Crowfoot v. Zink

Ray, J.

The appellant brought suit upon a note executed to him by the appellee. The second paragraph of the answer alleged that the consideration of the note was the last payment to be made upon certain real estate, conveyed with full covenants by the appellant to the appellee; that said real estate had been purchased by the appellant from one Allen, and that certain notes had been executed to Allen in part payment for said property, which notes were not yet due, and the existence of Vhich was concealed by the appellant from the appellee; that Allen had notified the appellee that he claimed a vendor’s lien upon the property; that said appellant had removed from the county, and the appellee did not know of any property belonging to the appellant from which the amount of the debt due to Allen could he made, and he therefore asked an injunction restraining the collection of said notes until he was indemnified against the vendor’s lien claimed by Allen. A demurrer to this answer was overruled. This was error. There was no cause shown requiring the interposition of the court to restrain the collection of the claim. It was not averred that the appellant had removed out of the State; nor was it alleged that he was insolvent, or that he had not left sufficient property, within the jurisdiction of the court, to satisfy any judgment that might be obtained against him upon the notes held by Allen, when they became due. There is no averment that the appellant was not fully able to respond in damages to the appellee for any breach of the covenants contained in his deed. The- ignorance of the appellee upon these matters would not sustain an action by Alien to enforce a vendor’s lien upon the land, nor would *189 such want of knowledge authorize the court to remit the appellee from his action upon the covenants of the appellee, when damage actually accrued to him from their breach.

J. Collins, T. L. Collins, A. M. Black and F. Wilson, for appellant. H. Heffren, for appellee.

A reply was filed and a trial had, resulting in a judgment for the appellee. The evidence does not supply .the defects in the answer, but shows that the appellant had in fact property to meet the indebtedness alleged.

The judgment is reversed, with costs, and the cause remanded, with directions to the court below to sustain the demurrer to the second paragraph of the answer.