
    Nixon vs. Jack, &c.
    APPEAL FROM KENTON CIRCUIT.
    1. Petition in equity, filed against Jack & Co., consisting of Jack, Goodall, Dean, and Haven, attaching a tract of land in Lewis county ; process served on Jack and Haven — the other defendants non-residents — and dismissed by the Circuit Court: held that plaintiff was entitled to judgment against the defendants served with process in the county where the suit was brought. (Lanstlale vs. Mitchell, 14 B. Monroe, 348.)
    2. The 93d section of the Code of Practice has no application to a case of an attachment sued out in one county, where defendant is served with process, and seeking the sale of land in another county; but such proceeding is governed by the 106th section, which authorizes the action to be brought in any county where the defendant resides or is served with process.
    3. By section 474 a judgment creditor, having an execution returned “no property found,” may institute equitable proceeding in the court from whence the execution issued, or in the court of any county in which the defendant resides or is summoned.
    
      4. The question whether two witnesses is necessary to overturn the
    statements of an answer, under the Code, stated but not decided. ■5. A witness, though party to the suit, having no interest however in the questions in issue, held competent to testify.
    The facts of the case are stated in the opinion of the Court. Hep.
    
    
      Benton Sy Kinkead, and Moore ¿y Wallace, for appellant—
    We suppose the Kenton Circuit Court had jurisdiction of the case, under the 106th section of the Code. One of the defendants, Haven, resides in that county, and in that county Haven and Jack were served with process. That section provides : “That every other action may be brought in any county in which the defendant, ór one of several defendants resides or is summoned.” The jurisdiction is undoubted, unless some other section requires the action to be brought in the county where the land lies. The 93d section requires the action “to be brought in the county in which the subject of the action, or some part thereof, is situated” — (3d sub-section,) “for the sale of real property under a mortgage, lien, or other incumbrance or charge.” We do not proceed under this section. We suppose it only applies to such incumbrances as exist before the commencement of this action. We are not proceeding “to enforce a moi'tgage, lien, or other incumbrance or charge.” We seek to charge the land by the attachment, which had no existence prior to the institution of the suit. The recovery of the debt is the object of the suit; and to give judgment for the debt the jurisdiction is not questioned.
    The same reasoning applies to section 105 of the code, which provides that suit may be brought against a non-resident in any county in which there may be property of the defendant, or debts owing to the defendant.
    The jurisdiction is clearly made out by the service of process, and residence in the county where the suit is brought of some of the makers of the note; and having jurisdiction for one purpose, has it for all purposes. This is still more obvious from the very general and comprehensive language of the 221st section of the code; which provides, “that the plaintiff in a civil action may at or before the commencement thereof, have an attachment against the property of the defendant.” For the reasons thereafter stated, and the fact that non-residence is one ground of the attachment. Certainly under the 106th section suit could have been brought against the makers of the note, though they were all non-residents, and service of process on them in Kenton, or any one of them gave the court jurisdiction, and having jurisdiction could issue attachments to any county in the state. It cannot prejudice the case that the attachment was asked at the institution of the suit.
    The first ground of demurrer specified in section 120 of the Code of Practice, “that the court has no jurisdiction of the person of the plaintiff or subject of the action.” Section 123 provides that, “where any of the matters enumerated in section 120 do not appear upon the face of the petition, the objection may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the petition docs not state facts sufficient to constitute a cause of action. In this case there was no demurrer, and there not being “the subject of the action,” there can be no doubt that the court had jurisdiction, and the defendants must be deemed to have waived all objections thereto.
    The pleadings under the code being all sworn to by the parties, the rule which required two witnesses to counteract the denial of an answer, has no application, and does not apply in this case.
    The money having been paid by Jack & Co., and the conveyance being to McLean, the latter holds in trust for the former, who paid the price. (2 Story's Equity, 1201; Perry vs. Head, l Mar. 47.)
    Whatever may be Haven’s condition, Fry is a competent witness. By section 670 of the Code of Practice, “persons interested in an issue in behalf of themselves, and parties to an issue in behalf of themselves, or those united with them in tire issue,” are declared incompetent. Fry occupies neither of the positions specified, and was therefore competent, and it was error to exclude his testimony.
    Whatever may be the conclusion of the court in regard to other branches of the case, the plaintiff was certainly entitled to judgment against Jack and Haven, who were served with process in the county where the suit was brought. (See Code of Practice, sections 308, 398, 402.)
    But if it was proper to dismiss the suit, it should have been without prejudice to another action. {Berry, &<?., vs. Rogers, <fc., 2 Bibb, 316; Poster vs. Hunt, fyc., 3 lb. 33; Miller us. Hall, fyc., 3 Monroe, 243; Lewis vs. Forbes’ heirs, .4 J. J. Marshall, 190; 3 Bibb, 229; 13 B. Mon., 170.
    There was no personal service on McLean.
    
      J. W. Stevenson, for McLean—
    Argued that the decree as to McLean was correct.
    1. The court had no jurisdiction. In a case seeking to subject the land of a non-resident before passage of the Code, the suit must be in the county where the land lay. If effects were to be subjected, in the county where the effects were found, or the defendant was found. (13 B. Mon., 208.)
    There was no personal service on McLean, and the land lies in Lewis county.
    By the Code of Practice it is expressly provided that “actions for the sale of real property under mortgage, lien, or other incumbrance or charge,” must be brought in the county in which the subject of the action or some part thereof lies. {Code op Practice, section 93, page 26.) But it is argued that because Jack and Haven were each summoned in the county where the suit was brought, that gave the court jurisdiction. Were this true, the whole purpose of the Code would be defeated; a party would only have to assign anote or make a nominal defendant to defeat the use and salutary purposes of the enactment. It is supposed that provision was for the protection of purchasers of real estate. That the records tof the county in which the land is situated should show the evidences of title. An attachment is in every sense an incumbrance and charge.
    
      2. On the merits of the case. McLean denies that ever Jack & Co., had any interest in the land attached, or that he holds the same in trust for them. There is no proof on the subject except the testimony of Haven and Fry, who are both incompetent witnesses. Minor, the other witness, details mainly what he heard from others; but if his evidence was directly in point, it could not avail. There are facts and circumstances corroborating his statements, and the rule which requires two witnesses, or one and corroborating circumstances to overturn the denials of the answer is not changed by the code as plaintiffs counsel suppose.
    As to the error alleged in not rendering a personal judgment against Haven and Jack, McLean has no interest.
    September 28.
   Judge Simpson

delivered the opinion of the Court.

This action was brought by the plaintiff, Nixon, in the Kenton Circuit Court. He alleged in his petition that he was the holder of a note for $3,019 03, which was executed on the 10th day of December, 1851, to Samuel Cloon, by the firm of James P. Jack & Co., and which had been assigned to him by Cloon the payee thereof; that at the time said note was executed the defendants, Jack, Goodall, Dean, and Haven, constituted the firm of Jack & Co., and that no part of the said debt had been paid. Pie also alleged that the firm of Jack & Co., owned a tract of land in Lewis county in this state, which had been conveyed by Bush, the former owner thereof, to the defendant McLean, who held it in trust for them, they having paid- all the purchase money; and that the deed to McLean was fraudulent and void as to the creditors of Jack & Co. He also states that when the land was purchased and conveyed to McLean, the firm of Jack & Co. was composed of the same members of which it was constituted at the date of the note, with the exception of Dean, whose place in the firm was then occupied by the defendant Fry, who was entitled to one-fourth of said tract of land, and therefore the plaintiff only sought to subject the other three-fourths thereof to the payment of his demand.

1. Petition in equity filed agaiust Jack-- & Co , consisting of Jack, Goodall, Dean, and Haven, attaching a tract of land in Lewis couniy; process served on Jack and Haven — tks other def’ts non residents— and dismissed by the Circuit Court— held that plaintiff was entitled to judgment a-against the defendants served with process in the c’ty where the suit was brought. (Lana-dale vs. Mitchell; 14 B. Monroe, 348.)

2. The 93d section of Code of Practice has no application to a case of an attachment stir ed out in one-county, where defendant is served with process, and seeking the sale of land in another ■county; butsuch .¡proceeding is forerned by the 06th section, ■piiiich . authorises the action to be brought in any c’ty where the defendant resides or is ser.fed with process.

Process was executed in the county where the action was brought on the defendants Haven and Jack, and the other defendants were proceeded against as non residents.

The defendant, McLean, filed his answer, in which he claimed at his own property the land in Lewis county, conveyed to him by Bush, and denied that the purchase money had been paid by the firm of Jack & Co., or that they had any interest in the land.

The Circuit Court having dismissed the plaintiff’s petition, without even rendering a judgment in his favor against the defendants who were served with process, he has appealed to this court.

The plaintiff was entitled to a personal judgment against the defendants who had been served with process, even if he failed to establish his right to subject the property attached to the payment of his debt. If he were not entitled to any equitable relief, still, as he had a right to a personal judgment against part of the defendants, the court erred in dismissing his petition against them. The case as to them should have been transferred to the proper docket, and a judgment rendered against them. (Lansdale vs. Mitchell, 14 B. Mon., 348.)

But the principal object of the plaintiff was to subject the land in Lewis county to the payment of his demand. It was the only property mentioned in his petition as belonging to the defendants, and the only property on which the attachment had been levied.

To sustain the judgment it is contended that the Circuit Court had no jurisdiction to order a sale of the land in Lewis county, that an action for that purpose i s local, and must be brought in the county where the land lies.

To sustain this position the 93rd section of the Code of Practice in Civil Cases is relied upon. That section provides that actions for the following causes must be brought in the county in which the subject of the action, or some part thereof is situated. One of the causes enumerated is for the sale of real property under a mortgage, lien, or other incumbrance or charge.

But this action was not brought for the sale of the land in Lewis county, under a mortgage, lien, or other incumbrance or charge. None was set up or asserted by the plaintiff. An existing incumbrance or charge on the land is evidently here referred to — one to which it is subject, and lor the enforcement of which the action is brought. In this case the action was instituted, not to sell the land for an existing charge, but for the pajrment of the plaintiff’s demand for which there was no lien, incumbrance, or charge upon the land. The levy of the attachment created a quasi lien upon the land during the pendency of the action. But that lien was created merely for the purpose of securing the property so that it might be subject to the final judgment of the court; and the action cannot, with any propriety, be said to have been brought to sell the land under a lien which had no existence at the time it was commenced. This action cannot, therefore, be regarded as being embraced by the 93rd section of the code. It comes within the operation of section 106, which authorizes the action to be brought in any county in which the '.defendant, or one of several defendants resides, oris summoned. If all the defendants had been non-residents, and none of them had been summoned in the county in which the action was brought, then according to section 105 it should have been brought in the county in which the land is situated. But as two of the defendants were summoned in the county of Kenton, the action was properly brought in that county, and the court below had; complete jurisdiction over the whole case.

3. By sec. 474 a judgment credl itor, having an execution returned ‘no property found,’ may institute equitable proceeding in the court froth whence the execution issued, or in the court of any county in which the defendant reside» or is summoned.

4. The question whether 2. witnesses is necessary to over-, turn the state-, ments of an answer, under the Code, stated but not decided.

It is not contemplated by the Code that every action brought -to subject land to the payment of the plaintiff’s demand, shall be brought in the county where the land lies, and in no other county. By section 474 a judgment creditor having an execution returned no property found, may institute an action by equitable proceedings in the court from which the execution issued, or in the court of any county in which the defendant resides or is summoned, and have any interest in land, legal or equitable, belonging to him, situated in any county, subjected to the payment of the judgment at law.

The depositions of Fry and Haven, two of the defendants, having been excluded by the court below, on the ground that the witnesses were interested on the part of the plaintiff, and incompetent to testify in his behalf, there remained but one witness to sustain the plaintiff’s claim in opposition to its positive denial by the defendant in his answer.

Tt is contended that the rule of law which requires the testimony of two witnesses, or of one witness and strong corroborating circumstances to overcome in a court of equity the positive denial of the defendant in his answer, should be regarded as having been abrogated by the Code of Practice, inasmuch as the pleadings on both sides, must, according to its provisions, be sworn to by the respective parties in actions by either ordinary or equitable proceedings.

On the other side it argued that there is no indication in the Code of any legislative intention to change this established rule of practice, that on the contrary, it is expressly provided in section 142, which requires a verification of the pleadings by the affidavit of the parties, that such verification shall not make other or greater proof necessary on the side of the adverse party, and that this provision authorizes the conclusion that no change in the rules of evidence was intended to be effected by the requisition that the pleadings of the parties should be sworn to by them.

5. A witness, though party to the suit, having no interest however in the quea tions in issue, held competent to testify.

If the testimony of one witness was insufficient in this case to authorize a judgment for the plaintiff against the defendant McLean, then it would be necessary to determine whether the other two depositions were properly excluded, or whether either of the witnesses was competent to testify for the plaintiff. But if either one of the excluded witnesses was competent, it will be unnecessary to decide in this case whether the rule of law referred to has been changed by the Code of Practice or not, as in that event there will be two witnesses testifying in opposition to the statements contained in the answer.

As the defendant Haven, was one of the partners of the firm of Jack & Co., when the note sued on was executed, and as the effect of his testimony would be to subject property claimed by a third person to the payment of a debt for which he is liable, and thereby exonerate himself, it is perfectly evident that he is interested, and his deposition was properly excluded.

The other witness, Fry, however, is not liable for the plaintiff’s debt, not having been a member of the firm of Jack & Co., when it was created. He has no interest in having it paid. He claims, it is true, part Of the land which the plaintiff is attempting to subject to the payment of his debt. The success of the plaintiff, and the right, of the witness both depend upon the establishment of the alleged fact, that the land actually belongs to Jack & Co., and is held in trust for them by the defendant, McLean. But the witness has not asserted his claim to the land in this action, nor can any judgment be rendered therein in his favor against his co-defendant McLean. The issue made up in the action is between the plaintiff and McLean. A judgment in favor of the plaintiff cannot be used by the witness in any subsequent litigation between him and the defendant McLean. He is a party to. the record, but he is not a party to the issue, nor directly interested in it. He could not have appealed from the judgment dismissing the plaintiff’s petition although he is a defendant. He is a necessary party to the action, only because, according to the statements in the petition, he is the owner of one undivided fourth of the land the plaintiff is attempting to subject to the payment of his debt. But as the right of the witness is conceded by the plaintiff, and there is no controversy between them, either with respect to this fourth part, or any other interest therein claimed by the witness, he has no direct interest in the subject matter in issue between the other parties, and is a competent witness for the plaintiff. (1 Greenleaf on Evidence, page 562.)

There is no testimony that Haven has transferred his interest in the land to the witness — Haven’s deposition having been excluded. But if the fact appeared in the cause, it would not affect the question of his competency, inasmuch as he has not asserted the claim in this suit, and could not use the judgment in this case, in any action which he might hereafter bring for its establishment. Besides the effect of his testimony will be to subject this part of the land to the payment of the plaintiff’s demand, to the prejudice of any interest which he claims in it as the assignee of Haven.

When the testimony of this witness is admitted, the fact that the defendant McLean purchased the land for Jack & Co., as their agent, and paid for it wúth their property is fully established. Consequently the plaintiff is entitled to a judgment for the sale of three-fourths of said land, or for so much thereof as may be necessary for the payment of his debt and costs.

Wherefore, the judgment is z*eversed, and cause remanded for a judgment in confoz’mity with the principles of this opiniozz.

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