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control of the land and building, or of the $409.08.

No exception was taken to the exclusion of evidence by the master, and therefore that question is not before us. Hillier v. Farrell,

185 Mass. 434, 70 N. E. 424. Apart from that, the evidence excluded was immaterial. It is or may be important what trust should have been declared by the grantees, or what trust resulted from the payment of the money. What was the intention of the grantor is of no importance. Even if the deed had been a deed to Jackson and others as trustees, the title to the land and building would not have vested in Nunally and others by force of their appointment as trustees, although the parties in this case seem to have assumed that it would. The issue on which the excluded evidence was offered was, as we have said, on an immaterial point. In either event the legal title is in Jackson and his co-grantees and their heirs, or in the survivors or survivor of them. Decree affirmed.

(192 Mass. 564)

BAILEY V. NEW BEDFORD INSTITUTION FOR SAVINGS.

(Supreme Judicial Court of Massachusetts. Bristol. Oct. 16, 1906.)

GIFTS GIFTS OF DEPOSIT IN BANK.

A donor deposited money in a bank, and at the same time executed a written statement that the deposit was to be paid to him if he lived, and in case of his death to a donee named. The testimony showed that the donor intended that the donce should have the money, but there was no delivery and acceptance. Held, that the property remained the property of the donor and passed on his death to his representatives.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Gifts, §§ 52-57.]

Report from Supreme Judicial Court, Bristol County.

Action by Edward B. C. Bailey against the New Bedford Institution for Savings, in which Walter H. Faunce appears as claimant. The court found for the claimant and reported the case to the Supreme Judicial Court. Judgment on verdict.

This was an action to recover a deposit in a savings bank deposited by Betsie B. Chase and declared to be in trust for Edward B. C. Bailey. It appeared that the testator was desirous that the plaintiff, when he was born, should bear the name of her husband, and his parents assented. Later she said that she had remembered him well, and would see that he had a substantial remembrance from her. She deposited the money in the defendant bank, and at the time made a written statement to the effect that the deposit was to be paid to her if she lived, but in case of her death it was to be payable to Edward B. C. Bailey.

Asa Auger, for plaintiff. F. A. Milliken, for claimant.

KNOWLTON, C. J. The money on deposit in the savings bank was originally the property of the testatrix, and there is no doubt that it remained hers up to the time of her death, unless there was a perfected gift of it to Edward B. C. Bailey in her lifetime. It is clear that the mere deposit of it in her name, as trustee for him, did not deprive her of her ownership and control of it. The statement signed by her at the time of making the deposit implies that it remained her property and subject to her control, although it indicates an intention on her part that so much, if any, of the deposit as she allowed to remain there to the time of her death should become his property. But she could not pass the title to property after her death by such a deposit or by such a statement. Unless it passed in her lifetime, it did not pass at all. To pass property by a gift, there must be a delivery of it to the donee, and acceptance of it by him, or something which is equivalent to such a delivery and acceptance. This has been decided in many cases in which the question has arisen in reference to a deposit in a savings bank in the name of another, or as trustee for another. In Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228-231, 6 Am. Rep. 222, Mr. Justice Wells said: "There must be some act of delivery out of the possession of the donor, for the purpose and with the intent that the title shall thereby pass. If the act of transfer be complete on the part of the donor, subsequent acceptance by the donee before revocation will be sufficient." In Scriven v. North Easton Savings Bank, 166 Mass. 255, 44 N. E. 251, it is held that, in addition to what was written in the bank book, "the testator must have indicated to the plaintiff, in some form of language, that the deposit then belonged to him, although he could not have it until his father's death, and that this was assented to by him." In the opinion in Alger v. North End Savings Bank, 146 Mass. 418-422, 15 N. E. 916, 4 Am. St. Rep. 331, we find similar language. Other cases of like import are Clark v. Clark, 108 Mass. 522; Ide v. Pierce, 134 Mass. 260; Nutt v. Morse, 142 Mass. 1, 8 N. E. 763; Sherman v. New Bedford Five Cents Savings Bank, 138 Mass. 581; Booth v. Bristol County Savings Bank, 162 Mass. 455, 38 N. E. 1120; Welch v. Henshaw, 170 Mass. 409, 49 N. E. 659, 64 Am. St. Rep. 309; Cleveland v. Hampden Savings Bank, 182 Mass. 110, 65 N. E. 27.

*

In the present case, although the testimony tends to show an intention of the testatrix that the boy Edward should have this money after her death, there is no evidence of a delivery and acceptance of a gift of it in her lifetime, or of anything tantamount to a delivery and acceptance. The property, therefore, remained hers so long as she lived, and passed to her executor after her death, Judgment on the verdict.

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An action to quiet title to realty is triable by a jury, and the Supreme Court on appeal is not required to weigh the evidence under Acts 1903, p. 338, c. 193, § 8, requiring the Supreme Court in cases not triable by jury to weigh the evidence and award the proper judgment. 2. QUIETING TITLE - EVIDENCE OF TITLE SUFFICIENCY.

In a suit to quiet title, evidence examined, and held to support a finding of title in plaintiff. 3. SAME-CROSS-COMPLAINT-PARTIES-RELIEF -REFORMATION OF DEED.

Where a defendant, in a suit to quiet title, claimed in a cross-complaint that the land was his under a deed executed by a third person who had by mistake omitted the land in controversy, he was, on making the third person a codefendant with plaintiff to the cross-complaint, and on establishing his claim, entitled to a reformation of the deed, and to a decree quieting his title as against plaintiff.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Quieting Title, § 101.]

4. VENDOR AND PURCHASER-BONA FIDE PURCHASER-NOTICE-CONSTRUCTIVE NOTICE.

Where a purchaser of land, at the time. of his purchase, knew that a third person was in possession of land on one side of a fence, and saw that his grantor and the third person cultivated their lands, respectively, up to the fence, the purchaser had sufficient notice to put him on inquiry as to the third person's right in the land occupied by him.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 540-545.] 5. BOUNDARIES-LOCATION OF LINE BY AD

JACENT LANDOWNERS-EFFECT.

Where owners of adjoining premises establish by agreement a boundary line, and they take and hold possession of their respective lands and improve the same in accordance with such boundary, each owner, in the absence of fraud, is estopped from asserting that the boundary so agreed on is not the true boundary, though the period of time which has elapsed since the line was established and possession taken is less than the statutory period of limitation.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Boundaries, § 248.]

6. QUIETING TITLE-TITLE OF PLAINTIFF -SUFFICIENCY.

In a suit to quiet title, defendant relied on a deed as giving him title, but conceded that the deed as written did not cover the land in controversy, and he did not present a case entitling him to a reformation of the deed so as to include such land. His grantor, before the commencement of the action, conveyed his interest in the land in controversy to plaintiff. Held, that whatever infirmity might have existed in respect to plaintiff's title to the land involved was cured by such conveyance.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Quieting Title, §§ 36, 37.] 7. SAME-EVIDENCE-ADMISSIBILITY.

In a suit to quiet title, it appeared that plaintiff and defendant's grantor had located the boundary between them. A partition fence had been erected and maintained on the boundary for over 10 years. Each cultivated his respective premises to the fence. Held, that evidence relative to the establishment of the line was admissible against defendant, for the agreement between plaintiff and defendant's grantor was binding on them and on persons claiming through them or either of them.

Appeal from Circuit Court, Randolph County; J. W. Macy, Judge.

Action by George Betz against James J. Adams. From a judgment for plaintiff, defendant appeals. Case transferred from Appellate Court under Burns' Ann. St. 1901, § 1337j. Affirmed.

Jno. W. Headington, for appellant. F. S. Caldwell, E. E. McGriff, and J. J. Moran, for appellee.

JORDAN, C. J. Action in the lower court by appellee to quiet title to certain lands situated in Jay county, Ind., described as 15 acres off of the entire west end of the north half of the northeast quarter of section 20, township 24 north, range 15 east, more particularly described by metes and bounds.

The action was originally commenc

ed and tried in the Jay circuit court and resulted in a finding and judgment in favor of appellee. A new trial under the statute was granted to appellant, and on his motion the cause was venued to the Randolph circuit court. Appellant by his answer to the complaint disclaimed any interest to a certain part of the lands described. He filed a cross-complaint, making the appellee the sole defendant thereto, wherein he alleged that on December 2, 1902, he purchased certain real estate of Joseph M. Minch, at that time the owner thereof, in consideration of the sum of $3,000; that Minch and wife executed to him a warranty deed for the following described real estate, situated in Jay County, Ind.: The north half of the northeast quarter of section 20, township 24 north, range 15 east, except 15 acres off of the entire west end of said tract. Appellant further alleged in his cross-complaint that at the time of said conveyance by Minch the latter was the owner of 65 acres of land, more. or less, which land is described in the crosscomplaint by metes and bounds, and it is alleged that this land is the tract which Minch intended to convey to appellant, but by reason of a mutual mistake of the said grantor and grantee, and the scrivener who drafted the deed, the land was described as the north half of the northeast quarter, etc., setting out the description as hereinbefore given; that the deed executed by Minch and wife to appellant by reason of said mistake did not convey to him all the land which he purchased and which was intended by his said grantor to be conveyed to him. It is further averred that appellee, "for the purpose of cheating and defrauding the appellant of a part of his land, procured the said Joseph M. Minch to make and execute to him a quitclaim deed for 15 acres off of the entire west end of the west half of the northeast quarter of section 20, township 24 north, range 15 east, in Jay county, Ind., which casts a cloud upon a part of appellant's title." The prayer of the cross-complaint is that appellant's title to the lands therein

described by metes and bounds be quieted and for all other and proper relief. Upon the issues joined there was a trial by the court and a finding in favor of appellee, and over appellant's motion for a new trial judgment was rendered quieting appellee's title to the lands in controversy.

The only error assigned in this appeal is that the court erred in overruling the motion for a new trial. No errors raising the sufficiency of the complaint are assigned. Those discussed by appellant's counsel are that the finding of the trial court is not sustained by the evidence and is contrary thereto, and that the court erred in admitting certain evidence. Appellee's counsel insists that none of the points presented by appellant should be considered for the reason that he has not complied with rule 22 of this court (55 N. E. v.) in the several respects mentioned, especially in his failure to set forth the evidence as required by said rule. This contention is in the main verified by an examination of appellant's brief, and, were it not for the fact that counsel for appellee in their brief have at least in part supplied the omission of appellant, we would dismiss the appeal without consideration. Appellant requests that this court, under the provisions of section 8 of the act of 1903 (Acts 1903, p. 338, c. 193; section 641h Burns' Ann. St. 1905), weigh the evidence and award judgment in accordance with the weight thereof. An action, however, to quiet title to real estate is triable by a jury. Puterbaugh v. Puterbaugh, 131 Ind. 288, 30 N. E. 519, 15 L. R. A. 341, and cases there cited. Consequently section 8 of the statute in question does not apply to the case at bar, for by its express provision it is limited to cases not triable by a jury as a matter of right.

There is evidence in the record to establish the following facts: The 80 acres of land out of which the tract in controversy was carved was originally owned in fee simple by Jackson F. Betz. He died intestate the owner thereof, leaving appellee, his son, and five other children as his only heirs at law. After his death these children made partition of the 80 acres by executing to each other partition deeds. The part now claimed by appellee was set off to him in this partition, and, as it appears, was intended to embrace 15 acres, excepting 1 acre which was held by Wabash township for school purposes and which was subsequently, and prior to the commencement of this action, purchased by appellee and conveyed to him by the proper township trustee. He was in possession of the premises and was residing thereon with his family at the time Joseph M. Minch became the owner of the remainder of the land through deeds of conveyance executed to him by the brothers and sisters of appellee. When Minch became the owner of the land lying east of the part occupied and claimed by appellee, there was no partition fence or other dividing line be

tween the two tracts, namely, the one purchased by Minch and the one held by appellee. Thereupon Minch and appellee agreed to establish a boundary line and erect a partition fence thereon. Minch recognized that appellee owned 15 acres of the 80-acre tract, 14 of which he had acquired as an heir of his father and which had been set off to him under the partition heretofore mentioned, and the other acre which he had purchased from the township trustee as heretofore stated. The man whom Minch selected to represent him, together with appellee, made measurements of the land and ran a division or boundary line north and south. The parties then by agreement constructed a wire fence on this agreed boundary line, which divided the lands of Minch on the east and those of appellee on the west. Minch acquiesced in this division and was fully satisfied that he had his portion of the 80 acres, and during the 10 years and over in which he owned and held the lands adjacent to those of appellee he recognized and accepted the fence so erected and maintained, and acted upon by the parties, as the true dividing boundary line and never in any manner disputed nor called the same in question. Minch during the entire period of his ownership after the erection of this partition fence cultivated the lands on the east of this fence, and appellee likewise cultivated the land lying west thereof up to the fence. Appellant, long prior to his purchase from Minch, resided in the immediate vicinity of these lands, and at and before his said purchase saw this boundary or division fence and saw and knew that Minch and appellee cultivated the lands on each side thereof to the said fence. On December 2, 1902, Minch and wife sold and conveyed by warranty deed the land situated east of this boundary or partition fence to appellant in consideration of $2,800. This deed described the land as follows: "The north half of the northeast quarter of section 20, township 24 north, range 15 east, except fifteen acres off of the entire west end thereof," stating that the land therein conveyed was 65 acres, "more or less." It was further stipulated in this deed that the land was conveyed to appellant by Minch subject to a mortgage of $3,000 executed to the Dickson Lumber Company, which mortgage indebtedness appellant in the deed assumed and agreed to pay.

During the negotiations for the sale and purchase of the land between Minch and appellant, and prior to the execution of the deed thereto, a paper containing a description of the land which Minch proposed to sell and convey to appellant was placed in the hands of the latter. The description therein contained and set out excepted from the conveyance the following real estate: "A strip or parcel of land containing fifteen acres off of the entire west end of said tract above described, now owned by George Betz." After the sale and conveyance of the land by

Minch to appellant, the latter discovered through a survey which he procured to be made that, if the tract conveyed to him by Minch covered or embraced 65 acres, it would be necessary to change the boundary line so as to extend it two rods west of the old boundary fence agreed upon and erected as hereinbefore stated by Minch and appellee. The latter about the same time discovered that he had not fully acquired title to the 15 acres which he claimed, or to all of the land lying west of the said boundary or partition fence; or, in other words, he discovered that there was a strip of land two rods wide extending along the entire width of the 80-acre tract at the east end of the supposed 15 acres which was not covered by the partition deeds executed to him by his brothers and sisters. He immediately procured from Minch, for a nominal consideration, a quitclaim deed covering and embracing this strip, and also procured a warranty deed from his brothers and sisters conveying this trip to him. This latter deed, as the evidence discloses, was made for the purpose of correcting the former partition deed. Thereafter Thereafter appellant continued to claim title to this strip, insisting that there was a mistake in the description contained in the deed of Minch and wife to him, his insistence being that the land should have been described in the Minch deed by metes and bounds; that Minch's grantors had conveyed more land to Minch than the latter had conveyed to him. Appellant thereupon, over the objection of appellee, began to build a division fence on the land claimed by appellee, erecting it two rods west of the old boundary fence. Appellee then instituted this action.

A consideration of the evidence in this case thoroughly satisfies us that the judgment of the lower court is a correct result. The facts established thereby clearly disclose that appellee is the legal owner of the land in dispute and is entitled to have his title thereto quieted and set at rest as against the claims made by appellant. Counsel of the latter, however, insist that the evidence shows that Minch by his conveyance to appellant intended to sell and convey all of the land which he owned and held in and to the 80-acre tract by virtue of the conveyance to him by the children and heirs of Jackson F. Betz, to which we have herein referred; further contending that it was the intention of both appellant and Minch to have. such a description in the deed executed by the latter to the former as would embrace or cover all the lands so owned by Minch, that the exception of 15 acres off the entire west end of the tract conveyed was a mutual mistake, and that therefore appellant, under his crosscomplaint, is entitled to have said deed reformed so as to comply with the intention of the parties.

It is true that if the appellant had made Minch, his grantor, a codefendant with ap

pellee to a cross-complaint in this action, he might thereunder, on a sufficient showing, have secured a reformation of the deed of conveyance to him from Minch so as to cover all of the real estate intended by the parties at the time of the sale to be conveyed, and then had his title thereto quieted as against appellee. Smith v. Kyler, 74 Ind. 575; Hunter v. McCoy, 14 Ind. 528; section 280, Burns' Ann. St. 1901. The trial court, however, appears to have found adversely to appellant on all the issues which he tendered by his cross-complaint, and the evidence fully supports this finding. Minch on the trial testified that he only intended to convey to appellant the land which he owned lying east of the boundary fence between him and appellee. Other evidence in the case fully corroborates his testimony in this respect.

As heretofore stated in our summary of the evidence, it appears that some time before the execution of the deed from Minch to appellant the latter was given a paper containing a description of the real estate which Minch intended to convey. The description therein contained excepted a strip or parcel of land containing 15 acres owned by George Betz (being the appellee herein) off of the entire west end of the tract to be sold and conveyed. Appellant, when he purchased the land, saw the boundary or partition fence in question and knew that appellee was in possession of the land west thereof, and saw that Minch and he cultivated their lands up to the fence on their respective sides. These facts were sufficient notice to appellant to put him upon inquiry as to appellee's claim or right in the land west of the fence. Kinsey v. Satterthwaite, SS Ind. 342; Barnes v. Union School Township, 91 Ind. 301. As is shown, a definite piece of land, 15 acres, was excepted by Minch in his deed to appellant from that portion of the 80 acres which he conveyed. The part conveyed was stated to be 65 acres, "more or less." The authorities, as a general rule, affirm that, where it appears in a deed of conveyance of land by the qualifying words "more or less" the statement of the number of acres in the deed is a mere matter of description, and not of the essence of the contract, the purchaser, in the absence of fraud, takes the risk as to the quantity of acres conveyed to him. Tyler v. Anderson, 106 Ind. 185, 6 N. E. 600; Moore v. Harmon, 142 Ind. 555, 41 N. E. 599.

Appellant contends that the boundary line established under the agreement between Minch and appellee could not alone operate to give any title to lands west of the said line with which appellee was not invested at the time the line was so established. It is disclosed, however, that, at the time the boundary line in question was established by Minch and appellee, there had been no definite or certain division line located between their respective tracts. It appears

from the evidence that each of these parties in good faith located and established what they believed to be a true division line between their adjoining tracts of land. This line, after it was located, was, for at least a period of 10 years prior to the sale by Minch to appellant, recognized and accepted by each of the owners as the true dividing line between them. The line was, under the circumstances, what may be termed a practical location of the boundary line, and certainly, if not conclusive in respect to the boundaries of the respective premises, it afforded strong evidence as against either Minch or appellee, and all persons claiming through or under them, that it was the true boundary or dividing line of the lands in question. 5 Cyc. pp. 930-935. As a general rule, it is affirmed by the authorities that where owners of adjoining premises establish by agreement a boundary or dividing line between their lands, take and hold possession of their respective tracts, and improve the same in accordance with such division, each party, in the absence of fraud, will thereafter be estopped from asserting that the line so agreed upon and established is not the true boundary line, although the period of time which has elapsed since such line was established and possession taken is less than the statutory period of limitation. 1 Cyc. p. 1036; 5 Cyc. supra; St. Bede College v. Weber, 168 Ill. 324, 48 N. E. 165; Tate v. Foshee, 117 Ind. 322, 20 N. E. 241; Pitcher v. Dove, 99 Ind. 175, and authorities there cited; Meyers v. Johnson, 15 Ind. 261. The general rule recognized by the authorities is that a boundary line located under such circumstances, in the absence of fraud, becomes binding on the owners establishing it, not on the principle that the title to the lands can be passed by parol, but for the reason that such owners have agreed permanently upon the limits of their respective premises and have acted in respect to such line, and have been controlled thereby, and therefore will not thereafter be permitted to repudiate their acts. But appellee need not and does not base his right to the strip of land in dispute upon the location of the boundary line in question, for appellant virtually concedes that the deed of conveyance from Minch to him did not cover the strip of ground in controversy, and as appellant under the evidence has not presented a case entitling him to have the Minch deed reformed, and as Minch and the brothers and sisters of appellee some time before the commencement of this action conveyed to him all of the interest and title which they or either of them had to the land herein in controversy, therefore whatever infirmity or deficiency which may have previously existed in respect to appellee's title to the strip of ground involved has been cured by said conveyances.

Appellant complains of the action of the trial court in permitting parol evidence to be introduced relative to the establishment of

the old boundary line by Minch and appellee. It is contended that what was done by these parties in establishing said line was done in the absence of appellant and without his knowledge, and tuat no record was made to notify subsequent purchasers of the location of this line. But, as heretofore stated, after the location of the line by Minch and appellee, a partition fence was erected and maintained thereon by said parties for a period of over 10 years; each cultivating his respective premises to this fence. This was the condition of affairs at the time appellant made his purchase. These facts, as previously asserted, were sufficient notice. to appellant. A valid agreement between owners of lands locating a boundary line between them is binding upon each and upon all persons claiming under or through them, or either of them. 5 Cyc. p. 933. There was no error in admitting the evidence in question. Pitcher v. Dover, supra.

Some minor rulings of the court are called in question, but these, if they be conceded to be erroneous, were harmless and could have exerted no influence over the decisions of the trial court. Judgment affirmed.

(167 Ind. 548)

POLK v. JOHNSON. (No. 20,896.)1 (Supreme Court of Indiana. Oct. 3, 1906.) 1. APPEAL-PARTIES-INTEREST-ORDER FIXING RECEIVER'S COMPENSATION.

Where a receiver was appointed for the property of a debtor, the latter had a sufficient interest in the subject-matter of the litigation to entitle him to appeal from an order fixing the compensation to be paid to the receiver. 2. SAME-NECESSARY PARTIES.

Where, after the resignation of a receiver, a judgment was rendered directing the receiver's successor to pay him a specified sum for his services, from which judgment a vacation appeal was taken by the debtor, the succeeding receiver was a necessary party to such appeal, under a statute requiring all persons named in and affected by the judgment from which a vacation appeal is taken to be made parties.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1814-1819.] Appeal from Circuit Court, Johnson County; Vinson Carter, Special Judge.

Application by Grafton Johnson, as receiver, etc., for an allowance for his services, to which James T. Polk filed objections. From an order directing payment to petitioner of $9,500, and sustaining the exceptions in part, objector appeals. Dismissed.

For opinions in Appellate Court, see 76 N. E. 634, and 77 N. E. 1139.

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