Reilly v. Rucker

• Decision Date: 06 June 1861
• Citation: 16 Ind. 303
• Parties: Reilly and Another v. Rucker, Executrix of Reilly
• Court: Indiana Supreme Court

16 Ind. 303

Reilly and Another v. Rucker, Executrix of Reilly

Supreme Court of Indiana

June 6, 1861

APPEAL from the Vanderburgh Circuit Court.

The judgment is affirmed, with 1 per cent. damages and costs.

Asa Iglehart and C. Baker, for the appellants.

Jas. G Jones and J. G. Blythe, for the appellee.

OPINION

Perkins J.

William Reilly and Mary his wife, on June 15 1854, executed to James Reilly a mortgage on certain real estate, to secure the payment, among others, of eight promissory notes, amounting in the aggregate to over $ 10,000.

In September, 1858, all of said notes being due, and James Reilly, the payee, being dead, his executors Thomas H. and Marian L. Rucker, instituted a suit to foreclose the above mentioned mortgage.

The fifth paragraph of defendants answer was, as to part of the cause of action, a set-off of two notes of the same date as the mortgage, given by James Reilly, deceased, to William Reilly

To this the plaintiff replied, that William Reilly was indebted to a certain bank in Evansville, naming it, in a sum greater than the amount of the notes mentioned in the fifth paragraph of the answer; that he procured Howard and Brown to go his security on said indebtedness to said bank, and assigned to them on so doing, as collateral security, the notes mentioned in the fifth paragraph of the answer; that Howard and Brown had been compelled to pay a large amount of said debt to the bank, and were still held for the amount remaining unpaid; and that the interest in said notes was in said pledgees, and not in the defendant. The reply is specific as to amounts.

This reply was clearly good. Howard and Brown could not be deprived of their security, by means of those notes, in such a mode; and the maker should not be rendered liable to pay them twice. The evidence on the trial would determine whether the reply was true in point of fact. Under our practice there could be no rejoinder; but if the reply was not proved, the answer would stand as a bar, pro tanto.

The sixth paragraph of the answer was as follows: "That as to the further sum of $ 1,500 of the plaintiff's demand the same has been paid thus: Said Marian L. Rucker, one of the plaintiffs, was the wife of James Reilly, was his executrix, his sole devisee and residuary legatee; and there being a large amount of assets in her hands more than was necessary to pay the debts of the estate and legacies, she, after the death of her said husband, Reilly, and before her marriage with Rucker, her co-plaintiff, agreed with the defendant, William Reilly, that he should furnish her goods, wares and merchandize, as she might need them, pay certain bills, &c., which should be applied in payment of the sum claimed in this suit by plaintiff;" and it is alleged in...