Mix v. Ellsworth

5 Ind. 517

• Court: Indiana Supreme Court
• Decided: December 9, 1854
• Status: Published

Opinion

Stuart, J.

Debt by Ellsworth against Mix, on a promissory note under seal, for 100 dollars, due November 24, 1839.

Plea, that the writing obligatory sued upon, with three others for like amount, was given for the purchase-money of lot No. 22 in JSnsminger’s first addition to Lafayette, and for no other consideration; that at the time of executing the said writing, Ellsworth agreed to convey said lot to Mix, on the payment of said writings obligatory;, that before the commencement of the suit, Mix had paid all said notes except the one in suit, and that Ellsivorth had not, before the commencement of the suit, conveyed or offered to convey, on payment, &c., or otherwise. Demurrer to the plea sustained, and judgment for the note and interest.

The sufficiency of .this plea in bar of the action is the only question presented.

On this point the ruling of this Court has not been uniform. The decisions are numerous; and a review of them would occupy more space than the importance of the question involved would seem to warrant. But for facility of future reference, some of the principal cases touching the correlative rights and obligations of vendor and vendee, are briefly noted.

Leonard v. Bates, 1 Blackf. 172.—Muchmore v. Bates, id. 248.—Huntington v. Colman, id. 348.—Clark v. Redman, id. 379.—Meriwether v. Carr, id. 413.—Funkhouser v. Purdy, id. 294.—Davis v. Clements, 2 Blackf. 3.—Galletly v. The Board of Justices, &c., id. 221.—Sheets v. Andrews, id. 274.—Pence v. Smock, id. 315.—Patterson v. Salmon, 3 Blackf. 131.—Bryan v. Blythe, 4 Blackf. 249.—Cunningham v. Gwin, id. 341.—Warner v. Hatfield, id. 392.—Barbee v. Inman, id. 420.—Blann v. Smith, id. 517.—Bowers v. Trevor, 5 Blackf. 24.—Hunt v. Reeves, id. 177.—Loudon v. Robertson, id. 276.—Post v. Shirley, id. 430.—Owen v. Norris, id. 479.—Taylor v. Perry, id. 599.—Barickman v. Kuykendall, 6 Blackf. 21.—Martin v. Pace, id. 99.—Reynolds v. Smith, id. 200.—Holeman v. Lamme, id. 222.—Daniels v. Stone, id. 450.—Burrows v. Yount, id. 458.—James v. The Lawrenceburgh Insurance Company, id. 525.—Allen v. Smith, id. 527.—Smith v. Addleman, 7 Blackf. 119.—Henton v. Beeler, id. 150.—Hedges v. Bird, id. 215.—Brumfield v. Palmer, id. 227.—Davis v. Heady, id. 261.—Cox v. Hazard, id. 408.—Cox v. Wells, id. 410.—Brown v. Hart, id. 429.—Shirley v. Shirley, id. 452.—Hart v. Woods, id. 568.—Hays v. Muir, 1 Ind. 174.—Hook v. Nebeker, id. 257.—Clark v. Snelling, id. 382.—McCulloch v. Dawson, id. 413.—Gorham v. Reeves, id. 421.—Cheek v. Morton, 2 Ind. 321.—Burton v. Johnson, id. 339.—Gorham v. Reeves, 3 Ind. 83.—Wright v. Blachley, id. 101.—West v. Chase, id. 301.—Ireland v. Chauncey, 4 Ind. 224.—Ellis v. Hubbard, id. 206.—Best v. Ellsworth, id. 261.

The case at bar is not distinguishable from the two latter cases in 4 Ind., supra. The plea was, therefore, a good bar to the action, and the demurrer to it should have been overruled.

R. C. Gregory and R. Jones, for the plaintiff, J. A. Wilstach, for the defendant.

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