Kusler et al. v. Crofoot. The death of appellee, and the appointment of Jacob P. Goodson as his executor, since the filing of this appeal, have been suggested in the record. The 2d, 3d and 4th paragraphs of appellants' joint answer each substantially stated that the notes were executed for and `in consideration of a judgment indebtedness due from said Frank Kusler to appellee, for one thousand dollars and interest from the year 1864; that Kusler delivered them to appellee in October, 1872, in satisfaction of said judgment; that appellee received them, agreeing to enter satisfaction of the judgment; that he did not enter said satisfaction prior to the maturity of the notes and the death of the judgment debtor, which death occurred in May, 1876; that the arrangement remained an unexecuted proposition until the death of the principal, and that his death operated as a withdrawal of the proposition and thereby released all the parties from any liability on the notes. Neither of these paragraphs states facts sufficient to constitute a defence. There was no averment in either of the paragraphs of answer that satisfaction of the judgment had not been entered of record before this suit was brought. A promise is a sufficient consideration to support a promise. The acceptance of a new obligation for a less sum, with additional security, in agreement of satisfaction, operates as a discharge of the old, and satisfaction can, at any time, be enforced. An accepted accord makes satisfaction. To prevent satisfaction, the proposition for accord must be withdrawn before its acceptance. When the appellee accepted the notes in satisfaction of the judgment debt, and agreed to enter satisfaction of the judgment, the judgment was thereby satisfied, and satisfaction of record could have been enforced at any time afterward. 2 Pars. Con. 683; 2 Greenl. Evidence, sections 28 and 31. Counsel for appellants have referred us to the case of Heeg v. Weigand, 33 Ind. 289, and Armstrong v. Cook, 30 Ind. 22. Neither of these cases is applicable to the facts in this case. Kusler et al. v. Crofoot. We see no error in sustaining the demurrer to these paragraphs of answer. The third cause assigned in the joint motion for a new trial was the rejection, in evidence, of the transcript of the judgment in the common pleas court of Jefferson county, Kentucky, which was the basis of the notes sued upon. The blank placita in the beginning of the transcript did not show the date of the rendition of the judgment, and the transcript did not profess to contain a complete copy of the proceedings in the case. There was no error in rejecting the transcript as evidence. Under the separate assignment of errors by Frank Kusler, Sr., and wife, in their motion for a new trial, they complain of the admission in evidence of the mortgage to appellee, before proof had been made of its execution. Their answer was a special and not a general non est factum. They admitted the signing of the mortgage, but denied its delivery. Under this answer, the plaintiff, having possession of the instrument, and its signature being admitted, had a right to introduce the mortgage as evidence and then make his proof as to the delivery, which was done. Pate v. First Nat'l Bank, etc., 63 Ind. 254; Brooks v. Allen, 62 Ind. 401; Carter v. Pomeroy, 30 Ind. 438; State, ex rel., v. Blair, 32 Ind. 313. But if this was error, it was harmless, for the reason that when proof had been made of the delivery of the mortgage, it would then undoubtedly have been admissible as evidence. Counsel for appellant have referred us to a number of authorities to establish the principle, that a delivery is a necessary part of the execution of an instrument. This is too plain a proposition to need the citation of authorities. We find no available error in the introduction of the mortgage as evidence. None of the other assignments of error have been discussed or insisted upon by counsel, and therefore may all be considered as waived. We see no available error in this record. Cole v. Matchett et al. PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment below be, and the same is hereby, in all things affirmed, at the costs of appellants. Opinion filed at May term, 1881. Petition for a rehearing overruled at November term, 1881. No. 8458. BENSON, ADM'R, v. LIGGETT. From the Cass Circuit Court. D. B. McConnell, for appellant. R. Magee and N. O. Ross, for appellee. WOODS, J.-This case is in all essential respects identical with Benson, Adm'r, v. Liggett, ante, p. 452, and on the authority of that case is affirmed, with costs. Affirmed. No. 8674. COLE v. MATCHETT ET AL. From the Kosciusko Circuit Court. C. Clemans and A. C. Clemans, for appellant. Howk, J.-In this case, the facts alleged in the appellant's complaint, and the question for decision, are substantially the same in every material particular, and presented in the same manner, as those which were fully considered and passed upon by this court in the recent case of Ward v. Haggard, 75 Ind. 381. The case cited was approved and followed in Kelsey v. McLaughlin, 76 Ind. 379. The cases cited are decisive of the case now under consideration. The court did not err in sustaining the appellees' demurrer to the appellant's complaint. The judgment is affirmed, at the appellant's costs. Jones et ux. v. McElwee. No. 8323. WILBORN ET AL. v. STOCKER, ADM'R. From the Madison Circuit Court. J. A. Harrison, R. Lake, W. March and E. P. Schlater, for appellants. M. S. Robinson and J. W. Lovett, for appellee. WOODS, J.-The controlling question in this record was decided adversely to the appellants in the recent case of Brannock v. Stocker, 76 Ind. 558. The judgment in this case is therefore affirmed, with costs. No. 8477. JONES ET UX. v. MCELWEE. From the Tipton Circuit Court. J. W. Robinson and D. Waugh, for appellants. J. W. Parks, J. D. McClaren, R. B. Beauchamp, G. H. Gifford, R. Vaile and J. F. Vaile, for appellee. OODS, J.-This case is in all essential respects identical with the case of Jones v. Parks, ante, p. 537. The judgment of the circuit court is therefore affirmed, with costs. INDEX. ABANDONMENT. See TRADE MARK, 3. ACCEPTANCE. See ACCORD AND SATISFACTION, 2, 3; CONTRACT, 7; HIGHWAY, 2. ACCORD AND SATISFACTION. 1. Judgment.-Promissory Note.-Answer.—In an action upon promissory Ib. ACCOUNT. See SPECIAL FINDING; STATUTE OF LIMITATIONS. ACTION TO QUIET TITLE. See MARRIED WOMAN, 2. ADMINISTRATOR. Ib. See DECEDENTS' ESTATES; DESCENT, 4; JUDGMENT, 3; MORTGAGE, 9 to 12; AFFIDAVIT. See CRIMINAL LAW, 8, 9, 10; LIQUOR LAW, 6; NEW TRIAL, 2, 4; RE- PLEVIN, 7, 10. See ATTORNEY, 4; PRINCIPAL AND AGENT; PROMISE. AGREEMENT. See ACCORD AND SATISFACTION, 1; CONTRACT, 3; MORTGAGE, 13; PROM- See EXECUTION; LIQUOR LAW, 6; PRACTICE, 4; VOLUNTARY ASSIGN- MENT, 3. See INJUNCTION, 2; SUPREME COURT, 6 to 8, 14, 15; Unlawful DetEN- TION OF LAND. |