Ellis v. Diddy

1 Smith & H. 354

• Court: Indiana Supreme Court
• Decided: November 15, 1849
• Status: Published

Opinion

Perkins, J.

— “ The defendant had a right to plead to the petition, any matter which would defeat or diminish the petitioner’s claim to dower. R. S. p. 804, §76-77. The plea, therefore, was well pleaded. The objection set down in the special demurrer to the plea, is, that it is double, in this, that it sets up matter of record, and matter not of record; but we think it contains but a series of facts all going to constitute but one bar to the petition; and, in this view, it is justified by the rules of pleading.

“ Upon the merits, we think if the matters alleged in the plea are true, the petitioner is estopped from asserting a right of dower. They show that she stood by and saw the lands sold, under circumstances that make it fraudulent in her now to claim such a right. 1 Story’s Eq. §385-6-7. Douglas v. Tapping, 4 Paige, 94; Smiley v. Wright, 2 Hamm. 507; Jones v. Powell, 6 Johns. Ch. R. 194; The State v. Holloway, 8 Blackf. 45; McCormick v. Digby, id. 99. ”

Decree reversed, &c.