69 Ind. 88 | Ind. | 1879
Wooden was the plaintiff in the circuit court. In his complaint he alleged, substantially, the following
Appellees demurred separately to the complaint for the want, of facts sufficient to constitute a cause of action. The demurrers were sustained and exception entered.
The appellant claims that the circuit court erred in sustaining the demurrers to the complaint.
Much learning and research have been displayed in the argument of this case, and the briefs of counsel have exhausted every possible phase of the question raised by the demurrer to the complaint, and, but for the fear of loading the reports with too much argument, we would be tempted to copy the briefs in this opinion as a fair expose of the doctrine of equitable set-off. Butthe correctness or incorrectness of the ruling of the circuit court on the demurrer to the complaint, it seems to us, must be determined by the question whether the notej given by Mary A. Wampler to the appellant could be enforced against her, she being a married woman at the time of its execution. If the note could be. enforced against Mary A. Wampler, then the other facts averred in the complaint made a case for the relief prayed. If, however, the note could not be enforced, then the relief could not be granted.
It was the settled law of this State* until the passage of the act of March 25th, 1879, that the contract of a married woman was void. Thomas v. Passage, 54 Ind. 106 ; Williams v. Wilbur, 67 Ind. 42.
Wooden, having been appointed-executor, could have no rights, by virtue of such appointment, under the facts stated, that he would not have had, if some other person had
We are of opinion that the demurrer was properly sustained to the complaint.
The judgment is affirmed, at the costs of the appellant.