
    Muir and Another v. Gibson and Another.
    Section 238 of the practice act of 1852, removes all objections to the competency of a witness by reason of anyincapacity from crime or interest.
    The construction put upon section 302 of the same act in Moore v. Allen, 6 Ind. R. 521, and Johnson v. Cook, 7 Ind. R. 240 is affirmed in this case.
    Bill in chancery by A. against B. and O., alleging that O. had purchased a lot of B., from whom he had received a bond conditioned for the conveyance of said lot to him, on payment of the purchase-money; that, to secure an indebtedness, O. had assigned the bond to A.; that O. had paid S. for the lot, but had received no conveyance; and that exclusive of said property O. was insolvent. Answers, cross-bill, replication, &c. Issue formed. O. died before trial, and his administrator was made defendant in his stead; but his heirs were omitted. Trial by the Court. Lot ordered to be sold for the payment of A’s. claim, Sc. Held, that this proceeding was analogous to the foreclosure of a mortgage, and the heirs of C. were indispensable parties.
    Where a defect of parties is of such a character as to leave the judgment of the Court no foundation on which to rest — such as can neither be waived nor cured — the Supreme Court will arrest the proceedings and remand the cause, although the defect is not assigned for error.
    APPEAL from tbe Decatur Circuit Court.
   G-ookins, J.

Gibson and Swem brought their bill in chancery against Robinson and Muir, alleging that Robinson had purchased a lot in the town of Greensburgh from Muir, from whom he had received a bond conditioned for the conveyance of said lot to him on full payment of the purchase-money — being 300 dollars; that to secure an indebtedness, he had assigned said bond to them, which they then held as such security; that Robinson had fully paid Muir the purchase-money for the lot, but had received no conveyance therefor; that exclusive of said property, Robinson was insolvent.

Robinson answered, admitting the facts stated in the bill, except his insolvency, which he denied, and alleging that he had fully paid Muir for the lot.

Muir answered, denying that Robinson had paid said purchase-money.

Robinson thereupon filed an amendment to his answer, setting forth particularly the manner in which he had paid Muir ; and also a cross-bill against Muir and the plaintiffs, which set forth at great length dealings between himself and Muir for many years, — consisting of the loaning of money, and the giving of notes by Robinson to Muir therefor at usurious interest; alleging payment of all that was lawfully due on account of such loans, and claiming a set-off against Muir for professional services as an attorney at law, exceeding the consideration agreed to be paid for the lot; averring that he had made lasting and valuable improvements upon it; and that the plaintiffs and Muir had confederated to defraud him and’ to subject the property to sale, &c.

. Gibson and Swem answered the cross-bill denying the confederation. Their answer contains no new matter.

Muir’s answer to the cross-bill denies all its material allegations, and sets up affirmatively an indebtedness to a large amount from Robinson to him, — setting forth the particulars of it, and exhibiting various notes of Robinson, which be alleged to be due and unpaid. These are the same notes which Robinson charged to be usurious. He also exhibited receipts signed by Robinson, acknowledging payment for most or all of 'the professional services which Robinson claimed as a set-off.

To this answer, Robinson filed tbe common replication in chancery"

Tbe plaintiffs took tbe deposition of Robinson, who testified to tbe facts alleged in bis cross-bill in regard to tbe usury, and to the correctness of bis account for professional services, and tbat be bad applied tbat account as a payment for tbe lot.

.Robinson having died, bis administrator was made defendant in bis stead.

Thus far tbe proceedings were bad under tbe former chancery practice. At this point in tbeir progress, tbe code of 1852 took effect, under which there was a trial by tbe Court, a finding of tbe amount due from Robinson to tbe plaintiffs, — that Robinson assigned said title-bond to them to secure tbe payment of the sum so found due, and adjudged that tbe plaintiffs recover said sum, —tbat it was a ben upon said lot, which was ordered to be sold by tbe sheriff, and after payment of tbe plaintiffs’ debt, interest and costs, tbat he pay tbe overplus to Muir, and tbat Muir bold tbe title to tbe lot subject only to tbe claim of tbe plaintiffs.

Muir, before entering upon tbe trial, moved to suppress the deposition of Robinson on the ground that he was incompetent. The Circuit Court refused to suppress it, and that ruling’ is assigned for error. The 2 R. S. 1852, p. 80, s. 238, removes all objections to the competency of a witness by reason of any incapacity from crime or interest; and the same statute, p. 97, s. 302, provides that a party to a suit may be examined as a witness by his co-plaintiff or co-defendant where their interest is not joint. According to the construction put upon this statute in the cases of Moore v. Allen, 5 Ind. R. 521, and Johnson v. Cook, 7 Ind. R. 240, Robinson was a competent witness, at the time of the trial, and his deposition was properly admitted.

It is assigned for error that the case was tried without an issue upon the answer of Muir; but this is a mistake. There was a joint replication to the answer of Gibson and Swem and of Muir to the cross-bill of Robinson. The answer of Gibson and Swem contained no new matter to be replied to, and the replication put in issue the affirmative matters in Muir’s answer-, which put the case at issue.

There is, however, a radical defect in these proceedings, for which the judgment must be reversed. The proper parties were not before the Circuit Court. Robinson being dead his. administrator was made a party, perhaps unnecessarily, and his heirs, who were indispensable parties, were omitted.

This proceeding was analogous to the foreclosure of a mortgage, and the property was ordered to be sold. This defect is not assigned for error; but where the defect for the want of parties is of such a character as to leave the judgment of the Court no foundation on which to rest, — one which can be neither waived nor cured,— we conceive it to be the duty of this Court to arrest the proceedings, and remand the cause, with instructions to bring in the proper parties.

Per Curiam.

The judgment of the Circuit Court is reversed at the cost of the appellees, and the cause remanded with instructions to that Court to require the plaintiffs to make the heirs of Robinson parties to the suit, and for further proceedings not inconsistent with this opinion.

J. Gavin and J. R. Goverdill, for the appellants.

J. S. Scobey and W. Gumback, for the appellees.  