Bevins v. Prather

13 Ind. 392

• Court: Indiana Supreme Court
• Decided: November 15, 1859
• Status: Published

Opinion

Per Curiam.

Suit upon a promissory note, of which a copy follows:

“ $800. On the 25th day of December, 1855, we promise to pay Eliza J. Cline 800 dollars, waiving relief laws of Indiana, for value received. C. Bevins,

“ Jume 29, 1854. L. U. Shumway.”

The defendants answered, setting up a failure of consideration, in this, that John Cline, and said Eliza J. Cline, his wife, were the equal owners, as joint [tenants], of a tract of land; that they united in the sale of it to Charles Bevins, one of the makers of the note sued on (Shumway being his surety), and made a joint deed for the same; that, for the consideration, Bevins gave 800 dollars cash in hand, and the note above sued on, which, for certain personal reasons, the answer alleges, was made payable to Eliza J., the wife of John, though it avers the same to be the joint property of the two; that, at the same time, and as a part of the contract, said John and Eliza J. Cline executed to him, said Bevins, their joint bond of indemnity against the failure of the title to any of the land deeded; that subsequently John Cline's interest in the land was sold on execution against him, and the defendant’s, Bevins', title thereby divested.

M. M. Ray and T. J. McFarland, for the appellants. W. Herod and S. Stansifer, for the appellee.

A demurrer to the answer was sustained.

Final judgment for the plaintiff for the amount of the note.

We think the answer showed a failure of consideration, at least, to a part, if not all of the note.

If the facts- should turn out differently on the trial; if they were not joint tenants, but tenants in common, and the consideration was, at the sale, divided between the grantors with the knowledge of all parties, then the decision upon this answer might not be decisive of the case. See Williams on Real Prop., side p. 109, et seq.; 4 Kent, 359.

The judgment is reversed with costs. Cause remanded, &c.