134 Ind. 527 | Ind. | 1893
Appellees’ petition was to enjoin the enforcement of an execution against lands specifically-alleged to have been purchased by appellees at the sale by the executors of Joshua Buroker. It further appeared that the execution was upon a judgment against Jacob P. Buroker, and in favor of the appellants.
The appellants insist that we must presume against the title so specifically alleged; that the execution debtor Was a son of the testator, and that he was not a defendant in the proceeding to sell, under the direction of the will for the payment of the debts of the estate, and by the existence of such presumptions that the complaint must be held bad on demurrer, in that it would thus appear that the interest, by descent or by devise, of such son was not divested by such sale.
The complaint alleged title in the testator, and alleged
To an answer by the appellants, setting up the relationship of said Jacob P. Buroker to the testator, and that the said Jacob was not a party to said proceeding to sell, the appellees replied that Jacob was a householder, and entitled to an exemption; that his property, real and personal, including his interest in the lands in question, was of less value than three hundred dollars; that said property was not subject to the lien of appellants’ judgment. A demurrer to this reply was overruled.
Upon special findings of fact, the court stated as a conclusion of law that said property was exempt from execution against said Jacob.
It was not alleged in the reply, nor was it found by the court, that the judgment from which said property was so held exempt was upon contract, express or implied.
It is only upon contracts, express or implied, that the right of exemption is secured, and in pleading such right, or in finding the facts upon which to .predicate such right, it must appear that the contract was of the character authorizing it, and a general allegation of the existence of such right is insufficient. Russell v. Cleary, 105 Ind. 502; Huseman v. Sims, 104 Ind. 317; State, ex rel., v. McIntosh, 100 Ind. 439; Guerin v. Kraner, 97 Ind. 533; Berry v. Nichols, 96 Ind. 287; Boesker v. Pickett, 81 Ind. 554; Thompson v. Ross, 87 Ind. 156; Keller v. McMahan, 77 Ind. 62; Over v. Shannon, 75 Ind. 352; State, ex rel., v. Melogue, 9 Ind. 196.
We have not been aided by a brief on behalf of the