Wishard v. Medaris. As these children were placed in the institution on the 6th day of November, 1868, prior to the enactment of the amendatory law of 1869, we think we must consider the case as governed by the law of 1867 exclusively. We do not wish to be understood as deciding whether the fifth section of the act of 1869 is or is not valid as an amendment of the law with reference to guardians, or what would be the effect thereof if valid. The sixth section of the act touching the relation of guardian and ward, 2 G. & H. 566, provides, that "every guardian so appointed" (that is as required by that act) "shall have the custody and tuition of such minor, and the management of such minor's estate during minority, unless sooner removed or discharged from such trust: provided, that the father of such minor, or if there be no father, the mother, if suitable persons respectively, shall have the custody of the person, and the control of the education of such minor." We think we must presume, in the absence of any showing to the contrary, that the mother was, in this case, a suitable person to have the custody of the persons of her children, &c. What, then, was the legal effect of the instrument of writing which she executed, and which is copied in the return? The statement in the writing, that the mother surrendered her children to the "care and guardianship of the trustees," did not have the effect to make the trustees the legal guardians of the children for two reasons: first, the mother was not authorized thus to appoint a guardian for them; and second, the trustees were not authorized to receive such appointment, or, in their corporate capacity, to act as guardians. If the instrument in question is to be regarded in the character of a contract between the mother and the trustees, and if it be conceded that she might alienate her right to the custody and to control the education of her children, the question arises, for how long a time did she agree to part with such custody, &c.? We think we cannot regard it anything more than a tem Brewer v. Parker and Another. porary arrangement, which either party might terminate at any time. The trustees were under no obligation by law, or by the agreement, to retain the custody of the children for any definite time; nor was the mother under any obligation to allow them to remain for any fixed period of time. See The State, ex rel. Sharpe, v. Banks, 25 Ind. 495, and cases there cited. The judgment of the circuit court is affirmed, with costs. M. L. Bundy, for appellant. C. W. Smith, Fr., M. M. Ray, and F. A. Holman, for appellee. BREWER V. PARKER and Another. VENDOR AND PURCHASER.—Incumbrances.—Promissory Note.—Assignment.— Consideration.-Estoppel.-Where, upon the sale and conveyance by warranty deed of real estate, it is agreed by the grantor, the grantee, the surety upon a note not payable in bank, given by said grantee and said surety to said grantor in consideration of said conveyance, and the holder of an outstanding mortgage on said real estate that said note shall be asssigned by the payee to said mortgage creditor, who shall thereupon and in consideration thereof enter satisfaction of said mortgage, and said assignment is made and satisfaction is entered according to said agreement, it will not constitute a good defense to a suit on said note by said assignee against said maker and surety, that the maker, in order to prevent the sale of said real estate on execution, has been compelled to pay off a judgment for a greater sum than the amount of said note, existing, without his knowledge, at the date of said conveyance, and constituting a lien on said real estate junior to said mortgage, and that the grantor is insolvent and a non-resident of the State. APPEAL from the Morgan Circuit Court. PETTIT, C. J.-Suit by the appellant against the appellees on a promissory note (not payable in bank) payable to one Cord, and by him assigned to William Brewer, and by him. to Henry Brewer, the plaintiff below and appellant here. The defendants by answer admitted that they executed the Brewer v. Parker and Another. note sued on, but alleged that Parker executed the note as principal, and that the other defendant, John Brown, executed it as surety of Parker; that the note was given in consideration of the sale and conveyance by warranty deed, covenanting against all incumbrances, by said Cord to said Parker, of a certain piece of real estate (the deed being made a part of the answer); that at the time of making said deed there was an incumbrance upon the real estate, unknown to the defendant Parker, of a judgment against Cord, in the circuit court of the county in which the real estate was situate, for a greater sum than the note; that to prevent the sale on execution of said real estate, the said Parker was compelled to and did pay off and satisfy said judgment; that Cord was not a resident of the State, and was wholly insolvent. The plaintiff replied, that at and before the date of the note, and before the sale of the land, there was an outstanding mortgage given by said Cord to William Brewer, to secure the payment of four hundred dollars for purchase-money for said real estate; that the mortgage was, before the date of the note sued on, for a valuable consideration, assigned by said William Brewer to the plaintiff; that the plaintiff was, before the sale of the land by Cord to defendant Parker, the owner of said mortgage, which was a lien on the land prior to the judgment lien mentioned in the answer; that before the sale of said land by Cord to Parker, it was agreed by and between Parker, Cord, and plaintiff, and the defendant Brown, that in consideration of the plaintiff's releasing his said mortgage lien upon the land, the said Cord might and would transfer the note sued on to the plaintiff; that pursuant to said agreement, and with the knowledge, procurement, consent, and direction of Parker, the plaintiff released his mortgage lien, and the said Cord transferred the note sued on to the plaintiff, in consideration of the plaintiff's having released his mortgage lien; and that Parker refused. to purchase the land unless the plaintiff would release his Ireland. Montgomery and Another. mortgage in consideration of the assignment to him by Cord of the note sued on. The defendants demurred to the reply, because it did not contain sufficient facts, &c., and the court sustained the demurrer, which ruling was excepted to. The only question before us in this case is the correctness of this ruling on the demurrer. We think that this was so clearly a good reply that we must reverse the judgment. We cannot conceive how a reply could more thoroughly or perfectly estop the defendants from setting up the defense stated in their answer. Williams v. Rank, 1 Ind. 230; Morrison v. Weaver, 16 Ind. 344. The judgment is reversed, at the costs of the appellee; cause remanded, &c. S. Claypool and F. P. A. Phelps, for appellant. 34 174 127 258 34 174 149 156 34 174 167 275 IRELAND V. MONTGOMERY and Another. CONTRACT.-Separate Instruments of Different Dates.-Suit on a bond condi. tioned in the alternative, that the principal obligor should, on a certain day, pay the plaintiff a certain sum, or in lieu thereof, at his own election, secure to the plaintiff on that day a clear title and the possession of certain real estate. Answer, setting up a written agreement alleged to have been made at the time of the making of the contract mentioned in the complaint and as a part thereof, but bearing a different date, whereby the plaintiff agreed that he would, on, &c., being the day fixed in said bond for the performance of the condition thereof, convey a certain farm to said principal obligor, the answer alleging that the plaintiff had failed and refused to so convey said farm, &c. Held, that upon demurrer to said answer, the instrument therein set out should, notwithstanding the expressed date thereof, be regarded as having been executed at the same time that said bond was executed, and be considered as a part of the same contract. Held, also, that the failure of the plaintiff alleged in the answer constituted a bar to the suit on the bond. SAME.—Alternative Modes of Performance.—Under a bond so conditioned, the right of the obligor to elect between the alternative modes of performance Ireland v. Montgomery and Another. ceases after the date fixed for performance by the bond. No mere notice given by the obligor to the obligee, of the mode in which the former elects to perform, is conclusive on the latter, and no demand by the obligee for a deed is necessary to entitle him to recover the money. PLEADING.-Tender.-An answer, pleaded in form in bar of an action generally, setting up a tender alleged to have been made after the filing of the plaintiff's complaint, without expressly showing that the action had been commenced, though asking judgment for costs only from the time of making the tender, is bad on demurrer. APPEAL from the Gibson Common Pleas. DOWNEY, J.-Ireland sued Montgomery and McQuade on a writing obligatory, dated January 3d, 1867, in the penalty of three thousand dollars, which recited that Ireland had sold to Montgomery his farm, for which Montgomery had agreed to pay one hundred dollars cash, a promissory note for two hundred and sixty dollars, due December 25th, 1868, with interest, and to elect between paying to Ireland on the 5th day of October, 1868, twenty-two hundred dollars, or securing to him a clear title and possession, on that day, to the north half of inlot thirteen, in the original plat of the town of Owensville, in Gibson county, the sheriff's certificate of sale of which he had assigned to Ireland on the day the contract was made; or, if said property should be redeemed before October 5th, then Montgomery need only pay to Ireland the said note, on which a credit of one hundred dollars should be given, and might retain all title and interest in said land, which would otherwise have remained in said Ireland; and was conditioned that if Montgomery should comply with and fulfill said agreement, then this obligation should be void, otherwise in full force. It is then alleged, that though it was agreed that the sheriff's certificate should be assigned by Montgomery to Ireland, yet, by mistake, it was not done, but remained in possession of Montgomery; that the real estate was not redeemed before or on October 5th, 1868; that the plaintiff had performed all the stipulations in the contract on his part to be performed, and was ready and willing, on the said 5th day of October, 1868, to receive from Montgomery the said sum of twenty-two hundred dollars, |