Page images
PDF
EPUB

Cooper et al. v. Cooper et al.

should execute notes, to secure the purchase-money, with a mortgage, to be signed by his wife.

On the 29th of May, 1860, Charles G. Cooper died. On the day before his death, he executed his last will and testament, by which he devised to his wife, Eliza, and his daughter, Julia Isabel Cooper, a certain house and lot in Peru, he then owning, as is alleged, no other real estate, except the house and lot thus devised, and the land thus sold to Springer. The will contains the following further items necessary to be noticed here:

"I further will and devise to the said Eliza the proceeds of all debts due to me, after all my just debts shall have been paid. Item Third: I further will and devise to my parents, to-wit: William and Lucy Cooper, or to either of them who may survive me, all other lands and tenements, of which I am now seized, or of which I am now the owner, the same being situated in the said county of Miami."

On the 8th of January, 1861, administration, with the will annexed, having been granted to Alvin Crippen, on the estate of the deceased, the notes and mortgage contemplated by the contract, for the sale of the land, were executed to the administrator, by Springer and wife, and the deed was delivered to Springer.

This suit was brought by William and Lucy Cooper against the administrator, who has received a part of the purchasemoney, and against Eliza Cooper, who claims the whole of it, under the will.

The plaintiffs claim, that as the legal title to the land was in Charles G. Cooper at the time of his death, it passed to them under the will, and they take it, subject to the contract of sale, and are therefore entitled to the proceeds, instead of the land itself. Judgment below for the plaintiffs. This judgment will have to be reversed.

Cooper et al. v. Cooper et al.

The following authority seems to be decisive against the plaintiffs' right to the money:

"Where the testator contracts to sell the devised estate, and dies, without having executed a conveyance to the purchaser, the devise remains in full force as to the legal estate, and no further, this being all the interest the testator has to dispose of at the time of his decease; and the conversion, as between the real and personal representative, being completely effected by the contract, (supposing it to be a binding one,) the devisee, it is conceived, takes only the legal estate, and the purchase-money constitutes a part of the testator's personal estate. *** In the case of Knollys v. Shepherd, 1 J. & W. 499, where K., having contracted with M. for the sale of an estate at F., afterwards devised it to his wife, by the description of all that my estate which I have contracted to sell to M.,' it was held that this was nothing more than a devise of the legal estate, to enable her to carry the contract into execution, and did not operate as a legacy of the purchase-money. In making these observations, it is not forgotten, that, by the terms of the recent act, the devise takes effect in regard to any estate or interest which the testator had power to dispose of. But supposing the contract to be effectual, and binding on both parties, and no obstacle to exist to its performance, the devisor has no beneficial estate or interest to dispose of, the entire equitable ownership in the land having become vested in the purchaser, by whose will it would pass as real estate. The estate of the vendor is, in contemplation of equity, disposed of, and converted into a money fund. If this fund would pass under a particular devise of land, it must, upon every sound principle of construction, be included in a general devise, and yet it could not for a moment be contended, that, when a testator, having contracted for the sale of an estate, devised all his real estate to A, and his personalty to B, the purchase-money belonging to A, as

Test et al. v. Small.

part of his real estate, and not to B, as part of his personalty. Indeed, the case of Knollys v. Shepherd seerns to set the matter quite at rest as between the particular devisee of the land and the personal representatives of the testator." 1 Jarman on Wills, p. 185, et seq., (Perk. ed.) See Donohoe v. Lee, 1 Swan (Tenn.) R. 119, and Farrar v. Earl of Winterlon, 5 Beav. 1.

The 6th section of our act concerning wills, (2 R. S. 1852, p. 311,) has no application to the case, as that applies to cases of a contract for the sale of land, made after the making of a will. Here the contract of sale was made before the will. Per Curiam.-The judgment below is reversed, with costs, and the cause remanded.

H. J. Shirk and W. S. Benham, for the appellants.
N. O. Ross and R. P. Effinger, for the appellees.

TEST et al. v. SMALL.

JURISDICTION-REPLEVIN.-Actions of replevin may be instituted before any justice of the peace in the county, without reference to the fact that the defendant may reside in a different township from that in which the justice resides.

APPEAL from the Wayne Common Pleas.

Per Curiam.-Actions of replevin may be instituted before any justice of the peace in the county where the defendant resides, though he reside in another township than that in which the suit is brought. Beddinger's Adm'r v. Jocelyn, 18 Ind. 325. The judgment below is affirmed, with costs.

W. S. Ballinger and J. B. § I. F. Julian, for the appellants. Lafe Develin and Geo. A. Johnson, for the appellee.

[merged small][ocr errors][merged small][merged small][merged small][merged small]

REPLEVIN-PLEADING.-It is not necessary that the answer of the
defendant in replevin should claim a return of the property; but
if the case made by the evidence authorizes a return, it may be
awarded by the Court, after verdict.
EXECUTION-CHATTEL MORTGAGE.-Where personal property (mort-
gaged) continues in the possession of the mortgagor, and is taken.
in execution to pay his debt, it is incumbent on the mortgagee, in
an action to recover the same, to show that the mortgage had been
recorded within ten days after the execution thereof.

APPEAL from the Putnam Circuit Court.

WORDEN, J.-Action by the appellant against the appellee, to recover the possession of certain personal property. Issue, trial, finding and judgment for the defendant.

One Wright and others had recovered a judgment against John W. Matlock; and by virtue of an execution issued thereon, the defendant, as deputy sheriff, had levied upon the property in controversy, as the property of said John W. Matlock, the judgment defendant. The plaintiff claimed the property by virtue of a mortgage, executed by John W. Matlock to the intestate, David Matlock. The appellant claims that the Court, who tried the cause, admitted irrelevant and incompetent testimony, and that the finding was not sustained by the evidence. These objections can not prevail. Strike out all the appellant objected to, and still the finding is right. The property, after the execution of the mortgage, continued in the possession of John W. Matlock, and there was no proof that the mortgage was recorded within ten days, as required by law in such cases. 1 R. S. 1852, p. 301, sec. 10; Chennyworth v. Daily, 7 Ind. 285.

It is also objected, that the Court erred in awarding a return of the property, the defendant, in his pleadings, not naving prayed such return. It was not necessary that the

Newkirk v. Burson et al.

defendant, in his pleadings, should have claimed a return of the property. Corner et al. v. Comstock, et al., 17 Ind. 90. The Court rendered judgment against the plaintiff, personally, for costs. This was a mere clerical error, if erroneous, and might have been amended in the Court below, and, according to the case of Stevenson v. Bruce, 10 Ind. 397, will be deemed amended here. No question was made in this respect in the Court below, and it can not be made for the first time in this Court.

Per Curiam.-The judgment below is affirmed, with costs.
C. C. Nave, for the appellant.
Rand & Hall, for the appellee.

NEWKIRK V. BURSON et al.

WITNESS STATUTES CONSTRUED.-Where a mortgagor dies and the mortgagee sues the heirs and administrator of the mortgagor to foreclose the mortgage, and defences are interposed by the heirs, the mortgagee, under the provisions of the last proviso of the third section of the act of March 11, 1861, (2 G. & H. p. 168,) is a competent witness in his own behalf.

MORTGAGE-FORECLOSURE.

MORTGAGE FORECLOSURE.- Where suit is instituted against the heirs and administrator of a deceased mortgagor to foreclose a mortgage, no judgment can be rendered against such administrator for the balance of the debt not satisfied by the sale of the mortgaged premises.

USURY.-Usury may exist where there is no loan of money; or where

money debt is created and forborne; or where the original contract by which a debt is created is for the purchase and sale of land, it may be usury for the vendor to demand and receive more than legal interest for the forbearance of such debt.

VOL. XXI.-9.

« PreviousContinue »