
    Hackworth, Guardian, v. Zollars.
    1. Practice! assignment of errors. No assignment of errors is necessary on appeal, in a chancery cause tried by the first method of trying equitable actions.
    2. Pormer adjudication! failure to interpose defense. A party cannot relitigate matters which he might have interposed, but failed to in a prior action between the same parties or their privies, and in reference to the same subject-matter.
    3.-conveyance: variance in description: pleading. The' force of a plea of former adjudication cannot be negatived by the fact that there is a variance between the. description of the land in controversy as stated in the petition, and that in the decree rendered in the former action, if it appears from the whole record that the lands as described are substantially the same.
    4.-Nor could the objection of variance in the description betaken advantage of under a demurrer, on the ground of uncertainty of description.
    5-Judicial sale; conveyance: sheriff’s deed. A sheriff's deed will not be held void for uncertainty of description in a proceeding in equity, to quiet the title of those claiming adversely to such deed, if it appears that the identical land in dispute was that sold by the sheriff, but defectively described in the sheriff’s deed therefor.
    
      Appeal from Wapello District Court.
    
    Wednesday, January 25.
    The plaintiff, as guardian of Albert G. and Francis M. Harrow, filed a petition in equity in tbe district court of Wapello county, showing that, on the 21st day of March, 1846, Francis M. Harrow, now deceased, became the owner and entitled to the possession of twenty-four acres of land, in the north-east quarter of the south-west quarter of section twenty-four, township 72 north, of range 14 west (describing it); that said Francis died in 1855, leaving Harriet, his widow, and Albert"G. and Francis M. his children; that the widow retained possession until sometime in the year 186-, and that sometime afterward she died intestate, leaving said Albert Gr. and Francis M. Harrow her heirs at law; that sometime in 1850, the State Bank of Indiana, for the nse of the Branch at Terre Haute, recovered judgment in the district court of Wapello county, for $25,000, against Charles F. Harrow; that execution issued thereon and the sheriff pretended to sell the said land owned by said Francis, to Augustus Hall and James B. Wilson, on the 13th of October, 1851; that on the 30th day of August, 1853, the sheriff pretended to make a deed of the land to said Hall and Wilson; that afterward (date not stated), the defendants, claiming under said sheriff’s sale and deed, took possession of the land; that said sheriff’s deed is void for the reason that there is no sufficient description of the land in the levy, notice or deed, and they ask for a decree quieting title, and for rents and profits for seven years past.
    The answer admits that the minors named are the heirs at law of Francis M. Harrow, deceased; that he and his wife died, as alleged in the petition; that said Francis, in his life-time, received a deed from one Boss, for the land in controversy; that the bank recovered a judgment against Charles F. Harrow, as stated. And they allege that the land was' purchased of said Boss by Charles F. Harrow, the father of Francis; that the same was paid for with the money of said Charles F.; that to hinder, delay and defraud the creditors of said Charles F., it was agreed that the deed for the land should be made to said Francis; that the deed was so made in accordance with such agreement, and that the whole consideration was paid by said Charles F.
    The answer further states that an execution was issued on the judgment in favor of the bank and against Charles F. Harrow; that, under and by virtue of the same, the parcel of land in dispute was levied on and sold on the 13th of November, 1851, to said Hall and Wilson, and that, on the 30th .of August, 1553, the sheriff delivered a deed conveying to them said real estate.
    
      It is further stated in the answer that, in April, 1856, said "Wilson commenced an action to quiet the title to this land in the "United States district court, for the district of Iowa.; that in said action Harriet, the widow, and the minors, Albert G. and Erancis M., with their guardian, Jos. W. Caldwell, were made defendants; that said defendants all appeared and answered after due service of summons and the merits of the cause was fully tried, and that the court, in April, 1861, rendered a decree that the title to said land was in said Hall and Wilson, by virtue of the sheriff’s sale and deed aforesaid; that the defendants in said suit had no title or interest therein, or in any part thereof, and enjoined them perpetually from interfering with the title in any manner; and defendants in this action claim that the plaintiffs are estopped from further proceeding in this case; that their claim for the title and possession thereof has been fully adjudicated.
    The answer further avers, that in said action in the federal court, the land in controversy was partitioned between said Hall and Wilson, who are the grantors of defendants
    Defendants pray a decree, quieting the title in them, and for general relief.
    An additional answer was filed, alleging that at no time did said Erancis M. own or have any title to, either in law or equity, any other parcel of land in the said N. E. -J- of the S. W. ‡, except the twenty-four acres purchased of Hoss, and referred to in the petition; and that it was well known by all the parties to the action in the federal court, that the twenty-four acres sold by the sheriff was the tract now in dispute.
    To the answer and additional answer the plaintiff demurred. The demurrer was overruled, and plaintiff excepted and stood on his demurrer. The cause was submitted to the court on the petition and answer, and a decree was entered for the defendants.
    Plaintiff appeals.
    
      
      Williams and Gaston for the appellant.
    
      Hendershott <& Burton for the appellees.
   Miller, J.

I. The appellants have filed an assignment of errors, as in a case at law. This is unnecessary. The action being in equity, triable by the first method of equitable trials, it is heard de novo in this court, regardless of the decision of the court below. That is, we try the case upon the facts and the law apparent of record, the same as if this court had original jurisdiction. And, therefore, no assignment of errors is necessary. Rev. of 1860, §§ 2999, 3000, 3001; Blake v. Blake, 13 Iowa, 40; Ticonic Bank v. Harvey, 16 id. 141; Róbb v. Dougherty, 14 id. 379 ; Cooper v. Skeel et al., id. 578; Vannice v. Bergen, 16 id. 555 ; O’Conner v. O’Conner, 15 id. 303; Pierce v. Wilson et al., 2 id. 20; Austin & Spear v. Carpenter, 2 G. Greene, 131.

II. The question for our consideration in this case is, whether the facts stated in the answer of defendants, and confessed by the demurrer, entitle them to a decree in their favor.

' In pleading- the adjudication in the federal' court, the answer shows that the court had jurisdiction of the parties and of the subject-matter; that the action was between these plaintiffs and the defendants’ grantors; that the subject-matter oí that action was the title to the land in controversy in’this action — the same' subject-matter. The defendants in that action, which was an action to quiet the title to this same land, were duly served with process, appeared and filed their answers, and the cause was tried upon the merits. That the plaintiffs (defendants in that action) did not set up the matters alleged in their petition as defenses in that action is immaterial. That they could have done so there is no doubt, and it is not competent for them to relitigate matters which they could have successfully set up in defense in that action. Dalter v. Lane & Guye, 13 Iowa, 538, 542.

III. The appellant in his argument insists that the judgment of a court can be set up as a prior adjudication only when it is shown that it determined the actual question at issue between the parties, and that there being a variance between the description of the land in the decree, rendered by the federal court, from that stated in the plaintiff’s petition, therefore the subject-matter is not shown to have been the same in the former action. It is a sufficient answer to this argument to say that the appellant’s demurrer did not make this question. The demurrer objected to the sufficiency of the decree pleaded, on the ground of uncertainty in the description of the land, but did not suggest that there was a variance in the description. Upon an examination of the record it appears to be beyond controversy that the land embraced in the decree rendered in the United States district court is substantially the same land described in the plaintiff’s petition in this action. .

As the record stands, and for the purposes of the demurrer, it must be taken as true that by the judgment and decree of the district court of the United States for the district of Iowa, the question of title to the land in controversy in this case has been determined as between the parties to the former action and their privies. The answer shows that the plaintiffs in this action were defendants in the former one, and that the defendants here are the grantees of the plaintiffs in the cause in the federal court. Such being the facts and the court being one of competent jurisdiction, the decree is, as a plea, a bar between-the parties to this action. Whittaker v. Johnson County, 12 Iowa, 595; and cases cited in the opinion of Wright, J".

It is also shown by the averments of the answer that Charles F. Harrow bought and paid for the land in dispute ; that to hinder, delay and defraud his creditors, and the State Bank of Indiana particularly, it was agreed between Charles F. and Francis M. Harrow that the conveyance should be made to the latter; that it was so done; that the bank afterward obtained a judgment on its claim against said Charles F. Harrow; sold this same land thus fraudulently conveyed, to Augustus Hall and James B. Wilson, the grantors of the defendants.

These facts, if true, constitute a good defense in equity to the plaintiffs’ action.

The demurrer confesses them to be true, and on appeal we must so regard them.

IY. The appellant insist, that the sheriff’s deed is void for uncertainty in the description. This objection would, perhaps, be good if defendants were suing at law ™ ejectment. But plaintiffs are asking a court of equity to quiet the title to this land in them, and the defendants aver facts, which, in equity, makes it their property; these facts the demurrer confesses. The plaintiffs admit that this very same land was levied on under the execution, issued upon the judgment of the Wapello district court, in favor of the State Bank of Indiana against Charles F. Harrow; that this very same land was sold by the sheriff to Hall and Wilson; but they endeavor to avoid the effect of this by pointing out a defect in the description of the land thus sold, in the sheriff’s deed, and, in egwity, to take advantage of such defective description. There is no equitable principle upon which they can be permitted to do this.

Glenn et al. v. Malony, 4 Iowa, 314, 320. See, also, Dygert v. Pletts, 25 Wend. 402; Lamb v. Buchmiller, 17 N. Y. 620.

The decree of the district court is affirmed.

Affirmed.  