Crowfoot v. Zink

Gregory, J.

This case is here for the second time. See Crowfoot v. Zink, 26 Ind. 187 .

The defendaut, after the reversal, amended his answer. A demurrer was overruled to the second paragraph of the amended answer, and this presents the only question properly before this court.

The overruling the motion for a new trial is not assigned for error. It has been repeatedly held by this court, that the assignment of the cause for a new trial in the court below as error here, is not the proper mode to raise any question embraced in the motion. The statute provides that a motion for a new trial may be based upon certain specified causes. If the court trying the cause overrules the *448 motion, and the moving party excepts, the questions arising on those causes are saved for the consideration of this court; and the assignment for error here, that the court below improperly overruled the motion, presents all that is embraced in it.

The second paragraph of the answer alleged, that the note sued on was executed in part payment of a certain tract of land purchased by Zink of Crowfoot; that the latter conveyed to the former the land by deed with full covenants; that Crowfoot purchased the land of one Allen, and in part payment therefor executed to Allen two promissory notes, one for nine hundred and fourteen dollars and sixty-five cents, the other for nine hundred and thirteen dollars and sixty-three cents; that Allen's notes were due and unpaid, and that before the commencement of this action, Allen notified Zink that he held a vendor’s lien on the land, and intended to enforce it'; that Allen had sued on one of the notes and obtained judgment thereon; that he had execution issued on the judgment and returned nulla bona-, that at the time of the conveyance from Crowfoot to Zink, the latter was wholly ignorant of the existence of the lion; that Crowfoot falsely and fraudulently concealed the existence of Allen’s lien; that Crowfoot has sold all his real estate, has left the State, and is not a resident thereof; that the defendant is informed and believes that Crowfoot is wholly insolvent; that he has not left sufficient property within the jurisdiction of the court to satisfy any judgment which Allen has or may obtain against him, or any part thereof; that the plaintiff was not fully able to respond in damages to defendant for any breach of his covenants in his deed; that the defendant was, and always had been, ready and willing to pay the notes, and then paid the money into court. Prayer, that before the money should bo paid over, the defendant might be indemnified against Allen’s lien, and for general relief.

The objections made to this paragraph of the answer are, first, that the insolvency of the appellant is averred on in *449 formation and belief; second, that it fails to set out a copy of the judgment of Allen against Crowfoot or of Allen’s notes; third, it is claimed, that Allen’s lien is merged in his judgment, and having'failed in his action against Crowfoot to assert his lien, he has abandoned it. There are positive allegations enough in the answer, independent of that of insolvency, to make it good. The non-residence of Crowfoot, and his inability to answer in damages for the breach of the covenants in his deed to Zink, were sufficient to entitle the latter toNthe relief awarded to" him by the court below.

J. Collins, T. L. Collins, and F. Wilson, for appellant. II. Ileffrcn, for appellee.

Allen’s notes and his judgment against Crowfoot were not the foundation of the answer. They did not belong to, nor were they under the control of,the appellee. It was not, under the code, necessary to make copies of them parts of the answer. Allen had a right to pursue his remedy on the notes, without waiving.his vendor’s lien.

The court committed no error in overruling the demurrer.

The court gave judgment against the appellee for the amount of the note sued on, and enjoined the clerk from paying over the money to the appellant until he indemnified the defendant against Allen’s lien. This was substantial justice.

The judgment is affirmed, with costs.