94 Ind. 308 | Ind. | 1884
Appellee, Kepler, as assignee of one Ryan, administrator of the estate of Joseph Williams, deceased, brought this suit against appellants on two promissory notes for $100 each, bearing date July 19th, 1879, executed by appellant Martha C. Riley and one W. J. Lukins.
The notes were executed to the administrator for the purchase of real estate sold by him as such to pay the. debts of said estate, the widow of Williams uniting in the sale, and were payable in twelve and eighteen months after date. The purchase was for $300 — $100 of which was paid at time of purchase, and $75 more had been paid upon the first note due.
Issues were made, a trial had before the court, which resulted in a finding and judgment for the appellee for the balance on the notes, interest and attorney fees.
Various errors have been assigned in this court. Appellants, in their brief, have presented and discussed but one of the specifications of errors; the others are considered as waived.
The specification of error insisted upon is the sustaining of appellee’s demurrer to the second paragraph of appellant Martha’s answer.
Appellants’ counsel, in their argument, treat this paragraph of answer as one of fraud instead of failure of consideration. It is doubtful whether sufficient fácts are' alleged to constitute fraud.
There is no allegation that any delinquent taxes were actually due on the land. The mere allegation that the land was sold for taxes is not sufficient; the facts showing a valid lien upon the land for taxes should be averred. And the averment that the mortgage was duly recorded and remained of record unpaid, uncancelled and unsatisfied, does not necessarily imply that there was anything remaining yet due upon •the mortgage. It may have been fully paid without the record showing the- payment; and in that case would be no lien upon the land. There is no averment of any damage on account of the alleged fraud; she does not show that she has been disturbed in the possession of her premises, has paid anything on account of encumbrances, or that any attempt has been made to enforce any encumbrance; without showing an injury there can be no available fraud. But if the paragraph was properly constructed as a plea of fraud, it could not be a good defence in this action.
The notes sued on were executed to the administrator in his fiduciary capacity for property belonging to the estate. The administrator, as such, could not commit a tort in the sale of the property. If he made false representations in the sale, that was his individual tort, for which he alone could be held individually liable. Rodman v. Rodman, 54 Ind. 444; Hankins v. Kimball, 57 Ind. 42; Rose v. Cash, 58 Ind. 278. The administrator's individual tort could no more be pleaded as a defence to the notes than could an individual claim against the administrator be pleaded as an offset to the notes; and not being-admissible against the administrator, it could not be against the assignee.
There is no error in sustaining the demurrer to this paragraph of the answer. The judgment ought to be affirmed.
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is in all things affirmed, with costs.