53 Ind. 193 | Ind. | 1876
Suit on a promissory note, not negotiable by the law merchant, secured by mortgage, brought by the appellee against the appellant. The note was payable to the order of James M. Ray, executor of Jeremiah McChesney, deceased, endorsed by the payee to Sarah G. McChesney, and by her to G. G. McChesney, who endorsed it to the appellee. The answer to the complaint will sufficiently show the facts upon which the only question contested in. the case arises.
“ Naomi J. Boaz, defendant, for answer to the complaint in the above entitled cause, says that on the 10th day of August, 1867, Jeremiah McChesney, then living, executed his last will and testament, a copy of which is herewith filed and marked exhibit ‘A.’ She further says that in said will the said Jeremiah McChesney appointed James M. Ray his sole executor, and provided that said executor, acting upon his best judgment, should sell the real and personal estate of said testator, either at public or private sale, with or without notice or appraisement, for cash or on credit, or both, and at such price as he should deem best, without any
The sufficiency of this answer to bar the action, raised by a demurrer for want of alleged facts, is the main question in the case, and the only one discussed by the parties in their briefs.
It is plain that the will cannot be construed as a contract between the devisor and the purchaser of the land to convey it with a covenant against incumbrances; there is no such contract between the executor and the purchaser alleged in the answer; and there is no such covenant contained in the deed accepted by the purchaser. We cannot perceive, therefore, upon what ground the answer can stand. It is true, the will empowers and directs the executor to sell any of the real or personal estate of the devisor, and convey the same, in his discretion, “by good and sufficient title.” Conceding that these words, used in a contract between a ven
Foltz v. Peters, 16 Ind. 244; Clarke v. Henshaw, 30 Ind. 144; and Headrick v. Wisehart, 41 Ind. 87.
There is no error in the record. The judgment is affirmed, with costs.