18 Ind. 481 | Ind. | 1862
Suit by Hutson, the purchaser of real estate, to compel a specific perfoi’mance of the contract.
There was a demurrer overruled to the complaint. Upon this the first point arises.
The complaint avers that the plaintiff purchased of defendant certain described real estate for the sum of 5,600 dollars, on the 14th of February, 1860; that there was then paid of
The question here attempted to be raised has been already decided by this Court; Wingate v. Hamilton, 7 Ind. 73; although a doctrine somewhat different is mentioned in Story’s Eq. 2 vol. pp- 39, 40.
It is urged that the complaint does not aver that satisfaction had been entered on the judgment paid off by the plaintiff, nor an offer to enter such satisfaction. If the defendant had' complied with his contract, without doubt it would have operated as a satisfaction of said judgment. The amount paid upon it was really a payment of so much upon the contract evidenced by the note held by the defendant, and the surrender of that note is a satisfaction of the judgment.
There is, however, an error growing out of the tender averred. The amount withheld as an abatement, because of the failure of the wife to execute, is equal to the full sum to which she would then have been entitled if her husband' had been dead. As it was, then, some consideration should have been paid to the fact that he might possibly outlive her.
As the evidence is not in the record, nor any pleading by which we would be enabled to determine the correctness of the conclusion of the Court as to the sufficiency of the tender made and found, we would not disturb the judgment on that ground, if it was not for the fact that, as before said, the amount averred to have been so withheld is the full sum to which she would have been entitled if her husband had been then dead.
There should have been an inquiry as to the respective ages of the said husband and wife, &e., and the proper table re
The judgment is reversed, with costs. Cause remanded.