control of the land and building, or of the KNOWLTON, C. J. The money on de$409.08.

posit in the savings bank was originally the No exception was taken to the exclusion of

property of the testatrix, and there is no evidence by the master, and therefore that doubt that it remained hers up to the time of question is not before us. Hillier v. Farrell, her death, unless there was a perfected gift 185 Mass. 434, 70 N. E. 424. Apart from of it to Edward B. C. Bailey in her lifetime. that, the evidence excluded was immaterial. It is clear that the mere deposit of it in her It is or may be important what trust should name, as trustee for him, did not deprive her have been declared by the grantees, or what of her ownership and control of it. The trust resulted from the payment of the mon- statement signed by her at the time of makey. What was the intention of the grantoring the deposit implies that it remained her is of no importance. Even if the deed had

property and subject to her control, although been a deed to Jackson and others as trus- it indicates an intention on her part that so tees, the title to the land and building would much, if any, of the deposit as she allowed not have vested in Nunally and others by to remain there to the time of her death force of their appointment as trustees, al- should become his property. But she could though the parties in this case seem to have not pass the title to property after her death assumed that it would. The issue on which

by such a deposit or by such a statement. the excluded evidence was offered was, as Unless it passed in her lifetime, it did not we have said, on an immaterial point. In

pass at all. To pass property by a gift, either event the legal title is in Jackson and there must be a delivery of it to the donee, his co-grantees and their heirs, or in the sur

and acceptance of it by him, or something vivors or survivor of them.

which is equivalent to such a delivery and Decree affirmed.

acceptance. This has been decided in many

. cases in which the question has arisen in

reference to a deposit in a savings bank in (192 Mass. 564)

the name of another, or as trustee for BAILEY V. NEW BEDFORD INSTITUTION

another. In Brabrook v. Boston Five Cents FOR SAVINGS.

Savings Bank, 104 Mass. 228-231, 6 Am. Rep. (Supreme Judicial Court of Massachusetts. 222, Mr. Justice Wells said: “There must Bristol. Oct. 16, 1906.)

be some act of delivery out of the possession GIFTS–GIFTS OF DEPOSIT IN BANK.

of the donor, for the purpose and with the A donor deposited money in a bank, and at intent that the title shall thereby pass. the same time executed a written statement that the deposit was to be paid to him if he lived, and

* If the act of transfer be complete in case of his death to a donee named. The on the part of the donor, subsequent acceptestimony showed that the donor intended that tance by the donee before revocation will be the donce should have the money, but there was no delivery and acceptance. Held, that the prop

sufficient.” In Scriven v. North Easton Saverty remained the property of the donor and

ings Bank, 166 Mass. 255, 44 N. E. 251, it is passed on his death to his representatives. held that, in addition to what was written

[Ed. Note. For cases in point, see vol. 24, in the bank book, "the testator must have Cent. Dig. Gifts, SS 52-57.]

indicated to the plaintiff, in some form of Report from Supreme Judicial Court, Bris

language, that the deposit then belonged to tol County.

him, although he could not have it until his Action by Edward B. C. Bailey against

father's death, and that this was assented to the New Bedford Institution for Savings, in

by him.” In the opinion in Alger v. North which Walter H. Faunce appears as claimant,

End Savings Bank, 146 Mass. 418-422, 15 N. The court found for the claimant and report

E. 916, 4 Am. St. Rep. 331, we find similar ed the case to the Supreme Judicial Court.

language. Other cases of like import are Judgment on verdict.

Clark v. Clark, 108 Mass. 522; Ide v. Pierce,

134 Mass. 260; Vutt v. Morse, 142 Mass. 1, This was an action to recover a deposit in

8 N. E. 763; Sherman v. New Bedford Five a savings bank deposited by Betsie B. Chase

Cents Savings Bank, 138 Mass. 581; Booth and declared to be in trust for Edward B. C.

V. Bristol County Savings Bank, 162 Jass. Bailey. It appeared that the testator was

455, 38 N. E. 1120; Welch v. Henshaw, 170 desirous that the plaintiff, when he was

Mass. 409, 49 N. E. 659, 64 Am. St. Rep. born, should bear the name of her husband,

309; Cleveland v. Hampden Savings Bank, and his parents assented. Later she said

182 Mass. 110, 63 N. E. 27. that she had remembered him well, and

In the present case, although the testimony would see that he had a substantial remembrance from her. She deposited the money

tends to show an intention of the testatrix

that the boy Edward should have this money in the defendant bank, and at the time made

after her death, there is no evidence of a a written statement to the effect that the

delivery and acceptance of a gift of it in her deposit was to be paid to her if she lived,

lifetime, or of anything tantamount to a debut in case of her death it was to be payable to Edward B. C. Bailey.

livery and acceptance. The property, there

fore, remained hers so long as she lived, and Asa Auger, for plaintiff. F. A. Milliken, passed to her executor after her death, for claimant

Judgment on the verdict.

(167 Ind. 161)

Appeal from Circuit Court, Randolph Coun. ADAMS v. BETZ. (No. 20,482.)

ty; J. W. Macy, Judge.

Action by George Betz against James J. (Supreme Court of Indiana. Oct. 4, 1906.)

Adams. From a judgment for plaintiff, de1. APPEAL-VERDICT - CONCLUSIVENESS-RE

fendant appeals. Case transferred from ApVIEW-STATUTES. An action to quiet title to realty is triable

pellate Court under Burns' Ann. St. 1901, 8 by a jury, and the Supreme Court on appeal is 1337j. Affirmed. not required to weigh the evidence under Acts 1903, p. 338, c. 193, § 8, requiring the Supreme

Jno. W. Headington, for appellant. F. S. Court in cases not triable by jury to weigh the Caldwell, E. E. McGriff, and J. J. Moran, for evidence and award the proper judgment. appellee. 2. QUIETING TITLE – EVIDENCE OF TITLE SUFFICIENCY.

In a suit to quiet title, evidence examined, JORDAN, C. J. Action in the lower court and held to support a finding of title in plaintiff. by appellee to quiet title to certain lands 3. SAME-CROSS-COMPLAINT-PARTIES-RELIEF

situated in Jay county, Ind., described as -REFORMATION OF DEED.

15 acres off of the entire west end of the Where a defendant, in a suit to quiet title, claimed in a cross-complaint that the land was

north half of the northeast quarter of sechis under a deed executed by a third person tion 20, township 24 north, range 15 east, who had by mistake omitted the land in con

more particularly described by metes and troversy, he was, on making the third person a

bounds. codefendant with plaintiff to the cross-complaint,

The action was originally commencand on establishing his claim, entitled to a ref- ed and tried in the Jay circuit court and reormation of the deed, and to a decree quieting sulted in a finding and judgment in favor of his title as against plaintiff.

appellee. A new trial under the statute was [Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Quieting Title, $ 101.]

granted to appellant, and on his motion the 4. VENDOR AND PURCIIASER-BONA FIDE PUR

cause was venued to the Randolph circuit CIIASER-NOTICE-CONSTRUCTIVE NOTICE. court. Appellant by his answer to the com

Where a purchaser of land, at the time plaint disclaimed any interest to a certain of his purchase, knew that a third person was

part of the lands described. He

He filed

filed a in possession of land on one side of a fence, and saw that his grantor and the third person

cross-complaint, making the appellee the sole cultivated their lands, respectively, up to the defendant thereto, wherein he alleged that fence, the purchaser had sufficient notice to on December 2, 1902, he purchased certain put him on inquiry as to the third person's right in the land occupied by him.

real estate of Joseph M. Minch, at that time [Ed. Note. For cases_in point, see vol. 48,

the owner thereof, in consideration of the Cent. Dig. Vendor and Purchaser, 88 540-545.) sum of $3,000; that Minch and wife executed 5. BOUNDARIES LOCATION OF LINE BY AD

to him a warranty deed for the following deJACENT LANDOWNERS-EFFECT.

scribed real estate, situated in Jay CounWhere owners of adjoining premises es- ty, Ind.: The north half of the northeast tablish by agreement a boundary line, and they take and hold possession of their respective quarter of section 20, township 24 north, lands and improve the same in accordance with range 15 east, except 15 acres off of the ensuch boundary, each owner, in the absence of tire west end of said tract. Appellant furfraud, is estopped from asserting that the boun

ther alleged in his cross-complaint that at dary so agreed on is not the true boundary, though the period of time which has elapsed

the time of said conveyance by Minch the latsince the line was established and possession ter was the owner of 65 acres of land, more. taken is less than the statutory period of lim

or less, which land is described in the crossitation.

complaint by metes and bounds, and it is [Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Boundaries, $ 248.]

alleged that this land is the tract which Minch 6. QUIETING

intended to convey to appellant, but by reaTITLE-TITLE OF PLAINTIFF -SUFFICIENCY.

son of a mutual mistake of the said grantor In a suit to quiet title, defendant relied and grantee, and the scrivener who drafted on a deed as giving him title, but conceded

the deed, the land was described as the that the deed as written did not cover the land in controversy, and he did not present a case

north half of the northeast quarter, etc., entitling him to a reformation of the deed so setting out the description as hereinbefore as to include such land. His grantor, before given; that the deed executed by Minch and the commencement of the action, conveyed his interest in the land in controversy to plaintiff.

wife to appellant by reason of said mistake Held, that whatever infirmity might have ex- did not convey to him all the land which he isted in respect to plaintiff's title to the land purchased and which was intended by his involved was cured by such conveyance.

said grantor to be conveyed to him. It is [Ed. Note.-For cases in point. see vol. 41,

further averred that appellee, "for the purCent. Dig. Quieting Title, $$ 36, 37.] 7. SAME-EVIDENCE-ADMISSIBILITY.

pose of cheating and defrauding the appelIn a suit to quiet title, it appeared that

lant of a part of his land, procured the said plaintiff and defendant's grantor had located Joseph M. Minch to make and execute to him the boundary between them. A partition fence a quitclaim deed for 15 acres off of the entire had been erected and maintained on the boun

west end of the west half of the northeast dary for over 10 years. Each cultivated his respective premises to the fence. Held, that evi- quarter of section 20, township 24 north, dence relative to the establishment of the range 15 east, in Jay county, Ind., which line was admissible against defendant, for the casts a cloud upon a part of appellant's agreeinent between plaintiff and defendant's grantor was binding on them and on persons

title.” The prayer of the cross-complaint claiming through them or either of them. is that appellant's title to the lands therein

is |

from the evidence that each of these parties the old boundary line by Minch and apin good faith located and established what pellee. It is contended that what was done they believed to be a true division line be- by these parties in establishing said line was tween their adjoining tracts of land. This done in the absence of appellant and without line, after it was located, was, for at least his knowledge, and that no record was made a period of 10 years prior to the sale by to notify subsequent purchasers of the locaMinch to appellant, recognized and accepted tion of this line. But, as heretofore stated, by each of the owners as the true dividing after the location of the line by Minch and line between them. The line was, under the appellee, a partition fence was erected and circumstances, what may be termed a prac- maintained thereon by said parties for a tical location of the boundary line, and period of over 10 years; each cultivating certainly, if not conclusive in respect to the his respective premises to this fence. This boundaries of the respective premises, it was the condition of affairs at the time apafforded strong evidence as against either pellant made his purchase. These facts, as Minch or appellee, and all persons claiming previously asserted, were sufficient notice through or under them, that it was the true to appellant. A valid agreement between bo'indary or dividing line of the lands in owners of lands locating a boundary line bequestion. 5 Cyc. pp. 930-935. As a general tween them is binding upon each and upon rule, it is affirmed by the authorities that all persons claiming under or through them, where owners of adjoining premises establish or either of them. 5 Cyc. p. 933. There was by agreement a boundary or dividing line be- no error in admitting the evidence in questween their lands, take and hold possession tion. Pitcher v. Dover, supra. of their respective tracts, and improve the Some minor rulings of the court are called same in accordance with such division, each in question, but these, if they be conceded party, in the absence of fraud, will there

to be erroneous, were harmless and could after be estopped from asserting that the have exerted no influence over the decisions line so agreed upon and established is not the of the trial court. true boundary line, although the period of Judgment affirmed. time which has elapsed since such line was established and possession taken is less than the statutory period of limitation. 1 Cyc. p.

(167 Ind. 548) 1036; 5 Cyc. supra; St. Bede College v. Web- POLK V. JOHNSON. (No. 20,896.)1 er, 168 Ill. 324, 48 N. E. 165; Tate v. Foshee, (Supreme Court of Indiana. Oct. 3, 1906.) 117 Ind. 322, 20 N. E. 241; Pitcher v. Dove, 1. APPEAL-PARTIES–INTEREST-ORDER FIX99 Ind. 175, and authorities there cited; Mey

ING RECEIVER'S COMPENSATION. ers v. Johnson, 15 Ind. 261. The general rule

Where a receiver was appointed for the

property of a debtor, the latter had a sufficient recognized by the a'thorities is that a boun

interest in the subject-matter of the litigation dary line located under such circumstances, to entitle him to appeal from an order fixing in the absence of fraud, becomes binding on

the compensation to be paid to the receiver. the owners establishing it, not on the prin

2. SAME-NECESSARY PARTIES.

Where, after the resignation of a receiver, ciple that the title to the lands can be passed

a judgment was rendered directing the receiver's by parol, but for the reason that such own- successor to pay him a specified sum for his ers have agreed permanently upon the limits

services, from which judgment a vacation apof their respective premises and have acted

peal was taken by the debtor, the succeeding

receiver was a necessary party to such appeal, in respect to such line, and have been con

under a statute requiring all persons named in trolled thereby, and therefore will not there- and affected by the judgment from which a vaafter be permitted to repudiate their acts. But

cation appeal is taken to be made parties. appellee need not and does not base his right

[Ed. Note.-For cases in point, see vol. 2,

Cent. Dig. Appeal and Error, $$ 1814-1819.] to the strip of land in dispute upon the location of the boundary line in question, for ap

Appeal from Circuit Court, Johnson Counpellant virtually concedes that the deed of ty; Vinson Carter, Special Judge. conveyance from Minch to him did not cover the Application by Grafton Johnson, as receiv. strip of gro'ind in controversy, and as ap

er, etc., for an allowance for his services, pellant under the evidence has not presented

to which James T. Polk filed objections. a case entitling him to have the Minch deed From an order directing payment to petitionreformed, and as Minch and the brothers er of $9,500, and sustaining the exceptions and sisters of appellee some time before the in part, objector appeals. Dismissed. commencement of this action conveyed to For opinions in Appellate Court, see 76 him all of the interest and title which they N. E. 634, and 77 N. E. 1139. or either of them had to the land herein

Chas. F. Coffin, L. Ert Slack, L. J. Hackney, in controversy, therefore whatever infirmity or

and Wilson & Townley, for appellant. deficiency which may have previously existed

A. McAlpin and Miller, Shirley & Miller, for in respect to appellee's title to the strip of

appellee. ground involved has been cured by said conveyances.

MONTGOMERY, J. Appellee filed his resAppellant complains of the action of the ignation and report as receiver of appeltrial court in permitting parol evidence to be lant's property, in which he asked an allowintroduced relative to the establishment of ance of $20,000 for services, to which appel

* Rehearing denied, 79 N. E. 191.

E.