7 Ind. 529 | Ind. | 1856
Thomas Jones and Ann, his wife, brought then suit against Hugh and Samuel Murphy, averring that William Mwrphy, father of the said Ann, died seized in fee of a tract of land in Preble county, Ohio; that she was one of nine heirs of the said William, and took by inheritance one-ninth part of said land; that the said Thomas was entitled to a life estate therein; that the defendants purchased the interest of the plaintiffs in said land,^for which they agreed to pay 300 dollars; and that they have conveyed the same to them. This action is brought to recover the consideration of that conveyance.
The first paragraph of the answer admits that William Murphy died seized of land in Ohio, and that said Ann
It is not the practice in this Court to reverse a judgment otherwise correct, for an error in sustaining a demurrer to a plea, or paragraph in the answer, if, as in this case, there is another issue upon the record under which the same evidence would be admissible. The same question of law arose in a subsequent part of the case, and when we come to that, the correctness of the ruling upon this demurrer will be considered.
There was a trial by jury, verdict for 325 dollars, motion for a new trial overruled, and judgment.
On the trial, the defendants offered in evidence the will of William Mwrphy, which, on the plaintiff’s objection, was excluded. This, we think, was error. The complaint alleged that Mrs. Jones, on the death of her father, took one-ninth part of his land by inheritance, and that her husband took a life estate therein, in right of his wife. The will contains the following provisions: “I leave and bequeath to my daughter, Ann Jones, one dollar, she having received what I have allowed her before. It is further my will, that Thomas Jones receive no privileges on my farm, nor any portion of my estate of which I die possessed.” It disposes of all the residue of the testator’s estate, to his widow and other children. The evidence offered, tended to disprove the allegations of the complaint, and should therefore have been admitted.
It was also admissible to show that there was no eonsidlration to support the promise averred in the complaint; and this is the same question which arose upon the demurrer to the thud paragraph of the answer. It may be stated thus: Is the execution of a deed which conveys nothing, a sufficient consideration to support a promise
The judgment is reversed with costs. Cause remanded, with instructions to the Court of Common Pleas to overrule the demurrer to the third paragraph of the defendant’s answer, and for further proceedings, not inconsistent with this opinion.