ON PETITION FOR REHEARING We were in error when we stated in the original opinion that the record did not disclose that Rose Tobin was a witness or present at the trial of the case of McClellan v. Beatty. We were led into this error due to the indefinite statement of the evidence in appellant's brief. We have examined the record and do find that the appellant was present and did testify *Page 348 in the said cause of McClellan v. Tobin. We do not regard this misstatement as material.
The record discloses that in the case of McClellan v. Beatty the appellant herein petitioned to be made a party to that action which petition was denied and from which no appeal was ever 9. taken. Under these circumstances Rose Tobin could not possibly be considered as bound by the judgment rendered in that cause.
The appellant insists that it appears from the record that the damages that were awarded were excessive and that we failed to pass upon this question in our original opinion. We did 10. not decide this question for the reason that the same was not briefed by the appellant. Appellant's brief under propositions, points and authorities contained no proposition concisely stating the basis or reason why said damages were excessive nor in appellant's argument is there anything mentioned as to the excessiveness of the damages awarded. We have, however, since the petition for rehearing was filed, and due to appellant's insistence, examined the record as to this question. From this examination we have concluded that there was sufficient evidence to warrant the trial court in making this award. Appellee produced evidence as to the rental value of the involved premises, that appellant was in possession at the time appellee acquired the property, and that she has never surrendered possession to him. It also appears that after the suit was started appellant withheld possession by giving a bond for retention of the possession pending the cause as provided by § 3-1306, Burns 1946 Replacement.
Appellant, in her petition for rehearing, contends that our original opinion shows that the judgment rendered in the case of McClellan v. Beatty, which case *Page 349 is fully discussed in our opinion, was a judgment in rem and therefore was binding on strangers as well as parties and privies thereto. She also advances the motion that the opinion shows that the judgment comes under a well recognized exception to the rule that judgments are binding only on parties and privies in that said judgment constitutes a link in the chain of title of the appellee to the property in question.
It is our opinion that said judgment was not a judgment inrem. "Actions in rem strictly considered, are proceedings against property only, treated as responsible for the 11. claims asserted by the libelants or plaintiffs. . . . The court acquires jurisdiction over the property in such cases by its seizure, and of the subsequent proceedings by public citation to the world, of which the owner is at liberty to avail himself by appearing as a claimant in the case." Freeman v.Alderson, 119 U.S. 185, 7 Sup. Ct. 165, 30 L.Ed. 372.
There are various classes of actions which are not strictly inrem which are generally designated as proceedings quasi in rem. Such an action is brought against persons and only 12. seeks to subject certain property of those persons to the discharge of the claims asserted and any judgment therein is only conclusive between the parties and their privies.Freeman v. Alderson, supra, 2 Black on Judgments, (2d ed.), § 793.
It is true that a judgment or decree "when it constitutes a link in a chain of title, is competent and admissible evidence, in that character and for that purpose, not only against 13. the parties to the record but against all the world. . . . But this exception to the general rule must be carefully confined to its legitimate boundaries. Not every judgment affecting *Page 350 the title to land is admissible evidence in a suit between strangers. To have that quality the adjudication must constitute an actual and necessary part of the chain of title alleged by the party who offers it." 2 Black on Judgments, (2d ed.), § 607.
The judgment in favor of Beatty and against the appellee is not a link in appellee's chain of title and does not constitute a part in the muniments of his estate, nor does it give construction to a link in appellee's chain of title.
Petition for rehearing denied.
NOTE. — Reported in 75 N.E.2d 149.