McDowell v. Hendrix

Howk, J. In this action the appellee sued the appellants on a mining lease, which was fully considered and construed by this court, in the recent case, betweeu the same parties, of McDowell v. Hendrix, 67 Ind. 513. The appellee’s complaint, the appellants’ answers and the rulings of the court thereon respectively, were substantially the same in this case, as in the case cited; and precisely the same errors have been assigned in this case, as were assigned in the former case. The only material difference between the two cases, that we have been able to find, is this: That, in the case cited, the appellee sued to recover an instalment of rent, which had become due in the lifetime of his testator; while, in the case now before us, he has sued to recover rent which became due after the testator’s death. Upon this point, the allegation in appellee’s complaint, which must be taken as true as the case is presented here, was, that, by the terms of his testator’s will, he, as executor, was charged with the duty of collecting all rents that might accrue from the testator’s real estate, and of applying the same to the payment of his debts and legacies, and that the rent sued for, in this case, was needed for such payment. Under this allegation, it seems to us that the appellee’s right to maintain this action can not well be doubted. Upon the authority of the case cited, this cause must be decided as that was decided. The judgment is affirmed, at the appellants’ costs.