Post v. Shirley

5 Blackf. 430, 1840 Ind. LEXIS 105

• Court: Indiana Supreme Court
• Decided: November 27, 1840
• Status: Published

Opinion

Blackford, J.

This was an action of debt against Post on two sealed notes for the payment of money. Pleas, 1. That the notes were obtained by fraud, &c., (not setting out the facts;) 2. That the notes were obtained by fraud, &c., (setting out the facts.) Issue was joined upon the first plea; general demurrer to the second, and the demurrer sustained. The parties went to trial on the first plea. Verdict and judgment for the plaintiff .

The only error assigned is, that the demurrer should have been overruled. The plea demurred to states, that the notes were given in consideration of the sale by the plaintiff to the defendant of certain town lots, (describing them,) and to secure the purchase-money for the same; and for no other or different consideration whatever. It further sets forth several representations made by the plaintiff respecting the lots, which representations are alleged to be false and fraudulent. This plea may be fairly understood to mean, that the .lots had been . conveyed by the plaintiff to the defendant. Considering that to be the case, the plea must be bad at all events, for not averring a reconveyance of the lots, or that which is equivalent. The defendant cannot expect to keep the lots, and also avoid the payment.

H. Cooper, for the plaintiff. T. Johnson, for the defendant.

Per Curiam.

The judgment is affirmed, with 6 per cent. damages and costs.