White et al. v. The Butler University. tations of material facts. There is nothing to take this case out of the general rule. Commendations of the value or quality of a thing are not regarded as fraudulent representations. Simplex commendatio non obligat." Neidefer v. Chastain, 71 Ind. 363. If it were to be held that the representations concerning the value of the scholarship were binding and material, still the answer, if treated as stating a defence of fraud, would be insufficient, for the reason that it is not averred that this representation was untrue. No answer pleading the defence of fraud can be good without averring that the representations stated as the ground of defence are false. The answer does not show a failure of consideration. Appellant contracted for and received two shares of stock, which entitled him to a scholarship in the university. It was for this that he contracted. There was no fraud. As appellant got what he contracted for, and was not deceived by any fraudulent representation, he can not defend against his bond. The rule, that where one gets the thing for which he knowingly bargains he can not complain, is a rudimental one, and fully applies to this case. The answer does not aver that White did not get the thing he bargained for, but that it is of less value than he believed it to be. The stock and scholarship he obtained in accordance with the terms of his contract, and, therefore, received the full consideration which he demanded. In such a case there is no failure of consideration. The case of Coil v. The Pittsburg Female College, 40 Pa. St. 439, closely resembles the present. In the opinion there delivered it was said, in speaking of a plea very similar to that under consideration: "This is called a failure of consideration, but improperly. It is not averred that the defendant does not get the scholarship, in payment for which he gave his notes. It is not alleged that he does not obtain all that it was contemplated he should have when the contract was made. That the scholarship turns out not to be worth as much as he expected may be a misfortune, but it is not a failure of consideration." 78 590 152 457 McMillan et al. v. Hadley et al. The appellant White was a corporator when the change was made in the rate of tuition. Those who made it were his representatives. His answer avers that the change was made by the competent "authorities of the University and by proper action," and it is therefore to be treated as an expression of the will of a majority of the corporators. At the time he made his subscription, he was bound to know the powers, rights and duties of the corporation of which he became a member, for these were defined by a public law. He was bound to know that the corporation had authority to make such changes respecting tuition as would promote the object for which the corporation was created. He must have known that the majority of the corporators possessed full control of all corporate affairs, with the authority to make all needful changes in the by-laws of the corporation. He had no right to expect that these by-laws should be like the laws of the Medes and Persians. As the corporation, in making the change, exercised a legal right in a legal manner, it can not be deemed to have injured any person, much less a corporator. It would be a complete subversion of fundamental principles to hold one subject to liability who had done what he might rightfully do, and in the manner which the law authorizes. By altering the by-law respecting tuition the corporation did not release stockholders or borrowers from their liability. The answers were bad and the court did right in sustaining the demurrer of the appellee. Judgment affirmed. No. 8370. MCMILLAN ET AL. v. HADLEY ET AL. PARTNERSHIP.-Real Estate.-Conveyance.-Sheriff's Sale.—Tenants in Canmon.—Notice.—A conveyance to two, by deed in the usual form, vests in McMillan et al. v. Hadley et al. each of the grantees the legal estate to an undivided half as tenant in common (section 2922, R. S. 1881), and if, in fact, the grantees be partners, and the estate partnership property, yet a bona fide purchaser at sheriff's sale upon execution against one of the grantees, without notice of the fact, will hold title to the moiety, against partnership creditors seeking to subject it to their demands. SAME.-Instruction.-Jury.-Practice.-In such a case, an instruction which does not leave to the jury the question of notice to such purchaser at sheriff's sale, is erroneous. From the Clay Circuit Court. G. A. Knight, C. H. Knight and W. P. Blair, for appellants. W. W. Carter and S. D. Coffey, for appellees. NEWCOMB, C.-The appellees, Hadley and Willoughby, sued to foreclose a mortgage executed to them by Jacob Thomas and Isaac W. Sanders. Among the defendants was Robert M. Wingate, the ancestor of the appellants, who has died since the judgment, and this appeal is prosecuted by his heirs. The complaint alleged that the note secured by the mortgage was a partnership debt; that it was given for money borrowed to make a payment on said land, purchased by Thomas and Sanders as partners, and that said land was held by them as partners. Wingate filed an answer and cross complaint, alleging that he was the owner of one-half the land by virtue of a sheriff's sale of Thomas's half of the land, and a deed made pursuant to such sale; and that he held by assignment several certificates of purchase of the interest of Sanders in said land, executed by the sheriff of Clay county pursuant to sales made by him on certain executions against said Sanders, issued upon judgments which were prior liens to the mortgage of the plaintiffs. A denial was filed to the answer and cross complaint. The cause was then tried by a jury, which found a general verdict for the plaintiffs, and specially, in answer to interrogatories, that the debt sued upon was a partnership debt of Thomas & Sanders, and that the mortgaged land was their partnership property. Various exceptions were reserved by the de McMillan et al. v. Hadley et al. fendant Wingate upon the trial, which, as well as the overruling of his motion for a new trial, were properly saved by bills of exception. The evidence gives the following history of the facts on which the parties respectively base their claims to the land in controversy, namely: That Thomas & Sanders purchased said land and took a title bond therefor in their individual names, August 13th, 1873. This was followed by a deed to them, September 18th, 1873. The deed was to Jacob Thomas and Isaac W. Sanders, in the ordinary form, there being nothing to indicate that they purchased as partners. The purchasers had no joint fund, but each paid one-half of the purchase-money from his own means, so far as payment was made at the dates of the purchase and the deed. On February 16th, 1874, Thomas & Sanders borrowed of the plaintiffs $1,000, to make a payment of that amount upon said real estate, and executed their joint note, signed in their individual names therefor; and on November 23d, 1877, they, with their wives, executed the mortgage in question to secure the payment of said note to the plaintiffs. This land was purchased by Thomas & Sanders with a view to lay it out into lots as an addition to the town of Brazil, and they prepared a plat of the same, but the plat was never acknowledged or recorded, and the anticipated speculation proved a failure. This land was the only property ever owned by Thomas & Sanders, either jointly or in common. Wingate claimed under the following judgments and sheriff's sales: Judgment of Austin W. Knight v. Jacob Thomas, rendered May 29th, 1877. Sale of Thomas's undivided half of the land in controversy, by virtue of an execution issued on said judgment, January 11th, 1879, to Robert M. Wingate for $474.61, who received a certificate of purchase from the sheriff. Judgment in favor of Wm. Burrick v. Isaac W. Sanders, rendered June 8th, 1875. The sheriff's certificate of purchase was issued to Charles H. Knight, on sale of Sanders's McMillan et al. v. Hadley et al. undivided half of said land to satisfy this judgment, January 19th, 1878, and the certificate was assigned to Wingate, December 9th, 1878. The bid at the sheriff's sale was $276.33. Judgment of Andrew Wallace et al. v. Sanders, rendered June 8th, 1877. Sheriff's certificate of purchase on same was issued to Joseph M. Wallace, May 25th, 1878, and by him assigned to Wingate, December 9th, 1878. Bid at sheriff's sale, $279. Judgment of Charles S. Andrews v. Sanders, rendered June 27th, 1877. Execution sale to Robert L. Keith, February 22d, 1878, for $405.05. Certificate of purchase assigned to Wingate, May 9th, 1878. A sheriff's deed was duly issued to Wingate on his purchase of Thomas's share of the land on the Austin W. Knight execution. This foreclosure proceeding was commenced March 15th, 1879. On these facts and the finding of the jury that Thomas & Sanders owned the land as partners, and that the note to plaintiffs was their partnership debt, the plaintiffs claim that as such partnership creditors they are entitled to satisfaction out of the partnership property in preference to the judgment creditors of Thomas and Sanders individually. On the other hand, it is claimed for Wingate that he and his assignors were purchasers for value, without any notice of said alleged partnership, and that he consequently had the better title. The law is well settled, as a general rule, in this State, that partnership creditors are entitled to preference in the payment of their claims out of the proceeds of partnership property, and that creditors of the individul partners are entitled only to so much as would be the distributive portion of the debtor partner on a final winding up of the partnership. Matlock v. Matlock, 5 Ind. 403; Kistner v. Sindlinger, 33 Ind. 114; Coffin v. Mitchell, 34 Ind. 293; Smith v. Evans, 37 Ind. 526; Huston v. Neil, 41 Ind. 504; Donellan v. Hardy, 57 Ind. 393; Meridian National Bank v. Brandt, 51 Ind. 56; Conant v. Frary, 49 Ind. 530. VOL. 78.-38 |