Cline v. Crump

11 Ind. 125 | Ind. | 1858

Hanna, J.

This was a suit upon three several judgments, which had been entered, upon confession, by a justice of the peace.

There is a single paragraph in the answer, to which a demurrer was sustained; and upon this ruling error is assigned.

The answer sets up, in effect, that Cline was indebted to the plaintiff in the amount of the judgments; that by agreement with them, he gave his notes so as to bring the sum within the jurisdiction of a justice of the peace, and confessed the judgments upon which suit is brought; that it was further agreed that the plaintiffs were to take the land of the defendant .in satisfaction of said judgments, and were to pay certain liens thereon; and “that they would never trouble him any more” about said judgments; that he, relying upon, &c., did execute his notes and confess the judgments; but that the plaintiffs never paid off said liens, “and absolutely refuse to comply upon their part;” and, therefore, said judgments were obtained by “fraud, covin, and misrepresentation,” and are void.

We think the demurrer was correctly sustained. It appears that Cline owed the plaintiffs; that he confessed judgments for the amount. There is no averment that he ' has paid those judgments; but that they were obtained by fraud, ill this, that the plaintiffs agreed to purchase certain land of Cline, which purchase should absorb these judgments and pay certain liens. If the contract in regard to the land was binding upon the plaintiffs, Cline is entitled to his remedy to enforce it or to recover his damages for a breach for the non-performance of it. If it was not binding, perhaps it is because of his own negligence in the manner of making or evidencing the contract. But we cannot believe that under the circumstances of this case, a failure, upon the part of the plaintiffs, to perform their part of the contract, or a misrepresentation as to an intention to perform it, would have the effect of avoiding the judgments confessed for a bona fide debt. Hutton v. Denton, 2 Ind. R. 644.—Anderson v. Fry, 6 id. 76.—Dilling v. Murray, id. 324.—Zeigenhager v. Doe, 1 id. 396—Doe v. Smith, id. 451.—Davis v. Lane, 2 id. 548.

C. C. Nave, for the appellant ⁽¹⁾. J. M. Gregg, for the appellees.

Per Curiam. — The judgment is affirmed with costs.