Baker v. Railsback

• Decision Date: 21 December 1853
• Citation: 4 Ind. 533
• Parties: Baker v. Railsback
• Court: Indiana Supreme Court

4 Ind. 533

Baker v. Railsback

Supreme Court of Indiana

December 21, 1853

ERROR to the Marion Circuit Court.

The judgment is affirmed with costs.

J Caven, for the plaintiff.

J. L Ketcham and N. B. Taylor, for the defendant.

OPINION

Perkins J.

Assumpsit upon a promissory note executed by Railsback to one Strang, and by him assigned to the plaintiff Baker.

The defendant pleaded, as to the sum of 200 dollars, part of the sum called for by the note, that said note was given for the last payment on a lot of ground purchased by said Railsback of said Strang for the price of 1,400 dollars 1,100 dollars of which were paid in hand, and said note given for the residue, 300 dollars; that said Strang executed to said Railsback, on the purchase a warranty deed, covenanting that said land was free from all incumbrance, &c., when, in fact, it was not so, but was incumbered by a right of dower, in this, that the then wife of the grantor of Strang had never relinquished her dower, and that she was still living; that the defendant, Railsback, often requested said Strang to remove said incumbrance, but he failed to do so, in consequence whereof, the defendant, on, &c., at, &c., in order to get a relinquishment of said right of dower, was compelled to and did actually pay the sum of 200 dollars, "the same being a reasonable price therefor, and the smallest sum for which the same could be procured," and for which sum relinquishment was obtained, &c.

General demurrer to this plea overruled, and judgment, as to 200 dollars, for the defendant, on the demurrer.

The decision of the Court below was right. There is no open question in the case.

In Doremus v. Bond, 8 Blackf. 368, it is decided that the amount paid to extinguish an incumbrance on land conveyed by deed with full covenants of warranty, may be set up as a defence, the amount being reasonable, to, at all events, the payment of the last instalment of the purchase-money, as well against the assignee, as against the original payee of such instalment; and further, that "the defendant is not bound to plead the matter by way of set-off, springing as it does out of the default of the vendors in relation to the original contract, and not from any new or subsequent dealing," but that he may recoup it from the original consideration. And Whisler v. Hicks, 5 Blackf. 100, and Smith v. Ackerman, id. 541, are to the point that a purchaser of land, with...