Carter v. Fately, 67 Ind. 427

Carter v. Fately

67 Ind. 427 | Ind. | 1879

Biddle, J.

Complaiut to recover the possession of a mai’e.

The appellant, who was defendant below, answered in two special paragraphs, the second of which is in the words following:

“2. The only claim or demand of plaintiff to said property, or the possession thereof, is as follows : Defendant mortgaged a certain wagon to one James Iiarker, to indemnify him as surety for defendant on certain notes of defendant to third parties, Harker suffering and permitting defendant to retain possession of said property; thereafter said Harker gave defendant permission and authority to sell or trade off said wagon, and in pursuance thereof defendant exchanged the same with plaintiff' for the mare in suit, he, plaintiff', being ignorant of even the existence of said mortgage. After said exchange, which was well known to said Iiarker, he suffered and permitted plaintiff'to keep and hold said wagon for, to wit. one year, when the same was demanded of him under said mortgage, and, before the surrencler thereo^ defendant notified *428plaintiff of said leave and permission to trade said wagon, and required of him that he refuse to surrender the same until required by due process of law, yet, notwithstanding said notification and requirement, plaintiff voluntarily surrendered said wagon on said demand.”

The first paragraph of answer alleges the same facts, but more in detail, and avers the assignment of the mortgage, by Ilarker, toIlill and Stearns, who demanded and received the wagon from the appellee, but differs nothing in principle from the second paragraph.

Without stating the proceedings any further, we may at once say that the court sustained separate demurrers to each paragraph of answer, for the want of sufficient facts to constitute a defence, and that these rulings present the only questions in the case.

No brief has been filed on behalf of the appellee. We are, therefore, not aware of his views concerning his rights in the premises ; nor are we informed upon what ground the court held either paragraph of the answer insufficient. Each of them seems to us to be good. When ilarker left the wagon mortgaged to him in the possession of the mortgagor, and gave him license to sell or trade the same, and had full knowledge that the mortgagee, under said license, had exchanged the wagon to the appellee, who had no knowledge of the mortgage, for the mare in suit, and with this knowledge allowed the appellee to keep the wagon one year after he had so exchanged his mare for it, he estopped himself from demanding the wagon from the appellee under the mortgage; and the assignees of the mortgage afterwards are as effectually barred by the estoppel against Ilarker as Ilarker was himself. The appellee had a good title to the wagon, and he should have defended it against the mortgagee or his assignees. Not having done so, upon notice, he is not in a position to replevy the mare he exchanged for the wagon. The doctrine of estop*429pel by matter in pais is familiar to the profession. Woodward v. Wilcox, 27 Inch 207 ; Williams v. Jackson, 28 Inch 334; Johnson’s Adm’r v. Unversaw, 30 Inch 435 ; The State, ex rel., v. Pepper, 31 Ind. 76; McCabe v. Raney, 32 Ind. 309.

• Perhaps the appellee could not replevy the mare, if his title to the wagon had failed ; but, as this question is not necessarily involved in the case, we do not decide it.

The judgment is reversed, at the appellee’s costs ; cause remanded, with instructions to overrule the demurrers to the first and second paragraphs of answer, and for further proceedings.