Cooley v. Brayton. 437; Swiggart v. Harber, 4 Scam., 364; Doe v. Gildort, 4 How. (Miss.), 267; McMahan v. Colclough, 2 Ala., 68; Miles v. Knoll, 12 Gill & J., 442; Bank, &c. v. Pettes, 13 Verm., 395, and cases cited. Cases where the writ is simply erroneous and irregular are to be distinguished from cases where it is void; as in Peter v. Haskell, 11 Me., 177, the writ was held to be, for want of seal. III. The defendant offered to prove that the execution above described "had been interlined after the same had been issued and after the levy had been made thereon by the sheriff, by the insertion of the word 'hundred' where the same first occurs in the said writ, without any order or direction from the Judge or Court." This testimony was excluded, and this is the next error assigned by the appellant. The proposal was not accompanied by any offer to show that the plaintiff in the writ (Wahl), or his assignee (Cooley, the present plaintiff), made the alteration, or knew of it; or that it wrought any injury, or was made with any intent to defraud. On the contrary, for aught that appears, it might have been made by a stranger, or what is more probable, by the clerk himself, without plaintiff's knowledge or consent. Add to these circumstances the fact that the word alleged to have been inserted was immaterial, as the same amount is stated in a subsequent portion of the writ, as to which it is not claimed that there was any alteration, and it is manifest that the proposed evidence was properly rejected. See Merrick v. Wallace, 19 Ill., 486, where it was held that an alteration of a public record could not affect an innocent party. Keyes v. Chapman, 5 Conn., 169; Roberts v. Church, 17 Id., 142. The case of Brier v. Woodbury, 1 Pick., 362, cited by appellant, does not militate with the above view. This was a case where the execution was altered in a most material respect by an ex-deputy sheriff, who being a constable at the time he received the writ addressed to him as deputy sheriff, fraudulently and without consent, inserted Cooley v. Brayton. a direction in the writ authorizing him as constable to collect the money, and it was considered that the writ was the same, "as though no such direction appeared," and per consequence that payment to him did not discharge the debt. IV. The instructions of the Court given and refused, present questions as to the validity, nature and conclusiveness of the decrees in the two separate foreclosures against Fayette Phillips et al., the plaintiff being the purchaser at the Wahl foreclosure, and the defendant at the Smith Brayton foreclosure. The Smith Brayton mortgage was the junior mortgage, and suit was brought by him on the 8th of February, 1859, to foreclose the same. Phillips, the mortgagor, and others were made parties, and the decree recites that Wahl was a party. It is claimed by the appellee that Wahl was not a party, inasmuch as he was not personally served, made no appearance, and was materially misnamed in the printed notice of publication, being named Wahe instead of Wahl. The printed notice not being before us, we are not able to determine the validity of this objection in point of fact, and in the view we take of the case, the question is not of controlling materiality. From the record before us, it appears that on the 6th day of September, 1859, Smith Brayton obtained his decree of foreclosure against Phillips as mortgagor and Wahl and others as incumbrancers. His petition is not before us, so that we can see what it alleged as to the Wahl interest in the mortgaged premises. But by the decree, which was by default, it is, inter alia, ordered "that the said defendants and all persons claiming or to claim any interest in said lands from, or under them, and all persons having a lien subsequent to said mortgage [of Smith Brayton] by judgment or decree, and all other persons claiming any interest in said premises subsequent to the recording of said mortgage, &c., be forever barred," &c. VOL. XVI.-3 Cooley v. Brayton. It is not material to determine whether this decree was intended to bar the Wahl mortgage, that being dated and recorded prior to the Smith Brayton mortgage. We put the case on the most favorable ground for the appellant and assume that this decree did purport to bar and foreclose Wahl. On the 27th day of December, 1859, the appellant (John M. Brayton) purchased the real estate in controversy under this decree, which thus becomes the foundation and source of his title. It now becomes necessary to recur to the Wahl mortgage and the proceedings thereunder, that being the foundation and source of the plaintiff's title. In the July before Smith Brayton obtained his decree, viz.: on the 28th day of July, 1859, Wahl commenced to foreclose his mortgage, making Phillips, Smith Brayton and others, parties defendant. Wahl distinctly alleged in his petition "that the said Smith Brayton has a mortgage on the same property, which was executed and recorded subsequent to the mortgage of your orator." On the 5th day of September, 1859 (the day before his final decree was rendered), Smith Brayton files an answer admitting that he has a mortgage; denies the allegation that it was subsequent to Wahl's, but on the contrary says it was executed and recorded prior to his. Although this suit remained pending for over two years after Smith Brayton obtained his decree, he never filed any answer setting up that decree, or insisting on the priorities which it is now claimed that decree gave him. John M. Brayton was not a party to the Wahl foreclosure. On the 12th day of April, 1862, Wahl obtained his decree. There was an express adjudication of the respective rights of Wahl and Smith Brayton, the Court finding and decreeing the lien of the plaintiff's (Wahl's) mortgage to be "prior and paramount to the lien of the said Smith Brayton." This is the last decree, and it is conclusive on Smith Brayton. If the question of priority had been before Cooley v. Brayton. adjudicated by the Smith Brayton decree of September 6th, 1859, it was Smith Brayton's duty, if he relied on that adjudication, to have set it up as an answer to Wahl's clain of precedence in his petition. He failed to do so, and he is, beyond all question, bound and concluded by the latter decree, which declares him a subsequent incumbrancer and bars his equity. Campbell v. Ayers, 1 Iowa, 257. We have now reached the question, whether this decree was equally binding, or binding at all on the appellant, he not being a party thereto. He purchased pendente lite and is constructively bound. At the date of his purchase not only had the Wahl foreclosure proceedings been commenced, but Smith Brayton (under whom the appellant claims) had answered therein. Under these circumstances the appellant was not a necessary party upon the general principles of equity practice. "Incumbrancers who become such pendente lite, are not deemed necessary parties, although they are bound by the decree; for they can claim nothing except what belonged to the person under whom they assert title, since they purchase with constructive notice; and there would be no end to suits if a mortgagor might, by new incumbrances, created pendente lite, require all such incumbrancers to be made parties." Story's Eq. Plead., § 194. Grounded upon the same reasons, the same rule would apply to purchasers pendente lite. We may remark, in passing, that, by the Revision, which, however, did not go into effect till September, 1860, the doctrine of lis pendens has even been enlarged; and it is enacted that when a petition is filed affecting real estate, and "while it is pending, no interest can be acquired by third persons in the subject matter thereof as against the plaintiff's title." §§ 2842, 2843. Coincident with the views above expressed were those of the learned judge who tried the cause below, as shown by his directions to the jury; Parks v. Davis. and those directions were, therefore, in the opinion of this court, correct. Judgment affirmed. PARKS V. DAVIS et al. 1. MISTAKE: EXECUTION. Where, in issuing a special execution, the clerk, by a clerical mistake, misdescribed a portion of the land ordered to be sold by the special judgment under which it was issued, and the land as described in the execution was sold and conveyed to the plaintiff, it was held, that by a proper showing the plaintiff could have the sale of the tracts misdescribed set aside, and the entry of satisfaction on the execution canceled. 2. NEGLIGENCE OF THE CLERK. Where an injury arises by the negligence or fault of the clerk, without any corresponding negligence on the part of the party injured, he will be held responsible on his own bond; but he is not liable where, but for the negligence of the party complaining, the injury would not have occurred. Appeal from Jasper District Court. WEDNESDAY, APRIL 13. THE circumstances giving rise to this suit may be stated as follows:-In October, 1859, the plaintiff obtained a special judgment of $1,221.12 against certain real estate therein described, to wit: Lots 6, 7 and 10, in section 21; lot 2 in section 3; all in T. 78, R. 17, west. Also the S. W. of the S. W. qr. of sec. 35, in T. 79, R. 17, west. A certain portion of this judgment was afterwards assigned to Cox & Shelley, of Keokuk. In March, 1861, the clerk of the District Court of said county was directed to issue on said judgment a special execution against the property therein described. In doing so he describes the last tract as the S. W. qr. of section 35, instead of the S. W. qr. of the S. W. qr. At the sheriff's |