NOTE.

Owing to severe and prolonged illness, the Reporter was unable
to prepare the Index to this volume. That labor was performed
by JAMES S. HESTER, Esq., to whom the Reporter is under many
obligations for the assistance thus kindly rendered him.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF INDIANA,

AT INDIANAPOLIS, MAY TERM, 1850, IN THE THIRTY-FOURTH
YEAR OF THE STATE.

FOUST v. MOORMAN and Others.

The plaintiff obtained partition of certain land. His right to claim parti-
tion was based on sheriff's deeds for two shares of said land; he had
never taken actual possession. Held, that actual possession was not es-
sential in such case, provided the defendant was not legally disseized.
A distinction is recognised between the mere possession of the plaintiff's
share by a third person, or by the defendant and a legal disseizin.
The possession of an execution-defendant is not adverse.

A strong suspicion is not sufficient, but the evidence should be clear
and undoubted to charge the purchaser with notice of title in a third
person.

In proceedings for partition, when the title is disputed, the plaintiffs will be sent to law to have the title established; but when the question arises on an equitable title set up by the defendants, the Court of Chancery will decide, for equitable titles belong to it, and the parties cannot be sent to law.

APPEAL from the Randolph Circuit Court.

PERKINS, J.-Tarlton Moorman filed a bill in chancery in the Randolph Circuit Court against the nine heirs of Christian Foust, deceased, praying partition of the lands descended from said Foust to those heirs. His right to claim VOL. II.-3

Monday,
May 27,

1850.

FOUST

V.

May Term, partition is based upon sheriff's deeds for the shares of two of said heirs, Lewis and James Foust, which deeds recite that said Moorman became the purchaser of those shares, at sheriff's sale, on the 27th of June, 1840. The Court below decreed partition, and Christian Foust, one of said heirs, appeals to this Court, and insists:

1. That Moorman, claiming title by virtue of a sheriff's sale and deed, and never having taken actual possession of the land, cannot maintain a bill for partition.

"But actual possession is not essential in such a case, provided the party is not legally disseized. Monroe v. Walbridge, 2 Aik. 410. And for this purpose a distinction is recognised between the mere possession of the plaintiff's share by a third person, or by the defendant, and a legal disseizin." Clapp v. Brougham, 9 Cowen, 556.—Barnard v. Pope, 14 Mass. 434. If, indeed, the party is effectually disseized, even by a co-tenant, he is then barred of this remedy, because they no longer hold the estate together. Co. Lit. 167.-5 Cow. Dig. 166.— Hawley v. Loper, 18 Vt. R. 320.

2. Foust insists that the sheriff's sales were void on account of the adverse possession, at the time, of the execution-defendants, and their co-tenants, and that, hence, Moorman has no title.

But the possession of execution-defendants is not adverse. Varick v. Jackson, 2 Wend. 166.-Snowden v. McKinney, 7 B. Mon. 258.

3. Long before the sheriff's sales in question, Lewis and James Foust had sold their respective shares to said Christian Foust, received their pay for them, and executed to him title-bonds therefor; and it is insisted that Moorman had notice of this equitable title, at and before his purchases.

He had not notice by the possession of Christian, for said Lewis and James continued in possession as formerly, from the time of their sales to him, till after the sales by the sheriff to Moorman.

But one witness swore to positive notice, and as to him, aside from some unfavorable circumstances developed in