¶1On Petition for Á Rehearing.
¶2A petition for a rehearing is filed in this case, supported by an earnest and able brief, in which it is contended that this court erred in holding there w;as no question of fraudulent conveyance involved.
¶3After another careful examination of the pleadings, we still entertain the belief upon this subject expressed in the opinion heretofore handed down. It is true that in the ;first paragraph of the answer of Milton L. Copeland, as executor, it is shown that the testator, after the execution of the contracts in suit, did not have sufficient property left to pay his debts, and that such debts still remained unpaid, but the answer proceeds upon the distinct and definite theory that such contracts and the will of the testator constituted a testamentary disposition of the property named in the contracts, and that the title to such property did not, therefore, vest in the appellees until the death of the testator, and was, for that reason, part of the assets in the hands of Hie executor, subject to be used in the payment of such debts. In holding that the title to the property mentioned in the contracts vested in those for whose benefit the contracts were made, at the time of their execution, we necessarily held that this answer was bad upon the theory upon which it proceeds. It is well settled that every pleading must proceed upon some single, definite theory, and if bad upon the theory on which it proceeds, it can not be sustained upon some other theory. Platter v. City of Seymour, 86 Ind. 323; Mescall v. Tully, 91 Ind. 96; Western Union Tel. Co. v. Young, 93 Ind. 118; Chicago, etc., R. *227R. Co. v. Bills, 104 Ind. 13; First Nat’l Bank, etc., v. Root, 107 Ind. 224; Pearson v. Pearson, 125 Ind. 341.
¶4As there is no pleading in the record, drawn upon the theory that the property sought to be recovered by the appellees was transferred to them in fraud of the rights of creditors, there is no question of this character involved in the case.
¶5It is also claimed by the appellant Milton L. Copeland, as executor, that this court erred in failing to pass upon the sufficiency of the second paragraph of his answer as an estoppel.
¶6This paragraph avers, substantially, that the appellee Eliza C. Summers, at the death of Milton L. Copeland, Sr., had full knowledge of the contract upon which she sues, and her rights thereunder; that Milton L. Copeland, Jr., the maker of said contract, on the 10th day of February, 1886, tendered to her the full amount due under such contract, and that she, with such knowledge, refused to accept the same, and repudiated the contract, and so continued to refuse the same up to the time of the commencement of this suit; and that the assets of the estate of the said Milton L. Copeland, Sr., are not sufficient to pay the debts and expenses of administration.
¶7We are unable to perceive any element of estoppel in this answer. To make a tender of any avail whatever, it is generally necessary to keep the thing tendered for the use of the party (to whom the tender is made. It certainly is not the law that money tendered to a creditor, if refused, becomes the property of the debtor, and that he may keep it and refuse to pay the debt.
¶8The court did not err in sustaining a demurrer to this answer.
¶9The petition for a rehearing in this caséis overruled.
¶10Filed. June 19, 1894.