majority">Stuart, J.

McQuilty purchased two lots in Greensbwrg from the other defendant, Dillier. He paid all the purchase-money, except the last note, on which there was judgment at law. After several assignments, the judgment finally came into the hands of Dart. He filed this complaint in the nature of a bill in chancery, to reach the equity of McQuilty—mailing the vendor, Dillier, a party.

Dillier and Me Quilty answered that the former owned only two-thirds of the lots, and could not convey according to contract.

Replication, that the failure of consideration resulting from Dillier's imperfect title had been set up as a defence at law in the suit by the assignee against Me Quilty on the last note, and could not be again set up as a defence.

Demurrer to the replication sustained, and the bill dismissed.

This was error. McQuilty had some interest in the lots. Whatever that interest might be, it was subject in equity to the execution for the use of Dart. Bryer v. Chase, 8 Blackf. 508. Had McQuilty elected, at the proper time, to rescind the contract, in consequence of the partial failure of the consideration, he would have been entitled to thé purchase-money and interest, and had a *392lien on the lots for it. Shirley v. Shirley, 7 Blackf. 452. Having elected to retain the lots, he had an equitable interest, at least, to the extent of Dimer’s title, viz., two-thirds. To this extent the complainant was clearly entitled to a decree, subjecting McQuilty’s equitable interest to execution.

B. W Wilson and S. A. Bonner, for the appellant.J. Byman, for the appellees.

If the want of parties was the ground of objection in the Court below, the bill should not have been dismissed, even under the old practice. Stanley v. Beatty, 4 Ind. R. 134.—Park v. Ballentine, 6 Blackf. 223.

Per Curiam.

The decree is reversed with costs. Cause remanded, &c.

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