It is assigned as error that the court erred in overruling the defendant’s plea in abatement. The suit was brought to subject to a vendor’s lien a tract of land in which it was alleged both parties had an interest. In such a suit both the defendants were, of course, necessary parties, in order to bind their interests in the land by the judgment. But it is unimportant whether there was a misjoinder of causes of action or of parties in view of the final disposition made of the *142case below. The plaintiff did not recover against any one upon ihe note except the defendant who executed it, and did not subject to the vendor’s lien any other portion of the land except that which was conveyed to this particular defendant. In the absence of a statement of facts we must presume that the proof corresponded with the judgment, that is, that it was shown that the appellant, F. E. Thompson, gave the note for the tract of land subject to the vendor’s lien. No injury therefore resulted from overruling the demurrer, and it is not important whether it was well taken or not.
The next assignment of error is to the action of the court in overruling the demurrer to plaintiff’s reply of res adjudicata to the defendant’s plea of payment. It is true that the plaintiff alleges in his reply that the same charges and items pleaded in this action were set up in another suit upon other notes given for the purchase of the lands mentioned in the petition, and that these charges and items were considered, settled, paid off and discharged by the judgment in that case. This may be true and yet the plaintiff not entitled to recover in this action. The plea alleged that the produce delivered was to be credited as well upon the note here sued on as upon the notes which were the basis of the other action. If so, it was perfectly competent in that action to show that the produce had satisfied the note here sued on as well as those claimed in that case to have been paid; and the presumption was that such proof was made, that being the state of the case made by the facts set forth in the defendant’s present plea of payment, and the plaintiffs in that case having recovered no more than a nominal judgment.
To have made the plea of res adjudicata good, it was necessary to negative the idea that the present note was taken into consideration in that case in determining how much of the produce was to be applied towards the payment of the notes there in suit. It would certainly be unjust to the defendants to reduce the amount of their payment in the former case, because a portion of the produce had been applied to the present note, and then to allow a recovery against them of the full amount of that note in this suit. This would be the effect of holding that the reply of the plaintiff was a good plea of res adjudicata to the answer of the defendants. We think the demurrer should have been sustained. As the case will be remanded for a new trial it is proper to say that the writ of error bond so taken and made in the case of Tillie A. Johnson et al. v. J. P. & F. E. Johnson *143were properly excluded on this trial, because an appeal in our State does not vacate the judgment below, but merely suspends its execution. . Hence the judgment if competent to establish a plea of res adjudicata could not be defeated for that purpose by a writ of error presented for its review. (Freeman on Judgments, section 328.) For the errors pointed out the judgment will be reversed and the cause remanded.
Reversed and remanded.
Opinion delivered November 11, 1887.