appellees sued Carpenter for money laid out, &c., to his use.

The facts disclosed are, that the Dickersons were in possession of a tract of land claiming title, under a warranty deed from Roberts, who had acquired title equally from Carpenter and one Phelps for the same land. One Stewart sued the Dickersons, Roberts, and Carpenter, to recover said lands, and recovered judgment therefor. Pending the suit, the Dickersons, Roberts, and Carpenter met and agreed that the Diekersons should proceed to purchase in a supposed outstanding title in the heirs of Buckler, and thereby be enabled to defend against the suit of Stewart, and that they would bear each his fair portion of the expense. The Dickersons aver they did so, and expended over 600 dollars.

Carpenter answered by a denial. Trial, and judgment for the plaintiff.

The first point made is, that the evidence does not justify the amount of the finding.

Under the circumstances, we think it does. The deeds from the heirs of Buckler were introduced, and, for aught we can see, for the sole purpose of showing the amount of the consideration paid. They were not objected to as evidence. Perhaps they were not, if objected to, evidence against Carpenter of that fact. The expense of procuring the title, hunting up the heirs, &c., was proved by other evidence. The evidence thus introduced, without objection, shows the expenditure of a sum more than sufficient to make Carpenter's fair proportion amount to the sum named in the judgment. The answer was the general denial, and yet under it evidence was admitted relative to a compromise by Carpenter and Roberts, after Stewart had recovered judgment, by which Carpenter was to pay Roberts 800 dollars; but whether that was simply in discharge of his liability as the grantor of Roberts^ or whether it also included all the expenses incident to the suit, including those incurred in procuring the Buckler title, was, by the evidence, left a disputed question. The Court has passed upon that evidence, and we shall not disturb the finding on that ground, even if a payment to Roberts would have extinguished the claim of the agent, which we do not decide. The appellees insist that the whole evidence on that point was irrelevant under the issue. It is too late now, for the first time, to raise that question.

Chandler and J. B. Hynes, for the appellant.

J. G. Jones and J. E. Blythe, for the appellees.

Per Curiam.

The judgment is affirmed with 5 per cent. damages and costs.  