Johnson v. Redwine

Atkinson, Justice. 1. The proposition announced in the first head-note requires no elaboration; it is a restatement of elementary law.. See 1 Addison on Contracts, p. 29, §14. 2. The plea of the defendant was properly stricken on demurrer. It was a plea .that the promissory note sued on -was without consideration. It alleged that the payee, as an -heir at law of his deceased wife, who was a daughter of' the maker, claimed an interest in certain lands which he (the maker of the note) had caused to be set apart as a homestead which was sued out in right of Iris wife and children; that the land so set apart was bought with his-money, and that the note was given in settlement of the-supposed right of the payee and to jirevent the execution of a threat he had made to proceed for partition. There-was no allegation that the title was taken in his name, or-that the deceased daughter did not have a resulting interest. So that if the plea could be treated as alleging that the-contract was entered into by the maker under a mistake as to the rights of the payee, leaving no consideration, legal or-moral, to support the contract of compromise, it is wholly defective in the two respects above indicated. For if the-daughter really had a resulting interest, or the title was-taken originally in the name of the maker’s wife and children (and this we must presume in the absence of an allegation to the contrary), then there was ample consideration [115] to support the agreement to compromise, and as well the promissory note made in the further execution of .that contract. We conclude, therefore, that the plea interposed no legal obstacle to a recovery by the plaintiff, and the court did not err in striking it upon demurrer. Judgment affirmed.