Brewer v. Parker

Pettit, C. J. Suit by the appellant against the appellees on a promissory note (not payable in bank) payable to one Cord, and by him assigned to William Brewer, and by him to Henry Brewer, the plaintiff below and appellant here. The defendants by answer admitted that they executed the [173] note sued on, but alleged that Parker executed the note as principal, and that the other defendant, John Brown, executed, it as surety of Parker; that the note was given in consideration of the sale and conveyance by warranty deed, covenanting against all incumbrances, by said Cord to said Parker, of a certain piece of real estate (the deed being made a párt of the answer); that at the time of making said deed there was an incumbrance upon the real estate, unknown to the defendant Parker, of a judgment against Cord, in the circuit court of the county in which the real estate was situate, for a greater sum than the note; that to prevent the sale on execution of said real estate, the said Parker was compelled, to and did pay off and satisfy said judgment; that Cord was not a resident of the State, and was wholly insolvent. The plaintiff'replied, that at and before the date of the note, and before the sale of the land, there was an outstanding mortgage given by said Cord to William Brewer, to secure the payment of four hundred dollars for purchase-money for said real estate; that the mortgage was, before the date of the note sued on, for a valuable consideration, assigned by said William Brewer to the plaintiff; that the plaintiff was, before the sale of the land by Cord to defendant Parker, the owner of said mortgage, which was a lien on the land prior to the judgment lien mentioned in the answer; that before the sale of said land by Cord to Parker, it was agreed by and between Parker, Cord, and plaintiff, and the defendant Brown, that in consideration of the plaintiff’s releasing his said mortgage lien upon the land, the said Cord might and would transfer the note sued on to the plaintiff; that pursuant to said agreement, and with the knowledge, procurement, consent, and direction of Parker, the plaintiff released his mortgage lien, and the said Cord transferred the note sued on to the plaintiff) in consideration of the plaintiff’s having released his mortgage lien; and that Parker refused to purchase the land unless the plaintiff would release his [174] mortgage in consideration of the assignment to him by Cord of the note sued on. S. Claypool and F. P, A. Phelps, for appellant. A. Ennis, for appellees. The defendants demurred to the reply, because it did not contain sufficient facts, &c., and the court sustained the demurrer, which ruling was excepted to. The only question before us 'in this case is the correctness of this ruling on the demurrer. We think that this was so clearly a good reply that we must reverse the judgment. We cannot conceive how a reply ¡could more thoroughly or perfectly estop the defendants from setting up the defense stated in their answer. Williams v. Rank, 1 Ind. 230; Morrison v. Weaver, 16 Ind. 344. The judgment is reversed, at the costs of the appellee; cause remanded, &c.