McHenry v. Knickerbacker et al. We have carefully examined all the other questions presented by the record, and feel warranted in saying that the court did not err in sustaining the demurrer to the complaint in this cause. Judgment affirmed. Filed April 10, 1891. No. 14,825. MCHENRY v. KNICKERBACKER ET AL. MECHANIC'S LIEN.-Surety on Contractor's Bond can not Enforce Lien for Materials Furnished.-A surety on a contractor's bond who undertakes that the contractor shall pay for all materials used in the building can not enforce a lien for materials furnished by him at the request of such contractor. From the Dearborn Circuit Court. H. D. McMullen, G. M. Roberts and C. W. Stapp, for appellant. J. K. Thompson and A. Q. Jones, for appellees. ELLIOTT, J.-The appellant, in his complaint, alleges that he furnished materials for the erection of a building which John S. Morris had undertaken to erect for the appellees, and that notice of his intention to hold a lien was duly given and recorded. The answer of the appellees sets forth the contract with Morris, and a bond executed by the appellant and others to secure the performance of the contract by Morris, the principal contractor. The contract with Morris provided that he should furnish and pay for all materials used in the building; and further provided that the appellees might, at any time, make such alterations in the plan, or work, as they should deem proper. We have no doubt as to the sufficiency of the answer. McHenry v. Knickerbacker et al. The appellant undertook that the principal contractor should furnish and pay for all materials used in the building, and he can not, in the face of this undertaking, demand compensation for materials furnished at the request of the contractor. It would violate the plainest principles of justice to permit the appellant to enforce a lien, for it would allow him to exact payment for property which he had explicitly promised should be paid for by another. The reply endeavors to avoid the answer by showing that changes were made by the appellees; but the effort is fruitless. The contract between Morris and the appellees gave them the right to make such changes as they deemed necessary, and they can not be made to suffer for doing what their contract gave them a right to do. If there had been no right to make changes, the decision in Judah v. Zimmerman, 22 Ind. 388, would exert an important influence; but the contract expressly confers such a right, and hence that case is not relevant to the matter here in dispute. The effect of the legal principles we have stated is not changed by the fact that the appellant was one of several sureties, for he is precluded from doing what his contract forbids, and so are his co-sureties. No one of them, nor all combined, can enforce payment for materials used in the construction of the building, for the plain and unanswerable reason that they have undertaken that their principal shall pay for all materials and work. Judgment affirmed. Filed April 11, 1891. The Blue Ridge Marble Company v. Duffy. No. 15,010. THE BLUE RIDGE MARBLE COMPANY v. DUFFY. ESTOPPEL.-Sale of Real Estate.-Acquiescence.-Pleading.-In an action to enjoin the sale of certain real estate on execution to satisfy a judg ment in favor of the defendant and against a third person, the complaint alleged that before the judgment was recovered the real estate was conveyed to the plaintiff and the deed recorded on the same day. The answer alleged that at the sale on execution (which took place after the complaint was filed) the plaintiff stood by and saw the real estate sold as the property of the judgment debtor and purchased by the judgment creditor and made no claim thereto, but it failed to allege that the defendant had no notice of the sale to the plaintiff of the real estate in controversy. Held, that the answer was insufficient as a plea of estoppel, and was demurrable. From the Bartholomew Circuit Court. J. W. Morgan, for appellant. G. W. Cooper and C. B. Cooper, for appellee. COFFEY, J.-This was an action by the appellee against the appellant, and one Brown, as the sheriff of Bartholomew county, to enjoin the latter from selling, on an execution in his hands, certain described real estate in said county. The complaint alleges that the appellant recovered a judgment in the Bartholomew Circuit Court against one Godfrey, on the 23d day of March, 1888; that the clerk of said court issued an execution on said judgment, and placed the same in the hands of said Brown, as the sheriff of said county, who levied the same on the real estate described in the complaint as the property of said Godfrey, and was threatening to sell the same in satisfaction of said judgment; that said real estate was not the property of said Godfrey at the time said judgment was rendered, nor at the time of said levy; that on the 21st day of March, 1888, said Godfrey conveyed said real estate to the appellee, by deed, which was duly recorded on the same day. Prayer for an injunction. The complaint was filed on the 7th day of July, 1888. The Blue Ridge Marble Company v. Duffy. To this complaint the appellant filed an answer, the second paragraph of which avers that the real estate described in the complaint was sold by said Brown, as such sheriff, on the execution described, on the 11th day of August, 1888; that appellant purchased the same for the sum of $250, and the costs of sale, amounting to $34; that the appellee, at the time of the sale, stood by and saw said real estate sell as the property of Godfrey, and made no claim thereto; that appellant, at the time of the commencement of this suit, was a non-resident of the State, and had no notice of the pendency thereof; that no summons was issued against the appellant, or publication made, and that no notice of the pendency of this action was given at the time of the sale, and that the appellant was ignorant thereof at the time of the purchase. A demurrer was sustained to this answer, and appellant excepted. The only question in the case relates to the propriety of the ruling of the circuit court in sustaining the demurrer to this answer. The answer is pleaded upon the theory that the matters therein set out estopped the appellee from maintaining her action for an injunction. As a plea of estoppel this answer is clearly insufficient. Hosford v. Johnson, 74 Ind. 479. It admits that the appellee's deed was duly recorded on the 21st day of March, 1888, two days prior to the date of the appellant's judgment against Godfrey, and does not deny that appellant had notice of appellee's title at the time of the purchase at the sheriff's sale. Nor does the answer aver that the appellant acted upon the silence of the appellee. This was not a secret title, but it was one of which notice had been promptly given to the world in the manner prescribed by law, and of which the appellant was bound to take notice. The court did not err in sustaining a demurrer to this answer. Judgment affirmed. Filed April 11, 1891. Messick v. The Midland Railway Company. No. 14,779. MESSICK V. THE MIDLAND RAILWAY COMPANY. EASEMENT.-Parol License.- When Irrevocable.-A naked parol license to enjoy an easement over land is revocable by the licensor at any time while it remains executory, but an executed parol license to use another's land, granted upon a consideration, or upon the faith of which money has been expended, can not be revoked. QUIETING TITLE.-Insufficiency of Answer Setting up an Easement.-In an action to quiet title, an answer which, without denying plaintiff's title, sets up an easement in the land as a full defence to the action, is demurrable. SAME-Railroad.-Easement.-Directing Verdict.-In a suit against a railroad company to quiet title, where it was a material question whether the company had a valid easement in the land, depending upon whether the entry upon said land by the company and the construction of the roadway were with the knowledge and consent of the owner, and the owner testified that he objected to and protested against the entry, which statement was not denied by the defendant, it was error in the court to take the case from the jury and direct a verdict for the company. PRACTICE.-Overruling Demurrer to Bad Answer.--Sustaining a demurrer to a good special answer, when the facts pleaded can be shown under the general denial already in, is not available error, but it is otherwise where the court overrules a demurrer to a bad answer. Such error is fatal. From the Montgomery Circuit Court. T. E. Ballard and E. E. Ballard, for appellant. MCBRIDE, J.-The appellant brought suit to quiet her title to a tract of land in Montgomery county, alleging in her complaint that she was the owner of the same in fee simple, and that the appellee claimed an interest therein adverse to her rights, which claim, it was alleged, was without right and unfounded, and cast a cloud upon her title. Appellee answered by general denial, and by a special answer, alleging, in substance, that in the year 1873 Thomas H. Messick, appellant's husband, owned the land in controversy, and that the Anderson, Lebanon, and St. Louis Railroad Company, a corporation organized under the laws of this State, was at the time engaged in constructing a line of railroad, and had located the same upon and VOL. 128.-6 |