Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1849-09-06
SUPREME COURT OF INDIANA.
REPORTED BY ALBERT c. PORTER, AND HoEArIo c. NEW
cOMB, EsaRs.

REPoRrED ALBERT C. PORTER HoEATIo C new
cUMB, EsaRs.
Patterson T. Brdekeff.-AppeaI hom the Marion C. c.
Affirmed with 10 per cent damages
Caldwell Rose ct al Appeal fiOm the Pa'ke {. {.
PERKINS a. being Indebted beyond his ability TO pay
nude assignment Of his real and sona property except
much by law exempt from execution, ia trust for
preferred cicdoIs. The asSgnees young men,
employees and creditors oil the ssgnoT, and boades IN hs
family After the assignment apparent change took place
possession cuntol Of the popcry sssguees
followed the directions Of assgno regard dpo
son even, cases. to the violating Of the provisions
Of the deed Of uust. The assignecs OF doubtful COM
potency to mage extensive trust committed 10
them. 1t proof that the asgnOr stated about the
time Of the transfer that certain of his cTedito parties to
this suit he would also appeared that pat Of
the properly tiNn-feTTed, aerward, candesnely
by Of the sssignees, the assigRo Louis
Held that there having been exclusive Of the
property by the asenees and sosnd shown fr the
omission to take such possessi said assignment must To
creditors be considered fraudulent aud VOID, far last
the personal property was concerned.
Fraud between the and assgnees having been
abshed the decsI Of the fomer made subsequently
TO The assignment may be received in evidence against the
assigDees suit between them and conieng cEediOIs
deed void part for fraud void toto; aud fact
that there are innocent creditors Tor IN fraudulent
general assignment by deed Of uus will not make The
Kinney & GOOkins, R. W. Thompson & C. w. Barber for
appellants.
Gr,wod Usher for appellees.
B-issI Williams Ell a. Error to the Lagrange C. C.
ReUersed
lC.C.
BLACKBOARD, J. The vendors Of certain lands sold
trustees under appointment OF the Allen e.
c. gave to the vendor certificate Of purchase which, after
recng the payment of part Of the purchase ard
receipt Of the notes of the vendee for the residue
should the purchaser his legal representatives,
pay the notes they should respectively become due and
payable then aud in that the vendors their
soGs would convey the lands vendce his hes &c.,
by good and sufficient deed in fee simple with the usual
covenants Of general warranty Held that The provisions Of
said contract were dependent and that to authorize
h ,s last due the nIaint or their predecessor. rust
have executed the deed the day appointed for tho pay
ment Of those notes. have legally offered that dag to
IoaA. tto mia ,o fhoe fba
previously where suit is not brought until after the time
U when the last note becomes payable.
An allegation such that neither the vend
or nor their according TO the
tenor effect Of The Ggreeent, before, &C., equiv
aent saying that they had not legally offered the deed on
> the day, &c, aud is sufficient 10 substance.
Such allegation is conclusion Of law. but Of
fact together and may be traversed In this
the purchaser by his contract, entitled to deed with
covenants of general warranty; and if the trustees exceed
ed their authority in agreeing make such Decd they
personally liable Tor The performance oil their covenant
Affirmed
W. H. Coombs for appellants J. B. Howe d. II. Cole
y ick and II. Cooper, for appellee.
l. GOrhan Reeves ct a. Appeal from the Hendricks c.
BLACKBOARD J. This action OF debt commenced III
1885, promsory note due Aug 10, ls40 The defend
that the plaintiff would, the 10Th Of August 1871,
re cute defendant sufficient deed IN fee simple for
certain Of land describing m that the plaintiffs The
day sued gven executed to the defendant
ut title conditioned that they would said land Il
defendant in fee simple the 10Th oil August S4
T. Averments the plaintiffs did said 10th day d
., August 1871, offer execute have They
thence hitherto offered to execute to the defendant good
and sufficient deed in fee simple &c although the defend
ant was said 18th day Of August S4l and has cOntn
ued thence hitherto willing aud ready pay the mute tbs
plaintiffs they would make him such deed aforesaid
Replication that in March, 1896 before suit, &c. plaintiff
- offered defendant deed in fee &C. aud demanded
Of the note but the defendant refused &c that PLAIN
ne ts times since been ready 10 deliver the deed
ce the defendant il he would pay the notes. Held that Ih
MI plea and replication both bad The plaintiffs
y bound make unconditional tender Of the deed II
q" only incumbent on them offer deed the 18th
August Is4 condition that the defendant would, at tn
time, them the note the plea not taYesng sue
conditional offer the appointed day does show
performance of the contract the part Of the plaintiffs.
The issue raised by the replication, whether not III
plaintiffs had offered to make the deed IN March, $780, wa
an an immateTal ISSUE
on The defendant also pleaded the plaintiffs
of the sale and thence hitherto
simple Of the land for which the was given the pie
also alleged plaintiffs the time Of the making
noe falsely aud frauduleny represented to the defead
be they in fee simple OF the land, &c
he that defendant conng &c., gave TO the plaintiffs th
pl noe Replication, that the note obtained fsirI
by fraud alleged Held, that that part Of th
y plea denying the ownership Of the plaintiffs 10 the land s.
se- good the action. If the plaintiffs 1t
Of the land on the 10Th oil August S4 they cou
he perform part Of the aud consequent
m could the DoIe The allegation of fraud is IN
h MATERIAL aud therefore the issue raised by the replication
In The finding OF both immatcria issues this
ed the plaintiffs, did not entte them to final judgment;
ay plaintiff only being entitled to judgment finding in
mi favor immsleal issue to bad plea, where there
-. other issue in the
The defendant could not have judgment non obsdnie
edcfo finding of the second immaiera issue again
him. The plaintiffs did not by their replication expess
allegation of nOn-ownershp alleged in the
ba plea aud implied admission like the in quesu
~ does not authorize judgment O5stdnte usredcto.
The rule that the party committing the first fault IN plea
ing shall be allowed cpeader applies only where
issue is found against him. Where The issue is
70 favor he may have TePleader
of Reversed Replication second plea set aside. Fndr
by the first issue remain Cause remanded with leave
ii plaintiffs reply to the second plea
ed j. s. Harvey, for appellants C. C. Nave Tor appelees
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