49 Ind. 175 | Ind. | 1874
This was a complaint for the partition of certain real estate* of which it is alleged the plaintiff and the defendants are “joint tenants in common.” The plaintiff claimed one-third of the land as the widow of Michael McGinty, deceased. Since the death of Michael McGinty, it may be inferred that she has again been married, and thus the change in her name may be explained.
The defendants pleaded, for a second paragraph of answer, as follows: That the plaintiff is estopped from claiming any title to or interest in the real estate described in the complaint, or any part thereof, because, they say, that heretofore, to wit, •on the 13th day of December, 1858, one Michael McGinty was the owner of said land described in the complaint, and of which ■the plaintiff claims partition; that he had an estate in fee simple therein; that on the same day he and one John McGinty, who owned thirty acres of land adjoining said real estate, executed and delivered to one James Gavin a mortgage upon thes.
A demurrer by the plaintiff to this paragraph of the answer, on the ground that it did not state facts sufficient to constitute a bar to her action, was overruled by the court.
The plaintiff then replied to the second paragraph of the answer as follows: That the mortgage mentioned in the second paragraph of the answer as given by John and Michael McGinty to James Gavin, was not given for the purchase-money of all of the land mentioned in the said mortgage, but, on the contrary, was only given for the thirty acres owned and mortgaged by John McGinty, which thirty acres said James Gavin sold to said John McGinty at the time and date of said mortgage, which was all the land said James Gavin •ever owned of the land described in said mortgage; that the recital in said mortgage that it was given for the purchase-
A demurrer was filed by the defendants to this paragraph of the reply, on the ground that the same did not state facts sufficient to avoid their answer. The demurrer was sustained by the court. Thereupon there was final judgment for the defendants.
The errors assigned are:
1. Overruling the demurrer to the second paragraph of the ■¿answer.
2. Sustaining the demurrer to the first paragraph of the reply.
As to the first alleged error, counsel for appellant says, that to create an estoppel by record, there must have been some act of the party sought to be estopped upon which to base the record. 'The answer, it is urged, does not contain a complete record of the foreclosure suit referred to therein, and' no copy of the mortgage is set out; but the defendants proceed upon the theory that the plaintiff signed the mortgage, or that the mortgage was given for the purchase-money of the land; and it is insisted that the paragraph of the answer is bad, because it does not set out a full and complete record of the foreclosure suit on. which the defendants rely. In our opinion, it was unnecessary to file a copy of the record in the foreclosure suit with.
With reference to the position assumed by counsel, that, to create an estoppel by record, there must have been some act of the party sought to be estopped upon which to base the record, we think it may be said, that it is enough if a fact be alleged in a complaint or other pleading, and found to be true upon a trial, or be admitted by the default of the party to the action, who should controvert it if not true, in order to estop the party seeking afterward to deny such fact.
It was recited in the mortgage, that the debt was for the purchase-money of the land, both the thirty acres and the fifty acres; that fact was alleged in the complaint to foreclose the mortgage, to which the plaintiff in this action was a party. She had legal notice of the pendency of that action and failed to appear and controvert the allegation.
The judgment of the court, so far as it concerns her, was predicated upon the fact thus alleged by the plaintiff in that action, and admitted, or not denied, by her. Upon this admission by her default, the judgment of the court as to her interest in the land was predicated, and upon the faith of the judgment the purchase was made at the sheriff’s sale, and the land is now held.
The question is not now whether, in fact, the mortgage was for the purchase-money of the land, of which the plaintiff is now claiming the one-third. That question was settled by the judgment of the court in the foreclosure case, to which the plaintiff was a party. She might then have controverted that fact, had she been inclined to do so, and had the fact been otherwise than as alleged. But we think she cannot now, in this way, controvert that fact. Comparet v. Hanna, 34 Ind. 74; Gavin v. Graydon, 41 Ind. 559; May v. Fletcher, 40 Ind. 575 ; Fischli v. Fischli, 1 Blackf. 360. Many other cases in this court might be cited.
The first paragraph of the reply is in contradiction of the record in the foreclosure suit. It alleges that the mortgage
Counsel for appellee says the reply admits the existence of the record on which the estoppel is based, but asserts, in substance, that the record does not speak the truth, and for this reason is bad.
Counsel for the appellant insists, that there should have been an issue of fact formed, whether or not Michael McGinty, the husband of the plaintiff, was or was not a purchaser of the land in question from Gavin, and whether or not he executed the mortgage fcr purchase-money.
We think the demurrer was properly sustained to the reply, for the reason stated by counsel for the appellee. To allow the reply to stand, would be to allow the plaintiff to aver the feet to be directly the opposite of what was alleged, and found to be true, in the foreclosure suit. This she cannot do.
There was no error in sustaining the demurrer to the first paragraph of the reply.
The judgment is affirmed, with costs.