Jones v. Dorr

19 Ind. 384 | Ind. | 1862

Davison, J.

The appellee, who was the plaintiff, brought an action against Balinda Jones, to foreclose a mortgage on the west half of the north-west quarter of section 16, in township 35, north, of range 6, east, in Porter county. The mortgage bears date April the 15th, 1856, and was executed by the defendant to one1 Thomas Englin, to secure the payment of a note for two hundred dollars. It is averred, in the complaint, that Englin, by indorsement, assigned the note and mortgage to one Absalom Leonard, who indorsed them to the plaintiff. The defendant answered: 1. By a denial. 2. That the note, the payment of which is secured by the mortgage, was given for a part of the purchase money of the above-described real estate, which, at the time it was given, was sold, and, by deed in fee, conveyed by Fnglin to the defendant; and that -Fnglin, the grantor, in and by said deed, covenanted that he was lawfully seized of the premises; that he had good right to convey; that they were unincumbered; and that he would warrant and defend the title to the same against all claims, etc. Of these covenants six breaches were alleged. The third and fourth were withdrawn before the cause was submitted for trial. The first, second, fifth, and sixth are as follows: 1. That the grantor was not lawfully seized, etc., and had not good right to sell and convey, etc. 2. That he had no title to the land. 5. That the same, at the time of the conveyance, was owned by the Fort Wayne and Chicago Railroad Company, and that company still owns it. 6. That when the conveyance was made, the land was incumbered by a deed, for the right of way over and across the same, executed to the Fort Wayne and Chicago Railroad Company, for the use of said company, and that after the defendant received said conveyance, the company entered upon and took possession of a part of the land, to-wit: four acres, worth one hundred and fifty dollars, and constructed thereon her railroad, and, in the construction thereof, has made large embankments and excavations of earth, to the damage of the land and of the defendant, two hundred dollars, etc.

The plaintiff’s reply to the answer consists of a general denial, and four special paragraphs. The defendant demurred to the second, third, fourth, and fifth paragraphs. To the second the demurrer was overruled, but sustained as to the others. The issues were .submitted to the Court, who found for the plaintiff, and having refused a new trial, rendered judgment, etc.

Bradley and Woodward, for the appellants. M. K. Farrand, for the appellee.

The second reply, to which the demurrer was overruled, is as follows: “ And the plaintiff says that, before he purchased the note from Absalom Leonard, as stated in the complaint, the defendant represented to Leonard that said note was all right, and just, and that she would pay it as soon as she could, and claimed no set-off or other defense to the same; that Leonard, when he sold the note to the plaintiff, informed him of the representations of the defendant respecting the note, and the plaintiff’, believing said representations to be true, and relying upon them, purchased it of Leonard; wherefore, etc.-

"Was this reply sufficient to avoid the answer? If the representations and promises, set up in the reply, had been made to Leonard, when he was negotiating for the purchase of the note, and he had acted upon them, the defendant would have been estopped from setting up any defense to its validity, because, in that case, her admissions and representations would have constituted a valid estoppel. And the same would be true had they been made by her to the plaintiff, at the time he purchased. But these representations were made after Leonard had bought the note. He was not, in respect to his purchase, in any degree influenced by them, and the result is, they constituted no estoppel in his favor. If, then, the declarations were not an estoppel in Leonard’s favor, no statement of his could make them an estoppel when pleaded by his assignee. The reason for this conclusion is obvious. The statements of Leonard are his own statements, not the statements of the defendant, and the plaintiff was not, therefore, authorized to rely upon them. The demurrer should have been sustained.

Per Curiam.

The judgment is reversed, with costs. Cause remanded.