Long v. Dixon

55 Ind. 352 | Ind. | 1876

Biddle, J.

Complaint by appellees against appellants, in four paragraphs. The first is a special paragraph to recover the purchase-money for one-fifteenth, undivided part of certain lands, sold and conveyed. The second is similar to the first. The third is in the form of a common count for five hundred walnut trees. The fourth' is a common count for the sale and conveyance of the same lands described in the first count. Demurrers were sustained to the second and third paragraphs, but no question arising upon either of these is brought here. Demurrers, for a defect of parties defendants, and for want of sufficient facts alleged, were overruled to the first paragraph, and exceptions reserved. And, by a general denial to the first and fourth paragraphs, the issues were joined. Trial by the court. Binding for appellee, and, over a motion for a new trial and exceptions, judgment on the finding.

The case was tried at the March term of the Greene circuit court, 1874, and causes for a new trial filed, motion made and overruled at the same time. No time was given, as far as the record shows, to prepare and file a bill of exceptions. On the 12th day of May, 1874, a bill of exceptions was filed. This date must have been at the next term of the court, and, therefore, too late. The bill of exceptions is no part of the record. Bor the times of holding the Greene circuit court, see section 54, 1 R. S. 1876, p. 385. Krutz v. Craig, 53 Ind. 561.

The appellants insist, that the demurrer to the first paragraph of complaint, by Delia Long, should have been sustained because it shows upon its face that she was a married woman at the time the land was sold, and therefore not liable on the implied contract for the purchase-money. We do not think there is any such a direct traversable averment in the complaint. It alleges a sale of the land to Ichabod T. Williams and Edward M. Long, and “that by request of said defendants, the deed was made to said defendant, Delia Long, wife of said Edward.” There is no averment that Delia was the wife of Edward at the time the sale was made. Besides, the land being liable for the purchase-money, Delia was properly made a party defendant to protect her rights in the land; and being properly made a party, the demurrer was correctly overruled. If she did not wish to suffer a personal judgment, she should have set up her coverture by way of answer; and, not having done so, the judgment against her is valid. We have frequently decided, that where a married woman—the complaint not showing the coverture at the time the contract is made—does not set up her coverture against the action, she can not avail herself of it against the judgment. Landers v. Douglas, 46 Ind. 522; McDaniel v. Carver, 40 Ind. 250; Elson v. O’Dowd, 40 Ind. 300.

This record shows two paragraphs of complaint, upon which .the trial was had, either of which will support the finding and judgment of the court; and as the evidence is not before us, the judgment is affirmed, with costs.