1 Ind. 382 | Ind. | 1849
This was an action of assumpsit, commenced in May, 1845, by Anthony Snelling against Wood-son Clark, Cavil Clark, and Richard Clark. The suit is founded on a note, dated the 13th of January, 1844, for the payment of 403' dollars in current paper of Indiana.
The defendants pleaded three pleas, on the first and third of which there were issues of fact. The second plea was specially demurred to, and the demurrer sustained.
The issues of fact were tried by the Court, and judgment rendered for the plaintiff.
The defendants bring the cause here, and contend that the demurrer to the second plea ought not to have been sustained.
The second plea is substantially as follows:
We think this plea is defective in substance. The first part of the plea relates to the consideration of the note sued on. The conveyance of the land for which the note was given contains a covenant against incumbrances, and the plea relies on a breach of that covenant. Supposing the existence of the debt due by the testator to be, as an incumbrance, a breach of the covenant, such breach cannot, under the circumstances, affect the present suit. The plea does not allege an eviction in consequence of the debt, nor does it allege a payment of any part of the debt
The other part of the plea, which states the plaintiff’s agreement not to sue -until the determination of a certain
The judgment is affirmed with 5 per cent. damages and costs.
See Streeter v. Henley, post.