16 Ind. 244 | Ind. | 1861
Wilgus, in his lifetime, contracted in writing
Afterward, Ford assigned the contract, in December, 1856, to Peters, with a credit of six hundred and forty bushels of corn, and $118, indorsed thereon. Peters filed the contract as a claim against the estate of Wilgus.
Foltz set up certain facts, first, as a payment of the said claim; apd, second, as an estoppel, &c.; namely, that at the time the contract was made, and to secure the due performance thereof, Ford took a mortgage from Wilgus on certain lands, &c., which was also assigned to Peters ; that said lands were of the value of $3,100, and were encumbered by another mortgage for $1,279, of which Peters had notice; that Wilgus died in January, 1856, and in July, 1856, defendant filed his petition to sell these lands, &c.; that they were appraised at nothing, subject to said liens, which amounted to' $1,100, and were sold to the said Peters for one dollar, subject to said mortgages ; that a deed was made and delivered to him therefor.
A demurrer was filed to these answers, stating that they did not show facts sufficient, &c., in this, that they did not aver that the said lands, so mortgaged and purchased, were of as much value as the mortgage of the purchaser, after paying the said prior lien. The demurrer was sustained, which presents the only point made here.
The appellant has cited us to but one authority upon which he relies, viz., 2 R. S., § 89, p. 269; which provides, that, whenever any executor, &c. shall sell any lands subject to any lien or charge thereon, he may take a bond of the purchaser, with sureties, conditioned that such purchaser will make all payments, and indemnify him a.nd all persons interested, &c. against all liabilities of the deceased on account of said land.
It is insisted that this statute changes the rule laid down in the cases of Murphy v. Elliott, 6 Blackf. 482; and Johnston v. Watson, 7 id. 171. In those cases it was substantially decided, that if he who held a lien on real estate should purchase it in, it operated as an extinguishment of the lien, to the value of the property, and no more. With those decisions in view, as enunciating the correct rule of law at the time of the
The judgment is reversed, with costs. Cause remanded, &c.