Hale v. Plummer
| Decision Date | 28 May 1855 |
| Citation | 6 Ind. 98 |
| Parties | Hale and Others v. Plummer and Others |
| Court | Indiana Supreme Court |
ERROR to the Floyd Circuit Court.
The decree is affirmed, with damages and costs.
H. P Thornton, J. Collins and J. C. Moodey, for plaintiff.
R Crawford, for defendant.
This was a bill to foreclose a mortgage, brought by Plummer, and Benton and wife, against Hale. The property mortgaged was part of a lot in the city of New-Albany. The mortgage was made to Plummer, as trustee of Mrs. Benton, to secure the payment of ten promissory notes of 100 dollars each. The first and second notes having been paid, and the third and fourth being due and unpaid, this bill was filed to foreclose the mortgage. It is in the usual form.
Hale's answer admits the execution of the notes and mortgage, and that eight of the notes remain unpaid. He makes his answer a cross bill, and sets up the following facts: That previous to the execution of the mortgage, he and the plaintiff, Benton had been partners in the milling business; that their partnership property consisted of certain lots in New-Albany, and a steam-mill erected thereon, and three lots in a tract known as Griffin's tract, in Floyd county; that the firm of Hale and Benton was dissolved at the date of said notes and mortgage, being in debt to the amount of about 12,000 dollars; that Benton conveyed all his interest in the partnership property to Hale, who was to pay the partnership debts; that supposing said Hannah Benton to have an inchoate right of dower in said mill property, he gave her said notes and mortgage to induce her to join with her husband in said conveyance, her signature and seal to said conveyance being the only consideration of the notes and mortgage; and that he procured from the creditors of the firm a discharge of Benton from all the partnership debts, and assumed their payment himself.
The cause was set down for hearing upon the bill and answer. The Circuit Court held the answer insufficient, and a final decree of foreclosure was entered, from which the representatives of Hale, who is dead, prosecute this writ of error.
The affirmative matter in the answer not having been denied, either by a replication, or an answer to it as a cross bill, must be taken as true; and we are to consider whether the facts stated therein show that the notes and mortgage were without consideration.
It has been several times decided by this Court, that the sale of an inchoate right of dower, or even of a right vested by the death of the husband, can not be made until after the dower has been set apart. But we do not view this transaction as coming within that rule. The sale of the interest of Benton in the partnership property, and the making of the notes and mortgage, were concurrent acts, aud must be viewed as parts of one transaction. The sum of 1,000 dollars, secured to Mrs. Benton through her trustee, by means of this mortgage, must be regarded as a part of the consideration for the sale of the mill property. No one will doubt, we presume, that a release of dower by the wife, in a conveyance of the husband's real estate, is a valuable consideration, and that the sum to be paid for it may as well be secured to the wife, through a trustee, as in any other way, if the parties so agree.
But it may be answered, the widow of a deceased partner is not entitled to dower in real estate, held for partnership purposes. It is true that real estate may be so held for partnership purposes as to exclude the widow's right of dower; but we think it may also be so held as not to exclude...
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