Mix v. Smith

4 Ind. 499, 1853 Ind. LEXIS 169

• Court: Indiana Supreme Court
• Decided: December 12, 1853
• Status: Published

Opinion

Roache, J.

Debt by the plaintiff below on a writing obligatory.

R. Jones, for the plaintiff. J. A. Wilstach, for the defendant.

The defendant below filed a plea alleging that the writing obligatory sued on, with three others of like amount, were made by him as the consideration-money of a lot in Lafayette, and for no other consideration. That at the time of the purchase and of the execution of the writing obligatory, the plaintiff below agreed to convey the lotto him upon the payment of the purchase-money, as specified in the said several writings obligatory. That all said notes had been paid, except the one now sued on, before the commencement of this suit. Averment, that before the commencement of the suit the plaintiff did not convey, nor did he execute a conveyance and tender it upon the full payment of the purchase-money, or on any other condition.

To this plea, the Court sustained a demurrer, and rendered final judgment for the plaintiff for the amount due on the writing obligatory.

This plea is precisely similar to that in the case of Ellis v. Hubbard, decided by this Court at the May term, 1853,

(1) and no new or different question arises upon it. The plea was a good bar, and the demurrer should have been overruled.

Per Curiam.

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

Ante, p. 206.