In pursuance of a contract, a deed was executed to be delivered on a certain date, on payment of a note placed in escrow with other notes, and a mortgage securing them to be at such time fully executed by the purchaser and his wife. A written memorandum of such agreement was signed when the papers were put in escrow; all the papers being executed as a part of the same transaction. Held, that such papers and a prior mortgage referred to in the d ed and assumed by the purchaser constituted the contract.

6. EVIDENCE-PAROL EVIDENCE-WRITTEN INSTRUMENT-CONSTRUCTION.

In an action based on a written contract, parol evidence is admissible of prior and concurrent conversations explaining the circumstances, showing the real consideration, the identity of the subject-matter referred to, and to give effect to the contract. 7. VENDOR AND PURCHASER

CONSTRUCTION

OF CONTRACT-ASSUMPTION OF CHARGE.

The written evidence of a contract for the purchase of land provided that the purchaser agreed to pay $100 annually to a certain person during life, and in the deed to the property, forming part of the contract, and which the purchaser was to receive, he assumed a prior mortgage in which the mortgagor agreed to pay as interest the same sum to the same person. The principal of such prior mortgage was payable, 60 days after the death of the person receiving the $100, to one who had received the land as devisee subject to such charge of $100 and sold it subject thereto, taking the mortgage as part payment. Held to justify a finding that the last purchaser agreed to take the land subject to said charge, and not to show a requirement for a double annual payment of $100.

Appeal from Circuit Court, Clinton County; Joseph Claybaugh, Judge.

Action by Jacob Ditchey against Charles W. Lee. From a judgment in favor of defendant, plaintiff appealed and the appeal was transferred from the Appellate Court, under section 1337n, Burns' Ann. St. 1901. Affirmed.

James V. Kent and H. C. Sheridan, for appellant. John C. Farber, for appellee.

MONTGOMERY, J. Appellant brought this action for money paid upon a contract for the purchase of certain real estate. The complaint comprises five paragraphs. The answer consists of a general denial and an affirmative paragraph, to which a reply in three paragraphs was filed. Appellee also filed a cross-complaint founded upon a promissory note, which was answered in four paragraphs, to which answers appellee replied in denial. The errors assigned and relied upon are that the cross-complaint does not contain facts sufficient to constitute a cause of action, that the court erred in each conclusion of law stated upon the special finding of facts, and in overruling appellant's motions for a new trial, in arrest of judgment, and to modify the judgment. The merits of the

controversy are most concisely exhibited by the special finding of facts; and appellant's exception to the conclusions of law stated thereon renders it unnecessary to consider separately the charge that the facts averred in the cross-complaint are insufficient. Ross V. Van Natta et al., 164 Ind. 557, 74 N. E. 10.

The following is a summary of the facts. found by the court: That on August 15, 1903, appellee was the owner in fee simple of lands particularly described, in Clinton county, containing 97.50 acres, more or less; that in the year 1892 Wilson Cohee died testate, the owner in fee of said lands, and his last will was afterwards duly probated, by item 7 of which he devised the same to his daughter, Rebecca F. Mushlitz, upon the condition that she pay to her mother, Susannah Colee, during life $100 anually, which annual payment was made a charge thereon; that on March 23, 1892, said Susannah Cohee duly filed her election in writing to take the provision made for her in said will in lieu of her statutory rights in the estate of her deceased husband; that on August 20, 1902, said Rebecca F. Mushlitz sold, and, together with her husband, by warranty deed conveyed, said lands to James P. Dudley, subject to an annual dower of $100 payable to Susannah Cohee, the first payment to begin March 1, 1904, which deed was duly recorded February 26, 1903; that on February 26, 1903, said Dudley, a single man, executed a mortgage on the lands to said Rebecca F. Mushlitz to secure the payment of a promissory note for $2,500, payable 60 days after the death of said Susannah Cohee, being the unpaid balance of purchase money for said real estate, and in the mortgage it was expressly stipulated that said Dudley as and for interest upon the debt thereby secured should pay annually to said Susannah Cohee $100, beginning March 1, 1904, and continuing each year thereafter during the life of said Susannah Cohee, which mortgage was duly recorded February 27, 1903; that on February 28, 1903, Dudley sold and by warranty deed conveyed said lands to appellee subject to said mortgage and subject to an annual payment of $100 to Susannah Cohee during her natural life, which charges appellee assumed and agreed to pay as a part of the purchase money for the lands, which deed was duly recorded March 3, 1903; that on August 15, 1903, appellant, with full knowledge of the provisions of said will and of said mortgage and of the deed from Dudley to appellee, and of the title to the lands, entered into a contract with appellee for the purchase of the lands, in pursuance of the terms of which appellee prepared, and, together with his wife, signed and duly acknowledged, a warranty deed conveying the same to appellant, for a stated consideration of $9,000, this deed containing provisions by which appellant assumed the payment of taxes commencing with the spring installment of 1904, the Dudley mortgage of $2,500, and $100 annu

ally to said Susannah Cohee during her life as part payment of the purchase money for the lands; that appellant read, examined, and approved said deed when so prepared and signed, and thereupon paid appellee $900 in cash, and executed and delivered to him his promissory note for $1,375, payable on or before March 1, 1904, with 6 per cent. interest and attorney's fees, being the note sued upon in the cross-complaint, and appellant also signed four promissory notes for $1,000 each, payable in one, two, three, and four years after date, and four notes for interest on the principal notes calculated at 6 per cent. to maturity, and a mortgage on the lands to secure the payment of said four principal and interest notes; that appellant and appellee further agreed that said principal and interest notes and said mortgage should be placed in an envelope, sealed and deposited in the Clinton County Bank until March 1, 1904, at which time appellant was to pay the $1,375 note, cause the mortgage to be dated, signed by his wife, properly acknowledged, and delivered, together with the notes secured, to appellee, and thereupon said deed from appellee should be delivered to appellant; that the deed, notes, and mortgage were placed in an envelope, sealed up, and taken by appellant and appellee and deposited with an officer of the American National Bank of Frankfort, the change of depository having been mutually agreed upon, and these papers so remained with said bank until the trial of this cause; that a memorandum of the contract for the purchase and sale of said lands was, at the time, made in writing and signed by appellant and appellee, in which reference was made to said notes, mortgage, and deed; that on September 12, 1903, appellant paid appellee $250 on the $1,375 note, and on the 29th day of February, 1904, notified him that he would be unable to raise the money for the payment of the balance of said note, and on the 1st day of March, 1904, by one McClamroch, offered appellee the sum of $1,165.33 in payment of said note, on condition that appellee would release the lands from the annual payment, or charge, of $100 to Susannah Cohee; that appellee thereupon declared that he could not release the annual charge, and had not contracted to do so, and offered to accept the money in payment of said note, but appellant refused to pay except upon condition that such charge be released; that on the 1st day of March, 1904, appellee requested appellant to have said mortgage signed, acknowledged, and delivered, together with said notes, and to pay the balance of the $1,375 note, and, upon the same being done, offered to deliver said deed, and ever since has been able, willing, and ready to deliver the deed and to convey the lands in accordance with said contract, but appellant failed to do as requested; that the balance of principal and interest due on the $1,375 note is $1,200, and a reasonable attorney

fee thereon is $70, which amounts are due and owing from appellant to appellee upon the note sued upon in the cross-complaint and remain unpaid; that said Susannah Cohee is alive, but appellant refused to make the annual payment to her March 4, 1904, as required by the terms of said contract and deed. As conclusions of law upon these facts the court stated (1) that appellant take nothing, and that appellee recover costs upon the issue joined on the complaint; and (2) that appellee recover of appellant on the crosscomplaint $1,270, together with costs.

Appellant's learned counsel base their principal contention upon the proposition that, in the absence of an agreement to the contrary, the vendor of real estate is required to convey a marketable title. Small v. Reeves, 14 Ind. 163; Smith et al. v. Turner et al., 50 Ind. 367; Goodwine v. Morey, 111 Ind. 68, 12 N. E. 82; Morris v. Goodwin, 1 Ind. App. 481, 27 N. E. 985; Puterbaugh v. Puterbaugh, 7 Ind. App. 280, 33 N. E. 808, 34 N. E. 611. This general proposition of law is well settled, but, when applied to the case at bar, it is not decisive of appellant's contention. The will of Wilson Cohee, deceased, devised the lands in controversy to his daughter on condition that she pay to her mother during life $100 annually; and the payment was made a charge upon the lands. No provision was made for a forfeiture of the title, nor was devise over made to the widow or to any one else in the event of default in payment and forfeiture of the title by the daughter. It is clear that the word "condition" was used in the will in the sense of consideration, and that the title devised was not conditional, but was merely incumbered with an annual charge of $100 during the lifetime of Susannah Cohee. The title devised was absolute, subject only to the specific lien charged against it, and in case of default in payment the remedy would be a foreclosure of the lien, and not a forfeiture of the land. Van Horn v. Mercer, 29 Ind. App. 277, 64 N. E. 531. This interpretation of the will, which we think plain beyond serious controversy, leads to the conclusion that the chain of title exhibited, apart from liens, is good and marketable. A purchaser of land may contract to accept a defective title and a conveyance without covenants of general warranty, and may also assume outstanding liens upon the land conveyed, either as part of the consideration named in the deed or in addition to such stated consideration. Allen v. Lee, 1 Ind. 58, 48 Am. Dec. 352; Rockhill v. Spraggs, 9 Ind. 30, 68 Am. Dec. 607; Pitman v. Connor, 27 Ind. 337; Robinius v. Lister, 30 Ind. 142, 95 Am. Dec. 674; McDill v. Gunn et al., 43 Ind. 315; Davis v. Hardy, 76 Ind. 272; Carnahan et al. v. Tousey, 93 Ind. 561; State ex rel. v. Kelso et al., 94 Ind. 587; Stanton v. Kenrick et al., 135 Ind. 382,. 35 N. E. 19.

Supp. 1905, § 5405f), must, under the express provisions of the statute, be taken to the Appellate Court.

Appeal from Circuit Court, Lake County; W. C. McMahan, Judge.

Action by the Grand Trunk Western Railway Company against Union B. Hunt and others. From a judgment rendered on sustaining a demurrer to the complaint, plaintiff appeals. Transferred to the Appellate Court.

Anderson, DuShane & Crabill, for appellant. E. C. Field, J. B. Peterson, H. R. Kurrie, and C. V. McAdams, for appellees.

MONKS, J. The Chicago, Indianapolis & Louisville Railroad Company, known as the "Monon," filed with the Railroad Commission of this state a petition against appellant and another railroad company under the act of 1897 (Acts 1897, pp. 237-239), being sections 5158a-5158h, Burns' Ann. St. 1901, to compel the construction, operation, and maintenance of an interlocking device at points in Lake county, Ind., where said railroads cross the track of the "Monon." The Railroad Commission granted the prayer of said petition and apportioned the cost of installing, maintaining, and operating said interlocking switch between the parties.

This suit was brought by appellant in the court below to review and revise said action of the Railroad Commission, and purports to be brought under the provisions of section 6 of the railroad commission act (Acts 1905, pp. 89, 90, c. 53), being section 5405f. Burns' Ann. St. Supp. 1905. Final judgment on demurrer to the amended complaint was rendered against appellant. Said section 6 (5405f) expressly provides that appeals from judgments of the circuit or superior courts, rendered in proceedings under said section 6, shall be to the Appellate Court. In ordering this transfer, we do not decide that an action can or cannot be brought under said section 6 to review and revise the action of the Railroad Commission in proceedings under the interlocking switch act (Acts 1897, pp. 237239), being sections 5158a-5158h, Burns' Ann. St. 1901, as that is a question for the determination of the Appellate Court.

This appeal is therefore transferred to the Appellate Court.

(167 Ind. 231)

TROMBLEY v. STATE. (No. 20,809.) (Supreme Court of Indiana. Oct. 24, 1906.) 1. CRIMINAL LAW-APPEAL-ERRORS-WAIVER. An appellant in a criminal case, who fails in his brief to present alleged errors, must be deemed to have waived the same.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3012.]

2. SAME-MISCONDUCT OF JURORS-FINDINGS OF TRIAL COURT-REVIEW.

The Supreme Court will not ordinarily review the decision of the trial court on the issue

of the misconduct of a juror in a criminal case based on contradictory evidence.

3. SAME-WAIVER-FAILURE TO OBJECT.

Accused, in a criminal case, discovered during the trial misconduct on the part of a juror, but he did not make his complaint known to the court until after verdict. No excuse was given for his failure to act sooner. Held, that accused waived his right to complain of the misconduct.

4. SAME-WHAT CONSTITUTES MISCONDUCT OF JURORS.

At the time the jury in a criminal case retired, the deputy prosecutor in a playful manner kicked one of the jurors on the leg. The juror turned around and shook his fist at the deputy prosecutor. The deputy prosecutor and the juror were on intimate and friendly terms. Held, not to show misconduct requiring the reversal of a judgment of conviction. 5. SAME.

The court, on appeal, cannot disturb a verdict of guilty on account of the alleged misconduct of a juror, unless it is shown that the misconduct was prejudicial to accused.

Appeal from Circuit Court, Sullivan County; O. B. Harris, Judge.

Frank Trombley was convicted of murder in the second degree, and he appeals. Affirmed.

C. D. Hunt, for appellant. C. W. Miller, Atty. Gen., C. C. Hadley, W. C. Geake, and Henry Dowling, for the State.

MONTGOMERY, J. Appellant was convicted of murder in the second degree. A reversal of the judgment is sought on account of alleged error in overruling appellant's motion for a new trial. The grounds of the motion were the giving of certain instructions, the refusal to give others tendered, misconduct on the part of two jurors, and that the verdict is contrary to law and the evidence. The evidence has not been brought before us, and we cannot therefore pass upon its sufficiency to sustain the verdict, and the alleged errors relating to instructions have been waived by a failure to present them for consideration in appellant's brief.

It is insisted by counsel for appellant that such misconduct of jurors is shown as requires the granting of a new trial. It is charged in an affidavit by appellant that, at a recess in the trial during the introduction of the state's evidence, the jury left the box, and while returning one of the jurors when within a few feet of Tude Ingram gave a sign of recognition to said Ingram by a movement of the hand and head and a wink of the eye, which said Ingram answered by a smile and a nod; that said acts were seen by appellant, and when said juror and Ingram discovered that they were so observed they appeared embarrassed; that said Ingram was a brother or half-brother of the deceased, and took, and was at the time taking, an active part in the prosecution of appellant; that appellant immediately mentioned to his counsel what he had seen, but did ot understand its importance, and had no opportunity to explain the matter in full un

til the close of the trial; and that upon his voir dire said juror had answered that he was not acquainted with said Ingram and had never seen him prior to said trial. The state filed the counter affidavits of the juror named and of said Ingram, in which they swore that the charge of appellant was absolutely false in substance and in fact, and declared that at the time mentioned they were wholly unacquainted with each other, and specifically denied the acts charged and the making of any sign or gesture at any time by way of recognition or response. We are unwilling to hold that a public exchange of salutations between a juror and a prosecuting witness during a trial and in the manner described would constitute harmful misconduct, and in this case are not required to decide the question, since we cannot say that the charge is true. This issue was submitted to the trial court wholly upon affidavits, and we are therefore enabled to get a fair view of the proofs upon which his decision was grounded and are fully satisfied with the conclusion reached by the trial court. Ordinarily this court will not review the decision of a collateral fact of this character upon contradictory evidence. Shular v. State, 160 Ind. 300, 66 N. E. 746; Keith v. State, 157 Ind. 376, 61 N. E. 716; Hinshaw v. State, 147 Ind. 334, 47 N. E. 157; Epps v. State, 102 Ind. 539, 1 N. E. 491; Doles v. State, 97 Ind. 555; Long v. State, 95 Ind. 481; Weaver v. State, 83 Ind. 289; De Priest v. State, 68 Ind. 569; Beard v. State, 54 Ind. 413; Holloway v. State, 53 Ind. 554; Romaine v. State, 7 Ind. 63.

A man on trial for his life ordinarily would be instinctively quick to observe and complain of any manifestation of bias or prejudice against him on the part of the jurors upon whose decision his fate depended. If appellant saw, as he claims to have done, a suspicious interchange of signs of recognition between his prosecutor and a juror who were supposed to be strangers to each other, its significance would doubtless impress him at once. No subsequent occurrence or information is shown to explain, or to magnify in the mind of appellant the importance of the acts of which he complains. If, after verdict, he regarded the incident as important, he ought to have so regarded it at the time of its alleged occurrence; and, if he deemed it to be misconduct on the part of the juror, he should have made his complaint known to the court at the earliest opportunity, and arrested the trial. No substantial excuse is given for his failure to speak at once, and having kept silent, and thereby elected to abide the action of the jury, he waived his right to complain of the alleged misconduct. It follows, therefore, that if the acts occurred as charged, and were conceded to be harmful, appellant, having knowledge long previous, could not complain thereof for the first time after verdict against him. Blume v. State, 154 Ind. 343,

78 N.E.-62

356, 56 N. E. 771; Madden v. State, 148 Ind. 183, 187, 47 N. E. 220; Robb v. State, 144 Ind. 569, 43 N. E. 642; Grub v. State, 117 Ind. 283, 20 N. E. 257, 725; Waterman v. State, 116 Ind. 51, 53, 18 N. E. 63; Coleman v. State, 111 Ind. 563, 13 N. E. 100; Henning v. State, 106 Ind. 386, 6 N. E. 803, 7 N. E. 4, 55 Am. Rep. 756.

It was charged upon the affidavit of the deputy clerk that, as the jury retired to deliberate upon a verdict, one of the jurors looking in the direction of appellant extended his left arm with his hand closed and made repeated motions with his arm and hand in the manner of shaking his fist, at or toward appellant. The juror thus accused denied that he shook his fist or made any other gesture at appellant, but said that, as the jury were passing out, the deputy prosecutor, A. R. Martin, with whom he was on intimate and friendly terms, in a playful manner kicked him on the leg, and that he then turned round and shook his fist at said Martin, and at no other person, and that said motions were made by him in a friendly spirit, and not otherwise, and that they were the same motions and gestures mentioned in the affidavit of the deputy clerk; that at no time did he entertain any ill feeling toward appellant; and that in argument appellant's counsel admitted that he was guilty of voluntary manslaughter, and that during the deliberations of the jury for many ballots affiant voted to convict appellant of manslaughter and of no higher degree of homicide, and concurred in the verdict of murder in the second degree after long deliberation, and only when finally convinced of appellant's guilt of that offense. A. R. Martin, the deputy prosecutor, also made affidavit fully and specifically confirming the statements of the juror in explanation of the gestures complained of by appellant. These affidavits satisfactorily explain the acts complained of and make it entirely clear that the juror named did not manifest any prejudice or hostility toward appellant, and upon that theory the charge of misconduct is groundless. The sportive mood and conduct of the deputy prosecutor and juror were ill-timed and did not comport with the gravity of the moment and the importance of the question under consideration; but in the incident nothing is found that can fairly be said to appeal to the prejudice or favor of the juror or to disqualify him from impartially deciding the guilt or innocence of the accused. We are justified in disturbing a verdict of guilty on account of the alleged misconduct of a juror only when it is shown that such misconduct was prejudicial to the rights of the defendant, or when such a state of facts is shown that it may fairly be presumed therefrom that the defendant's rights were prejudiced. Drew v. State, 124 Ind. 9, 12, 23 N. E. 1098; Long v. State, 95 Ind. 481, 486; Achey v. State, 64 Ind. 56; Whelchell v. State, 23 Ind. 89; Bersch v. State, 13 Ind. 434, 74 Am. Dec. 263.