Davenport v. King et al. 2. Judgment against evidence and law; was overruled, and exceptions taken. A bill of exceptions contains the evidence. A. L. Davenport alone appeals. The assignment of errors is as follows: 1. The court erred in sustaining the demurrer to the third paragraph of the appellant's answer; 2. The court erred in overruling the motion for a new trial. The court did not err in sustaining the demurrer to the third paragraph of appellant's answer. The fact of suretyship was not apparent upon the face of the note. Both signers upon it appeared to be principals. In such a case it is decided, in Neel v. Harding, 2 Met. Ky. 247, that, to maintain the defence of suretyship, and discharge by extending time, against the plaintiff, "the defendant must allege and prove that the plaintiff had notice that he was surety in the note sued upon," at the time he made the agreement with the other maker of the note, to give further time to pay. This doctrine is founded upon justice and equity. It is thus stated in the opinion in the case already quoted from: "It is a just and reasonable doctrine, that where the parties make an instrument which is assignable, and upon the contract itself hold themselves out as principals, they are to be regarded and treated, both by the assignor and assignee, as occupying the attitude in which they have represented themselves to stand, unless the holder has knowledge that some of them are the sureties of the others. Good faith requires that the holder of the paper should have a right so to regard and treat them. It would be manifestly unjust to subject him to the legal consequence of discharging the sureties to the note by an agreement with the principal, when he was ignorant of the relation in which the parties stood to each other, and had a right to consider them all as Unfried v. Heberer et ux. principals. If they were all principals, an agreement with one of them to give further day of payment would not operate to release or exonerate the others. Such an agreement can not be allowed to have any more effect than it would have if the promisors were all actually, as they all appear to be, principals in the note, unless the holder, at the time he entered into the agreement, had notice that the parties who claim to be sureties did occupy that attitude on the paper." Brandt, in his recent work on suretyship and guaranty,p.22, says: "The great weight of authority and of reason is in favor of the law as above stated." Orvis v. Newell, 17 Conn. 97; Murray v. Graham, 29 Iowa, Wilson v. Foot, 11 Met. 285; See It will be unnecessary to consider the question of extension of time, as no ruling of the court during the trial was excepted to; the only question arising upon the overruling of the motion for a new trial is as to the sufficiency of the evidence to establish the second and fourth paragraphs of the answer. But two witnesses were examined. It is not worth while to copy their testimony. It is lengthy, but in no manner tends to prove the allegations in the second and fourth paragraphs of answer. The court did not err in overruling the motion for a new trial. Judgment affirmed, with costs. UNFRIED V. HEBERER ET UX. ESTOPPEL-Partition.-Married Woman.-Descent.-Effect of Judgment of 63 67 150 110 Unfried v. Heberer et ux. an action by a married woman and her second husband, to obtain partition of lands descended from her deceased former husband, against one alleged to be the owner of the undivided two-thirds by virtue of a purchase by him at a sheriff's sale of such lands on a decree of foreclosure of a mortgage thereon, executed by the decedent, during the existence of such marriage relation, to a third person, the defendant answered, alleging that the plaintiff was estopped because of the facts, that, in such foreclosure suit, to which she and the children of such decedent were defendants, the complaint alleged that the defendants were "heirs" of the decedent, and that, on default, a decree of foreclosure was rendered, adjudging "that from and after" sale thereon "the equity of redemption of the said defendants be forever barred," etc. Held, on demurrer, that the answer is insufficient. Held, also, that a widow is not an " heir" of her husband, in the general sense of that term. Held, also, that such judgment by default concluded the plaintiff only as to her rights as an alleged "heir," and not as the widow, of the decedent. SAME - Estoppel in Pais.—An answer in such action, alleging as matter of estoppel, that the plaintiffs were both present at such sheriff's sale to the defendant, without disclosing their pretended title, and that they had received one-third of the purchase-money paid by the defendant, is insufficient on demurrer. SAME.-Subsequent Coverture.-The rule, that a married woman can not divest her title to real estate by an estoppel in pars, applies with greater force to an attempt to estop her from claiming title to lands descended from a deceased former husband by means of matter in pais existing during a subsequent coverture. SAME.-Practice.-Demurrer Carried Back.-The sufficiency of an answer is questioned by a demurrer questioning the sufficiency of a reply thereto. From the Vanderburgh Circuit Court. A. Dyer and M. R. Anthes, for appellant. S. R. Hornbrook, for appellees. NIBLACK, J.-This was a suit for partition by Anna Maria Heberer and her husband, Peter Heberer, against Peter Unfried. It was shown by the first paragraph of the complaint, that the plaintiff Anna Maria was married to Andreas Roth in the year 1845; that in 1864 Roth died, leaving her, the said Anna Maria, as his widow, and the children whose names are given; that the said Roth, at the time of Unfried v. Heberer et ux. his death, was the owner of a certain described tract of land containing forty acres lying in Vanderburgh county; that the said Anna Maria intermarried with the said Peter Heberer, her co-plaintiff, in 1865; that, as the widow of said Roth, the said Anna Maria became the owner in fee of one undivided third part of said real estate, and was still the owner thereof as a tenant in common with the defendant, who owned the remaining two-thirds of the same; that the defendant had purchased his interest in said real estate under a decree of the Vanderburgh Circuit Court, rendered in 1866, in an action to foreclose à mortgage ou the same executed by said Roth on the 1st day of September, 1855, and while the said Anna Maria was his wife, said purchase having been made in 1867; and that the defendant claimed to be the exclusive owner of all of said real estate. Prayer for partition and that the title of the said Anna Maria might be quieted. There was a second paragraph of the complaint, but it was withdrawn before the issues were finally closed. The defendant answered in three paragraphs: 1. That the plaintiffs were estopped from asserting any claim to said real estate, because, on the 28th day September, 1866, in an action in said Vanderburgh Circuit Court, in which one Anna Burkhart and others were plaintiffs, and the said Anna Maria Heberer, and her said children, and the said l'eter Heberer, were defendants, for the purpose of foreclosing the mortgage executed by the said Roth and mentioned in the complaint, in which it was charged in the complaint in that action that the defendants were the heirs of said Roth, and in which the said Anna Maria was duly summoned as a defendant and made default, it was ordered and adjudged that said real estate be sold to pay said mortgage, and "that from and after such sale all equity of redemption of the said defendants be forever Unfried v. Heberer et ux. barred and foreclosed," and on the 7th of January, 1867, the defendant had become the purchaser of said real estate at a sheriff sale, under said judgment of foreclosure, for the sum of eleven hundred dollars, and had received a sheriff's deed for said real estate, and was in possession under said deed, claiming the land as his own. 2. That the plaintiffs were present at the sheriff's sale mentioned in the first paragraph of this answer, and encouraged and permitted the defendant to become the purchaser of said real estate without setting up any claim thereto on their part, thereby inducing the defendant to become such purchaser under the belief that he was acquiring, and had acquired, a perfect title to the whole of said real estate, and whereby the plaintiffs were estopped from setting up any claim to said real estate. 3. That, because of facts set up substantially the same as in the second paragraph, with the additional allegation, that the plaintiff's had received one-third of the purchasemoney paid by the defendant, the plaintiffs were estopped from asserting any claim to said real estate. The plaintiffs separately demurred to each paragraph of the defendant's answer, and their demurrer was sustained to the first paragraph and overruled to the second and third. The plaintiffs then replied to the second and third paragraphs: 1. In general denial; 2. That, at the time of the execution by the said Roth of the mortgage mentioned in the complaint, the said Anna Maria was the wife of the said Roth; that the said Koth departed this life in 1864, leaving her as his widow, and three children, still living; that, upon the death of the said Roth, the said Anna Maria became the owner by descent of one-third of the real estate in suit; that in 1865, and before the suit was brought to foreclose said mortgage, |