Walker et al. v. Hill et al.

therein, or it will not be good as to any of them. Where two or more appellants join in one assignment of errors, if they jointly complain in any specification or paragraph of such assignment of a ruling against one of them only as error, such specification or paragraph of error can not be sustained as to any one, because it is not well assigned by all who have joined in such assignment. Hinkle v. Shelley, 100 Ind. 88; Tucker v. Conrad, 103 Ind. 349; Hochstedler v. Hochstedler, 108 Ind. 506. This conclusion disposes of the first ten errors complained of here by the appellants, and we pass to the consideration of the eleventh alleged error, namely: The sustaining of Joanna Hill's separate demurrer to appellants' joint reply to the fourth paragraph of appellees' joint answer.

The fourth paragraph of appellees' joint answer was filed as a partial defence to the third paragraph of appellants' complaint. It was shown by the allegations of the third paragraph of complaint that appellants' father, William R. Walker, prior to May 17th, 1851, died intestate, and seized in fee simple of the real estate now in controversy, and that he left, as his only surviving children and heirs at law, the two appellants and one John Walker, all of whom were then minors under the age of twenty-one years. It was further shown that the interest of said John Walker in such real estate was sold and conveyed, upon the petition of the legal guardian of John Walker and pursuant to the orders of the proper court, to the Peru and Indianapolis Railroad Company; and that, before the commencement of this suit, the said John Walker died intestate and without issue, leaving the appellants, his brother and sister, as his only heirs at law. The fourth paragraph of appellees' joint answer was pleaded in bar of that part of the third paragraph of complaint wherein appellants, as the only heirs at law of their deceased brother, John Walker, sought to have their title, as such heirs, quieted in and to the real estate in controversy, as against appellees.

Walker et al. v. Hill et al.

In such fourth paragraph of their answer, appellees alleged that, in the lifetime of John Walker, to wit, on the day of February, 1858, said John Walker brought an action for the recovery of the real estate now in controversy against one William Rowley, in the Jennings Circuit Court; that, on that day, and for a long time afterwards, William Rowley was in possession of, and claiming title to, such real estate under and by reason of the aforesaid guardian's sales and conveyances, and under and by virtue of no other claim or title whatever, the said Rowley being the grantee of the Peru and Indianapolis Railroad Company; that such proceedings were had in said action that judgment was therein rendered by the court against John Walker, and in favor of William Rowley, that John Walker was not the owner of such real estate or of any part thereof, and was not entitled to possession thereof; that such judgment had never been reversed, annulled or set aside, but remained in full force; that it was rendered on the same cause of action mentioned in the third paragraph of appellants' complaint in this case, in so far as such paragraph sought to recover the interest in such real estate which, before said guardian's sales, belonged to said John Walker, since deceased; and that said William Rowley was a grantor of the appellees, and they claimed title to, and were in the possession of, such real estate through said William Rowley, and through and under the title thereto which he successfully opposed to John Walker's action.

It is claimed by appellants' counsel, that this fourth paragraph of appellees' joint answer was not good even as a partial defence to the cause of action stated in the third paragraph of the complaint herein. If this claim of counsel were correct, then, as appellees' demurrers to appellants' joint reply to such fourth paragraph of answer searched the record, such demurrers ought to have been carried back and been sustained by the court to such paragraph of answer. In discussing the alleged insufficiency of the fourth paragraph of appellees' joint answer, appellants' counsel say: "The

Walker et al. . Hill et al.

adjudication referred to in this paragraph did not establish Rowley's title. The pertinent question now is, where and how did appellees derive their title? They must rely on the strength of their own title, and not on the weakness of ours." It is true, perhaps, that the adjudication did not establish Rowley's title; but it did establish conclusively that John Walker and the appellants, in so far as they claimed under John, had no such title to the real estate as would enable him or them to recover the interest which John Walker had therein prior to the guardian's sales, either from William Rowley or from the appellees who claimed under Rowley. That far forth, the adjudication pleaded in the fourth paragraph of appellees' joint answer constituted a complete bar to the maintenance of appellants' action. Campbell v. Cross, 39 Ind. 155; Parker v. Wright, 62 Ind. 398.

Appellants' counsel do not state the law correctly, as applicable to this case, in the above quotation from their brief herein, when they say that the appellees "must rely on the strength of their own title, and not on the weakness" of appellants' title. The reverse of this statement is the law in the case under consideration. The appellants were the plaintiffs and the appellees were the defendants in the case in hand. The rule is old, and almost elementary, which requires that, in such an action, the plaintiff must recover, if he recover at all, upon the strength of his own title; and that, unless he have a good and sufficient title, the weakness of the defendant's title, or his want of title, will afford the plaintiff no ground for recovery. Huddleston v. Ingels, 47 Ind. 498; Williams v. Venner, 53 Ind. 396; Shipley v. Shook, 72 Ind. 511; Brandenburg v. Seigfried, 75 Ind. 568; Castor v. Jones, 107 Ind. 283.

We are of opinion that the facts stated in the fourth paragraph of appellees' joint answer were sufficient to constitute a good partial defence to the third paragraph of appellants' complaint.

In their joint reply to such fourth paragraph of appellees'

Walker et al. v. Hill et al.

joint answer, the appellants alleged that, on the 25th day of February, 1858, suit was commenced in the Jennings Circuit Court in the name of John Walker, as plaintiff, against William Rowley, as defendant, for the recovery of the undivided one-third part of the real estate now in controversy; that at the March term, 1858, of such court, said Rowley appeared to such action and filed an answer to the complaint therein, which answer the appellants herein allege, in their joint reply, consisted of a transcript of the proceedings of the Jennings Probate Court at its May term, 1851, upon the joint petition of the guardian of said John Walker and Thomas T. Walker, one of the appellants herein, and of the guardian of Eleanor Walker, now Eleanor Baxter, the other appellant herein, for the sale of the real estate in controversy in this action; that it was shown by such answer or transcript that the prayer of the joint petition of such guardians was granted by the court, and they were authorized by an order of the court to sell such real estate of their said wards at private sale; that such guardians afterwards reported to such court, at its August term, 1852, that pursuant to such order of the court they had sold such real estate of their said wards, at private sale, to the Peru and Indianapolis Railroad Company for the sum of $2,525 in the stock of such railroad company; that such sale of said real estate was then and there, in all things, approved and confirmed by the court, and a commissioner was appointed by the court to execute and deliver to the purchaser a deed of such real estate; that thereupon such commissioner executed and acknowledged a deed conveying such real estate to said railroad company, and reported such deed to said court; and that such deed of conveyance was approved and confirmed by

such court.

Appellants further alleged in their joint reply, that at the March term, 1858, of the court below, a demurrer was filed in the name of John Walker to the second paragraph of Rowley's answer, which demurrer was overruled by the

Walker et al. v. Hill et al.

court; that John Walker excepted to such ruling, and refused to reply or plead further; and that the court then adjudged that the title to such real estate was in William Rowley, and not in John Walker, and that Rowley go hence and recover of Walker his costs in that behalf expended.

Appellants further alleged, that the second paragraph of Rowley's answer, to which John Walker's demurrer was directed and sustained, was never in fact filed; that William Rowley only owned, in fact, the undivided one-half of the real estate described in John Walker's complaint in such suit, the other undivided one-half thereof being owned at the time, or pretended to be owned, by one John Rowley, who was not a party to John Walker's suit; that such pretended judgment was rendered without any issue of law or fact, upon the overruling of a demurrer to a paragraph of answer which was in fact never filed; that John Walker became of age on August 6th, 1856, and was not a resident of this State after January 1st, 1854, and was not in this State during the pendency of his suit against Rowley, or when the judgment was rendered therein, and that he died soon afterwards at Vicksburg, in Mississippi, where he had long resided; that appellants did not know of the rendition of such judgment against John Walker until after they commenced this suit; and that appellants were the only heirs at law of John Walker, deceased. Wherefore, etc.

It is very clear that the trial court committed no error in sustaining appellees' demurrer to this joint reply of appellants to the fourth paragraph of appellees' joint answer. In this reply, appellants vigorously assail the adjudication pleaded by appellees in such fourth paragraph of their answer, as a partial defence to the cause of action stated in the third paragraph of complaint herein. But appellants' attack upon such adjudication is a collateral one, and although they have pointed out, in their joint reply, a number of defects in the proceedings and judgment in the suit of John Walker against William Rowley, some of which might, perhaps, have