1851. BENNETT purposes reasonably incident to the enjoyment of the fran- Nov. Term, chise; and that the company was exempted from all other taxes, whether assessed for state, for city, or for township purposes. Gardner, Assessor, v. The State, 1 Zabriskie's R. 557. We are, therefore, of opinion that the Circuit Court erred in dissolving the injunction and dismissing the bill. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. J. Sullivan, M. G. Bright, and W. M. Dunn, for the appellant. J. G. Marshall, for the appellee. V. BUCHANAN. BENNETT v. BUCHANAN. A surety, who has discharged a judgment rendered against him for a debt of his principal, by executing a note not negotiable by the law-merchant, and a mortgage, for the amount of the judgment, cannot sue his principal for money paid until he has paid the note and mortgage, or a part thereof. ERROR to the Huntington Circuit Court. BLACKFORD, J.--Buchanan brought this suit against Bennett for the recovery of money alleged to have been paid by the plaintiff as security for the defendant, his principal. The suit was commenced, under the statute, by notice and motion. The notice, which stands in the place of a declaration, states that, on the 30th of December, 1843, the defendant, as principal, and the plaintiff, with others as sureties, executed a joint and several promissory note for the payment, six months after date, of 670 dollars to Elias Murray and Patrick McCarty, administrators of Daniel Johnson, deceased; that, on the 3d of March, 1846, the said Murray and McCarty sued the now plaintiff, Buchanan, in the Huntington Circuit Court, on the said note, and, on the 17th of March, 1846, recovered judgment against him, in the suit, for 782 dollars and 22 cents, with costs; that on Tuesday, November 25. 1851. BENNETT V. Nov. Term, the 18th of August, 1849, the now plaintiff fully discharged said judgment to said Murray. The notice concludes by saying that, by virtue of the premises, the now defendant, BUCHANAN. Bennett, as the principal debtor, became liable to pay the now plaintiff, Buchanan, as his surety, the sum of 942 dollars and 18 cents, that being the amount of said judgment, interest, and costs. The defendant pleaded the general issue. The cause was submitted to the Court, and judgment rendered for the plaintiff. On the trial, the note and judgment described in the notice were proved. The evidence relative to Buchanan's payment of the judgment is as follows: The following entry on the judgment-docket of the Huntington Circuit Court: "Elias Murray and Patrick McCarty v. Joseph Buchanan. Assumpsit. Date of judgment, March 18, 1846. Amount of judgment, $782.22. Received the amount of the within judgment in full, and the same is hereby discharged. August 1st, 1849. Elias Murray, adm'r." The said Murray was examined as a witness. He stated that he had signed said receipt, and that said judgment was paid and discharged by Buchanan by his giving a promissory note for the sum of 942 dollars signed by him and payable to the witness; that the last mentioned note was amply secured by a mortgage, on real estate, but was still due and unpaid. The witness further stated that said judgment had been in no other way paid or discharged. The plaintiff also proved the amount of costs in the suit in which said judgment was rendered. There was no other evidence. The only-question in this cause is, whether or not the evidence supports the action. The suit is for money paid by a surety for his principal. The evidence of the payment is the plaintiff's discharge of a judgment which had been rendered against him for the debt for which he was surety; the discharge being procured by means of a note and mortgage as above Nov. Term, stated. 1851. BENNETT V. There are some cases favorable to the plaintiff's recovery, but the weight of authority is against him. The BUCHANAN. correct doctrine seems to be, that an action, like the present, for money paid will not lie, without proof of an actual payment of money, or that which is equivalent to such payment. In this case there was no payment of money, nor was there anything equivalent to such payment. There were, to be sure, a note and mortgage given and received in satisfaction of the judgment, but that was not sufficient. Had the plaintiff shown that the note thus given and received was negotiable by the lawmerchant, the case would have required more consideration. We have heretofore had a case very similar, in principle, to the present one. There a note, not negotiable by the law-merchant, had been given by the surety to the creditor and received by the latter in satisfaction of the original debt. The surety afterwards, but before payment of said note, sued his principal for money paid, relying on his having thus satisfied the original debt. The Court held that the suit would not lie. The ground of that decision is, that the plaintiff had paid no money, nor done anything equivalent to such payment. Pitzer v. Harmon, 8 Blackf. 112. It will be time enough for the plaintiff when he shall have paid his note and mortgage, or, at least, a part thereof, to sue his principal for money paid. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. D. D. Pratt, for the plaintiff. R. Brackenridge, Jr., for the defendant. VOL. III.-7 Nov. Term, 1851. DOE V. KINNEY. Tuesday, DOE on the Demise of RUSH v. KINNEY and Another. A testator disposed of his estate by will, as follows: "I, J. R., do make and publish this my last will and testament in manner and form following, that is to say, after all my just debts are paid, I give and bequeath to my wife, Ann, a certain grey mare, &c., as also all my real and personal estate during her natural life, provided she should not marry, and, at her death, to be equally divided between my brothers and sisters. But, in case she should marry, then the one-half of my estate to be divided equally between my brothers and sisters, or their heirs; and the other half I bequeath to my said wife," &c. Held, that upon her subsequent marriage, she took an estate in fee in the testator's real property. Where a will is free from ambiguity, and the testator's intention is so manifested that, by giving the language employed by him its ordinary and legal signification, no doubt remains of the quantity or duration of the estate devised, a Court will not inquire into the motives which might have influenced the testator, in order to prove or infer that he meant to devise a different estate. ERROR to the Fountain Circuit Court. SMITH, J.-Ejectment against the defendants in error for a certain tract of land in Fountain county. Judgment for the defendants. Both parties claimed under the will of Josiah Rush, who died in 1835, seized of the premises in controversy. The will is as follows: "I, Josiah Rush," ***“do make and publish this my last will and testament, in manner and form following, that is to say, after all my just debts are paid, I give and bequeath unto my beloved wife, Ann Rush, a certain grey mare that I have lately got of Joshua Walker, as also all my real and personal estate, during her natural life, provided she should not marry, and at her death to be equally divided between my brothers and sisters. But, in case she should marry, then, and in that case, the one-half of my estate to be divided equally between my brothers and sisters, (or their heirs,) and the other half I bequeath to my said beloved wife, Ann Rush, whom I hereby appoint my executrix, and Jacob Kinney my executor." Ann Rush, the widow, intermarried with one Alexander, and, with her said husband, made a conveyance of one undivided half of said premises. She and her said hus- Nov. Term, band are both dead. The defendants claim under the conveyance of Alexander and wife, and the lessor of the plaintiff is one of the brothers of the testator. The plaintiff requested an instruction to be given that Ann Rush, the widow of the testator, took an estate for life only in one-half of the real estate devised, in the event of her marriage. This instruction was refused, and the Court instructed the jury that she took a fee-simple estate under the will. The only question presented is, whether the instruction given was right. We think it was. The word "estate," in the last sentence of this will, is used to describe the property which the testator meant to devise, and, in such cases, it is well settled that the use of this word in a will, unaccompanied by any restriction or limitation, suffices to convey all the estate the testator had. Doe v. Doe v. Harter, 7 Blackf. 488. (1.) The plaintiff contends that it is inconsistent with the motives which influence the conduct of men, to suppose the testator meant to give his widow a more valuable estate if she married again than if she remained single, and, therefore, it should be inferred from the whole will, that it was his intention to give her a life estate only in one-half of his real property, in case of her marriage. But we cannot, in this case, resort, with any propriety, to such an argument as this, for the purpose of ascertaining the intentions of the testator. It is true, when there is any inconsistency in the different clauses of a will, if the intention of the testator can be inferred from the whole will taken together, that intention should govern; and when there are any latent ambiguities, by reason of which the intention is not manifested or expressed with certainty, the uncertainty may be removed by evidence of extrinsic facts, or, in some cases, perhaps, by a resort to arguments founded on the motives which usually influence human conduct. But when there is no such ambiguity, and, as in this case, the intention of the testator is mani 1851. DOE V. KINNEY. |