Lash v. Rendell
Lash v. Rendell
Opinion of the Court
Opinion of the court by
Afterwards, on or about March 13, 1872, the said Philip Lash sold and conveyed said real estate to the appellee, George W. Ren-dell, who was still the owner thereof and who, as a part of the consideration of said conveyance, assumed the payment of said judgment for alimony. On March 17, 1873, the said Philip Lash died, intestate, and one James N. Childs was appointed as his administrator and had administered his estate. The estate of said decedent had been finally settled, and, after the payment of the claims filed against said estate and said administrator had been finally discharged, no assets had been left for distribution and none had been received by his heirs at law. There was still due the appellant and unpaid, on said judgment for alimony, the sum of $176.41, of principal and interest, at the commencement of this suit.
Upon the foregoing facts, alleged in her complaint, the appellant asked that the appellee might be required to show cause why said judgment should not be enforced against said real estate, and that the court would order an execution to be issued for that purpose, and for all other proper relief.
On the trial of the cause the court made a general finding in favor of the appellee, the defendant below. Thereupon, the appellant moved the court for a new trial, and, after argument, the court .being satisfied that it had erred in its computation of the amounts of interest, on the instalments of the judgment for alimony, and in
The appellant has here assigned, as errors, the decisions of the court below, in overruling her demurrer to the first paragraph of appellee’s answer, and in overruling her motion for a new trial.
We note the fact in the outset, that the appellee’s counsel have failed to furnish this court with any brief or argument in support of the decisions of the trial court; and that we have been compelled-to depend entirely upon the record, and the elaborate brief of the appellant’s counsel, for such information as we have in regard to the grounds upon which the court rested its decisions.
In the first paragraph of his answer, appellee alleged in substance, that the appellant ought not to be allowed to plead the matters and things in her complaint stated, because, he said, that on February 25, 1873, the judgment-defendant, Philip Lash, paid on said judgment the sum of $226.02; that afterwards, on March 9, 1876, the appellee went to the office of the clerk of the court below, for the purpose of paying off and discharging said judgment, knowing it to be a lien upon the real estate purchased by bim of said Philip Lash, and described in appellant’s complaint, and having in his hands a sufficient amount of the unpaid purchase-money therefor to pay off and satisfy said judgment, and to relieve and discharge his said realty from the lien thereof; that he then and there proposed to the clerk of said court to pay said judgment, or any balance thereof, then remaining of record unpaid; that the said
In whatever light this first paragraph of the appellee’s answer may be viewed, we are clearly of the opinion that it did not state facts sufficient to constitute any valid or legal defense to the appellant’s cause of action, and that her demurrer to said paragraph of answer, ought to have been sustained. If it should be regarded as a special plea of payment, it was clearly bad for the reason that, while it purported on its face to be an answer to the entire complaint, it was in fact an answer to only a part of the complaint. It is well settled by the decisions of this court, that each paragraph of answer must fully answer the entire complaint, or so much thereof as it purports to answer, or it must be held bad on a demurrer thereto, for the want of sufficient facts. Reid v. Huston, 55 Ind. 173; Smith v. Little, 67 Ind. 549; Frazee v. Frazee, 70 Ind. 411.
If, however, the facts alleged in said first paragraph of answer were pleaded as an estoppel of the appellant, the paragraph was clearly insufficient on the demurrer thereto for the want of facts. The paragraph set up certain receipts, alleged to have been given by the appellant, and by her attorney, for money paid or claimed to have been paid on the judgment, described in her complaint. It may be laid down as a rule we think, under the decisions of this court, that a receipt for money paid is not conclusive and will not work an estoppel. It has been repeatedly decided by this court, that a receipt may be explained, controlled, qualified or even contradicted by parol evidence. Henry v. Henry, 11 Ind. 236; Moor v. Forty, 11 Ind. 341; Krutz v. Craig, 53 Ind. 561; Pauley v. Weisart, 59 Ind. 241; Leedle v. The State, 62 Ind. 26. In Lopping v. Duffy, 65 Ind. 229, this court held that, as the law does not provide for the receipting of judgments upon the record, or the effect of such receipts, they stand upon no other ground than ordinary receipts, and are subject to be explained or contradicted, as against purchasers without notice.” It would seem, therefore, that such receipts, as those set up in the first paragraph of answer, in the case at bar, could hardly be regarded as constituting a good plea of estoppel. “ Every estoppel, because it concludeth a man to allege
But the law is settled, we think, that the doctrine of estoppel can have no application, where everything in relation to the transaction is equally well known to both parties. Fletcher v. Holmes, 25 Ind. 458. In the case now before us, the appellant alleged, in her complaint, that shortly after the rendition of her judgment, the appellee became the purchaser of the real estate described, subject to the lien of her judgment for alimony, and assumed the payment thereof as a part of the purchase-money for said real estate. This allegation was not controverted, in any manner, in or by the first paragraph of answer, and therefore, under section 74 of the Code, it must “ be taken as true,” in determining the sufficiency of said paragraph of answer. If the appellee became the payer of the appellant’s judgment, as we must assume that he did, we can not see how he could have been misled by the receipts given, or upon what ground it can be claimed that those receipts should estop the appellant from collecting the judgment from the real estate, on which it was a lien, when the appellee, as the owner of the real estate, had assumed the payment of her judgment. Besides, it may be fairly inferred, we think, from the allegations of the first paragraph of answer, that duplicate receipts had been given for one of the installments of the judgment, one by the appellant to Philip Lash, and the other by her attorney to the sheriff.
We conclude, as we began, with the expression of our opinion that the first paragraph of the answer is clearly bad, and that the appellant’s demurrer thereto, for the want of facts, was well taken and ought to have been sustained.
The judgment is reversed, at the appellee’s costs, and the cause is remanded with instructions to sustain the demurrer to the first paragraph of answer, and for further proceedings in accordance with this opinion.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.