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Coy and Others v. Stucker and Others.

fendants Kennedy, Neville and Pruitt, from all further liability on said agreement; and that said three hundred dollars was paid by said Kennedy, and said parties did become said replevin bail.

Demurrers were overruled, not only to the answers of Kennedy, Neville, and Pruitt, but also to the answers of the other defendants, who claimed that the alleged release of Kennedy, Neville, and Pruitt released them also.

The fourth paragraphs of answer of Kennedy, Neville, and Pruitt are substantially the same as the third paragraphs.

Demurrers were overruled to these second, third, and fourth paragraphs of answer.

The contract, so far as it agrees to indemnify, is a joint contract, and the parties are bound by its terms to make good any loss sustained by the plaintiffs by reason of the insolvency of any one of said parties.

The second paragraph of the answer is in direct contradiction to the written contract, which asserts that the undersigned and others are defendants in the action pending in the Bartholomew Common Pleas Court. In the face of this express declaration in the contract, it will not be permitted that a parol agreement shall be set up, that the“ others,” were to sign the agreement before it should be binding upon the “undersigned.”

It will not avail to cite decisions where parol evidence has been allowed to control the effect of an instrument in form a deed. The peculiar advantages possessed by the lender over the borrower and the legal forms under which the equitable rights of the mortgagor were sought to be smothered, compelled the court of equity either to yield her jurisdiction or break through legal forms and disregarding technical scruples and difficulties, determine from proof whether a loan was the origin of the instrument, and if that were once established, to recognize and declare the equitable rights of the parties. But this “splendid instance,” as Chancellor Kent styles it, “of the triumph of equitable prin

Coy and Others v. Stucker and Others.

ciples over technical rules and the homage which these principles have received by their adoption in the courts of law," must not be relied upon to authorize parol evidence to be employed to contradict the express terms of contracts where no such relation of lender and borrower exists.

The demurrer should have been sustained to this paragraph.

The third paragraph of the answer was also bad. The liability as to each person was also several, the agreement being to pay in proportion to the share of each; and a discharge of John H. Kennedy, Neville, and Pruit, therefore, could not work a discharge of the other defendants from their several liabilities. The answer was only good as to those who became replevin bail under the agreement. The third paragraph of the answer of John H. Kennedy, Neville, and Pruitt, to the same effect, was good.

The plaintiffs could make a valid contract to pay a consideration for replevin bail on the judgment, and the agreement therefore to release John H. Kennedy, Neville, and Pruitt, on their securing the postponement of the collection of the judgment and John H. Kennedy paying on the same the sum of three hundred dollars, was a good defense to the action in favor of the said Kennedy, Neville, and Pruitt, though not available as to the other defendants.

The fourth paragraph of the answer of said John H. Kennedy, Neville, and Pruitt, is also good, for the same reason.

The appellees also assign cross errors upon the sustaining of demurrers to the several pleas in abatement; but what we have already said as to the joint and several liability of the defendants under the contract sustains the action of the court below.

Demurrers were sustained to the fifth paragraphs of the answers of John Long, James A. Kennedy, William Long, Gailey, Lee, Wells, Becker, Betz, Jones, Reaves, Barnhill, and Cobb. That paragraph alleges, that the indebtedness, to compromise which the contract in suit was executed,

Coy and Others v. Stucker and Others.

was one in which the plaintiff's were equally involved with the defendants, and pleads certain payments made and asks that they may be considered in fixing the final liability. We think the paragraphs good to the extent and purpose for which they are pleaded. The demurrer should have been overruled.

A demurrer was also sustained to the sixth paragraph of Benjamin F. Neville's answer. This ruling was correct. The plea was, that the payment of one hundred dollars discharged the liability. The contract was to pay the plaintiffs or Kennedy, upon the amount being fixed, and the breach of the contract therefore occurred then, and the payment of a less sum did not discharge the liability.

There is also a seventh paragraph of the answer of John Long which alleges, that there was a doubtful question of law as to the liability of the defendant under the contract; that a compromise was thereupon made and a less sum given in discharge of a greater liability. This paragraph was bad, as the construction of the written instrument in suit does not present a question of doubt authorizing a compromise of a given sum for a less. The eighth paragraph of Pruitt and John H. Kennedy's answer is bad, for the same

reason.

There are other errors assigned in rulings upon demurrers, but we have already exhausted the abstract, as effectually as the appellees have exhausted language, which fortunately has limits, in the construction of the answers filed. We have been bewildered by the multitude of words, and, in doubt to which paragraphed mass the remark should apply, we make it to the answers in general, that the release by the plaintiffs of any one originally liable in the action pending when this contract was made, but not a party to the written contract, does not discharge the person so released from his liability to contribute his full share of such original liability upon the demand of the defendants in this action; and therefore such release cannot avail the defendants here.

Hanlon v. Waterbury.

The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

S. Stansifer and F. Winter, for appellants.
F. T. Hord, for appellees.

HANLON V. WATERDURY.

31 168 150 111

31 168 156 619

WIDOW.— Partition.— Statute Construed.—Where in an action for partition

there are several tracts of land in which a widow is entitled to an estate for life or in fee simple, and there are tenants in common with her in all or any part of such lands, the act of March 5th, 1859 (2 G. & H. 361), does not give her the absolute right to have her interest in several tracts located in a body, selected by her, on one of them, but confers on the commissioners acting under the direction of the court the power, where she has made such selection, to set over to her the tract so selected, if they deem it just and proper to do so. The tenants in common in the several tracts, in licu of her interest in which she makes such selection, must be the same, and each one's interest must bear the same relative proportion in each tract to thc in

terests of the other tenants. SAME.Estoppel.- Vendor and Purchaser.-An administrator, under an order

of court granted upon a proper petition in which it was stated that the decedent left a widow surviving him, sold a certain lot, being one of two tracts of land of which the decedent was seized in fee simple at his death, for the payment of the debts of the decedent. After the payment of the debts, the widow, with knowledge of all the facts, received the residue of the proceeds of the sale, as a part of the three hundred dollars to which she was

entitled, under the statute, as against heirs and creditors. lleld, that the widow was not estopped from claiming her share, as against

creditors, of the real estate so sold. Held, also, that the purchaser at such sale or his vendee could not claim to be

a purchaser in good faith believing that he was acquiring an unincumbered

title to the entire lot.
Held, also, that the widow's entire interest, as against creditors, in all her

husband's real estate could not be assigned to her in one body, upon her
selection, from the other unsold tract in which she as widow was tenant in
common with the children and heirs at law of her husband.
APPEAL from the Tippecanoe Circuit Court.
ELLIOTT, C. J.-This was a petition for partition filed by

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Hanlon v. Waterbury.

Margaret Waterbury, the appellee, against Hanlon, who is the appellant here. The petition alleged, that said Margaret was seized in fee, by descent from her husband, William Waterbury, of one undivided third part of a lot in the city of Lafayette; and that Hanlon was the owner in fee of the residue, under a sale thereof made by the administrator of her deceased husband, by order of the Tippecanoe Common Pleas Court; and prayed partition. Hanlon filed an answer, to which a demurrer was sustained; he then filed an amended answer and cross complaint, to which a demurrer was also sustained. Hanlon refusing to answer further, the court awarded partition in accordance with the prayer of the petition, which was subsequently made by commissioners appointed by the court, whose report thereof the court confirmed.

The only question in the case arises upon the action of the court in sustaining the demurrer to the answer and cross complaint. The facts alleged in that pleading are, in substance, these:

That William Waterbury, the husband of said Margaret, in 1863, died, intestate, seized in fee simple of lots 17 and 21, in the addition of Lafayette laid off by the board of commissioners of Tippecanoe county, of the value of nine hundred dollars, and also of another lot or tract of land adjoining said city, of the value of twenty-five hundred dollars; that his personal estate, which came to the hands of his administrator, only amounted to $109.50, of which said Margaret, as his widow, received $68.20; that there were debts and liabilities against his estate amounting to nearly four hundred dollars; that, upon a proper petition filed by Hine, the administrator, the court of common pleas of said county ordered the administrator to sell said lots 17 and 21, at public sale, to make assets for the payment of the debts of the decedent. The lots were subsequently sold under said order, and one David Waterbury became the purchaser of lot 17; and lot 21 was bid off by Christian B. Keifer at the sum of $366. The sales were subsequently

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