
    Lewis D. Tolls and Wife v. Euphemia Soward.
    Pleadings — Answer and Cross-petition — Joint Obligations — Demurrer.
    While the answer and cross-petition alleges that from the death of Richard Soward, Sr., till September, 1867, the plaintiff, Euphemia Soward, and her two sons, Richard and John Soward, had the possession and use of the share of the defendant Anne, in the real estate of her father, and that the use of it was worth one hundred and twenty dollars per annum, it fails to allege either a joint renting or occupancy, or a joint obligation to pay the rent. The allegations of the cross-petition may all be true and yet the appellee may have had the use of some inconsiderable portion of the land, separate from her sons.'
    APPEAL PROM FLEMING CIRCUIT COURT.
    January 29, 1872.
   Opinion by

Judge Hardin:

The positive testimony of John W. Soward, that the money and property alleged to have been paid on the judgment against the appellee, was in fact paid and accepted, is not, in our opinion, overcome by the other proof of the same facts and circumstances, conducing to the conclusion that the money and property were given or advanced by the appellee, to Mrs. Tolls, and not intended to go as a payment for this amount on the judgment; and this view is strengthened and fortified by the fact that it is neither alleged nor proved that the circumstances of the appellee were such as to enable her to give or advance the money and property to Mrs. Tolls, and still stands bound to pay the judgment against her. It is insisted, however, that although the demurrer of Richard and John W. Soward was sustained to the cross-petition of Tolls and wife against them, and their mother, as the latter did not answer, it ought to have been taken for confessed against her, and the claim for the rent therein set up applied to the ex-tinguishment of the matters presented in the petition as payments on the judgments. But there are two fatal objections to this. First, that while the answer and cross-petition alleges that from the death- of Richard Soward, Sr., till Sept., 1867, “the plaintiff, Euphemia Soward, and her sons, Richard and John Soward, had the possession and use of the share of the defendant Anne in the real estate of her father” and that the use of it was worth one hundred and twenty dollars per annum, it fails to allege either a joint renting or occupancy, or a joint obligation to pay the rent; and the allegation of the cross-petition may all be true and yet the appellee may, at least during each year, have had the use of some inconsiderable portion of the land, while her sons separately used the residue under a distinct and separate liability or undertaking for the payment of rent, and second, that the money and property, being set up and shown to have been considered as payments on the judgment, and not as mere set-offs against the claims for rent, if confessed to its fullest extent, however available in an original action, could not be used to defeat the defense of payment.

H. Taylor, for appellant.

Andrews & Fister, for appellee.

Therefore the judgment is affirmed.  