167 Ind. 569 | Ind. | 1906
Lead Opinion
Appellants instituted this action against Milton Shirk to recover a personal judgment upon contract. Before answer was filed Milton Shirk died. His death being suggested, Ellen W. Shirk, 'his executrix, was substituted as the sole party defendant, and filed a separate demurrer to the additional second and third paragraphs of the complaint. The demurrers were sustained, and, the plaintiffs refusing to amend, judgment was, on April 27, 1904, rendered against them for costs. On February 13, 1905, more than one hundred days, but within one year, after the rendition of said judgment, the record of this appeal was filed in the Appellate Court. No appeal bond was filed within ten days from the rendition of said judgment, and no order of the Appellate Court, or this court was made within one year after such decision granting the appeal.
This action had its origin in these facts: Milton Shirk, as executor of E. H. Shirk, held the record title to certain lots abutting on Kentucky street, in the city of Kokomo. In the improvement of this street, under the Barrett law, assessments of special benefits were lodged against the lots, and Milton Shirk, as executor of E. H. Shirk, executed a written waiver of irregularities, and promised to pay the assessments, and secured thereby, for the estate of E. H. Shirk, the right to pay the assessments in ten annual instalments. Appellants, as 'the owners of the defaulted bonds issued against said lots for the improvement, foreclosed and sold the lots, and, not realizing enough to pay the costs and full amount of the assessments, instituted this action on said contract of waiver against Shirk in his individual capacity, to recover the balance.
It is manifest that the decision complained of did not grow “out of any matter connected with a decedent’s estate,” but out of an alleged breach of contract with Milton Shirk.
Appellee further contends that there is nothing for decision, because the complaint upon which the only question arises, and also the final judgment, are not in the record. What purport to be the additional second and third paragraphs of the complaint—those to which' the demurrers were sustained'—and a final judgment are present' in the record, and it is claimed that they are not properly there because not called for in the precipe nor certified by the clerk.
This ruling of the court is the only “error and exception relied on.” So much of the record, then, as fully presents this question is all that is required by the rule. When the question arises upon the pleading, it is seldom necessary, under the rule, to set out the particular pleading in full, though it may be done without violating the rule. It is, however, always highly proper to omit useless matter, and it may be said that the most accurate compliance with the rule is realized when there is carried into the brief only such averments and parts as will enable the judge, not having the record before him, fully to grasp and understand the controverted point.
The suit is based upon the following instrument:
“We, the undersigned, owners of property abutting upon Kentucky street, from Bernard to Morgan streets, in Kokomo, Indiana, severally promise and agree, in consideration of having the right, to pay in instalments our respective assessments for the improvement of said Kentucky street, as provided for in ordinance No. 785, that we will not make any objection to any illegality or irregularity as to our respective assessments, and will pay the same when due, with interest thereon at such rate, not exceeding six per cent, as shall by ordinance or resolution of the common council of the city of Kokomo be prescribed and required. Milton Shirk,
Executor for E. IT. Shirk.
408 ft., Lot 91, K. & S. Add. Amount $987.36.”
The real estate when assessed stood of record in the name of Milton Shirk, executor of E. H. Shirk. It so appeared upon the assessment roll. After the approval and confirmation of the assessments by the city council, within the time given by the statute, the above instrument was executed, not only by Mr. Shirk, but by divers other abutting lot owners.
“The rule must be regarded as well settled,” says Allen, J., in Austin v. Monro (1872), 47 N. Y. 360, “that the contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, * * * are the personal contracts of the executors, and do not bind the estate.” “An executor or administrator * "* * is bound individually, and not otherwise, by his promise to pay a debt of the decedent, though he promised to pay ‘as executor or administrator,’ because he has no power to bind the estate by contract.” 11 Am. and Eng. Ency. Law (2d ed.), 914. See, also, 18 Cyc. Law and Proc., 247, 249 ; Moody v. Shaw (1882), 85 Ind. 88; Holderbaugh v. Turpin (1881), 75 Ind. 84, 39 Am. Rep. 124.
Judgment reversed and cause remanded, with instructions to overrule the demurrer to the second and third paragraphs of complaint.
Concurrence Opinion
Concurring Opinion.
It is required by §4294 Burns 1901, Acts 1899, p. 63, as a condition precedent to the issuance of street improvement bonds and the right to pay the same in instalments,'that the owner of the lot or tract of ground subject to the lien shall promise and agree in writing not to make any objection on account of any illegality or irregularity in the assessment, and to pay the same personally. The issuance of bonds without this written waiver by the owner of the real estate affected would be unauthorized; and the extension of the time of payment of the assessment lien is secured, not by a mere agreement of parties, but by virtue of a right granted by statute. The execution of such waiver and personal obligation by any one other than the owner would not satisfy the requirements of the statute, or authorize the issuance of improvement bonds, or estop the holder of the lien from collecting the assessment at any time. If the holder of the lien cannot be bound by a waiver executed by a volunteer, then there could be no consideration for the personal agreement of such volunteer promisor. These facts take this case out of the class in which an administrator or executor may bind himself personally upon an independent contract. With this explanation, and upon the -understanding that the complaint proceeds upon the theory that Milton Shirk was the owner, or one of the owners, of the real estate assessed for the improvement, at the time he executed the instrument sued on, I concur in the-result reached in the opinion of my brother Hadley.