(121 Ind. 176) LINDLEY v. KREGELO. diction as to him; and having jurisdiction of the cause of action, and of one of the defendants, and by the issuing and service of process Under Rev. St. Ind. 1881, § 312, which pro- on the other defendant, Lindley, in Parke vides that action may be brought in any county county, it had jurisdiction to try and deterwhere one of two or more defendants reside, and mine the controversy as to all of the parties. summons issued to any other county where the The construction we place upon section 312, other defendants reside, and that an action may be begun against non-residents in any county where Rev. St. 1881, is that where there are severthey may be found, it is proper, in a joint cause of al defendants, and the court obtains jurisdicaction against two, to bring the action in the coun- tion over one of them, it has jurisdiction ty where the defendant who is a non-resident has been found and served with summons, and to issue over all others residing within the state by summons to another county wherein the other de-issuing and serving process on them. fendant resides. is no error in the record. Judgment affirmed, with costs. Appeal from superior court, Marion county; D. W. HOWE, Judge. Action by Charles E. Kregelo against John H. Lindley and Melville E. Heiner. Judgment for plaintiff, from which defendant Lindley appeals. Rev. St. Ind. 1881, § 312, contains the following: "312. Residents and Non-Residents-Assignees. 35. In all other cases the action shall be commenced in the county where the defendants or one of them, has his usual place of residence. Where there are several defendants, residing in different counties, the action may be brought in any county where either defendant resides, and a separate summons may be issued to any other county where the other defendants may be found; and in cases of non-residents, or persons having no permanent residence in the state, action may be commenced and process served in any county where they may be found. * * *" John C. Brush, for appellant. Albert W. There (121 Ind. 203) GODFREY et al. v. CRISLER et al. (Supreme Court of Indiana. Nov. 27, 1889.) PAYMENT-BY PROMISSORY NOTE. In a suit to foreclose a mortgage, wherein the defense is made that the mortgagee accepted notes of a subsequent purchaser of the land as payment pro tanto of the mortgage debt, and plaintiff contends that, while he supposed such notes were given as a part of the purchase money, they were who was the wife of the maker, merely as surety not in reality, and were signed by the purchaser, for her husband, and were therefore void as to her, and that the maker is insolvent, the burden rests upon the defendants to show that the notes were accepted as absolute payment pro tanto. Appeal from circuit court, Decatur county; S. A. BONNER, Judge. Action by Nancy A. Crisler et al. against Sarah E. Godfrey et al. to foreclose a mortgage. Judgment for plaintiffs. Defendants appeal. John S. Scobey, for appellants. W. W. Lambert and Moore & Marshall, for appellees. OLDS, J. This is a suit on account by the appellee against the appellant, John H. Lindley, and one Melville E. Heiner. The suit MITCHELL, C. J. This was an action by was commenced in the Marion superior court, Nancy A. Crisler, to foreclose a mortgage exand service had upon the defendant Heiner ecuted by Newton E. Charlton and wife, covin Marion county, Heiner being at the time a ering certain real estate which the latter resident of the city of Chicago, Ill., and a conveyed, after the mortgage to the plaintiff summons issued and sent to Parke county, had been executed and duly recorded, to Mrs. and the appellant, Lindley, served the day Godfrey. The mortgagors and subsequent following the service on Heiner. The de- purchaser were made parties. The mortgage fendant Lindley answered, alleging that nei- was given to secure two notes,-one for $150, ther he nor his co-defendant resided in Marion due in one year, the other for $50, due in two county, Ind., nor did either reside there at years,-both of which were given for unpaid the commencement of this action; that he is purchase money due from Charlton to Mrs. a bona fide resident of Parke county, Ind., Crisler. It is alleged in the complaint that and that neither of said defendants is subject upon the sale of the mortgaged real estate by to the jurisdiction of the Marion superior Charlton to Mrs. Godfrey the latter, with her court; which answer is verified by said Lind- husband, executed two notes in consideration ley. The plaintiff replied to the answer of of certain personal property purchased by the Lindley by general denial. Trial had, and a husband from Charlton; that one of the notes finding and judgment for the plaintiff against was for $110, the other for $50, both of them both of the defendants. Lindley filed a mo- payable to the plaintiff, and secured by morttion for new trial, which was overruled, and gage on the real estate conveyed by Charlton error assigned as to the ruling in the motion to Mrs. Godfrey. It is further averred that for new trial. The question presented and the notes thus executed and secured were dediscussed is as to the jurisdiction of the court livered by Charlton to the plaintiff, and that as to the defendant Lindley. The suit is up- they were received by her, and credited on on a joint cause of action. The defendant the amount due her from Charlton, under the Heiner, being a non-resident of the state at belief that they had been given in considerathe time of the commencement of the suit, tion of purchase money due from Mrs. Godand he being found and served with process frey to Charlton. The plaintiff alleges that in Marion county, Ind., the court had juris-she did not receive the notes in payment at her own risk, nor agree to accept them in sat- | must be a clear and special agreement that isfaction of so much of the debt due her and the vendor shall take the paper absolutely as secured on the real estate. It is averred that payment, or it will be no payment, if it aftGodfrey is utterly insolvent, and that his erwards turns out to be of no value." Johnwife signed the notes as surety merely, with- son v. Weed, 9 Johns. 311; Bank v. Lightout having received any part of the consid- body, 13 Wend. 103. eration. The plaintiff brings the notes so received into court, and offers to surrender them up, and prays that her mortgage may be foreclosed, as if no credit had been indorsed on the notes therein described, which she alleges are due and unpaid. It is admitted by the answer that Mrs. Godfrey executed the notes which Charlton delivered to the plaintiff as surety for her husband, but it is averred that they were not received in pay-notes were received under an express agreement and satisfaction pro tanto of the debt described or mentioned in the complaint. There is no question made upon the pleadings, which sharply present the issue whether or not the notes executed by Godfrey and wife were accepted as payment of the debt due from Charlton to the plaintiff, and secured by mortgage on the real estate subsequently conveyed by the latter to Mrs. Godfrey. The contention of the appellant that there is no evidence tending to show that the plaintiff was.imposed upon or overreached is of no consequence, nor are there any considerations of an equitable character which can have weight. The issue was whether or not the plaintiff had received the notes executed by Godfrey and wife in payment of a debt which is confessedly valid and unpaid, unless the ment that they should operate as payment. This issue was found against the defendants, and the evidence sustains the finding. Indeed, it may be doubted whether an express agreement to accept the notes in satisfaction would have concluded the plaintiff, since it is admitted that she believed at the time she received them that they were given upon a consideration which would have made them It is conceded in an agreed statement of valid and binding upon Mrs. Godfrey, the facts that Godfrey was insolvent when the only solvent maker. The acceptance from a notes executed by himself and wife were de- debtor of forged paper, or paper which the livered to the plaintiff by Charlton, and that maker had no capacity to execute, in ignohis wife signed them as surety for her hus-rance of the facts, will not discharge a prior band in October, 1885, and that as to her they liability, even though there be an express are consequently void. It is also agreed that agreement to that effect. It is a general rule the notes were received by the plaintiff under that where a debtor gives a new security in the belief that they were given in considera- | discharge of a prior obligation, if the new one tion of unpaid purchase money due from is void or avoided, the creditor may sue on Mrs. Godfrey to Charlton, and that, unless the original contract. Bank v. Buchanan, the taking of these notes operated as pay- 3 Pickle, 32, 9 S. W. Rep. 202. The judgment of the notes sued on, no payment had ment is affirmed, with costs. been made upon them. The burden of proof is upon the party who alleges payment; and, if he asserts that he paid in anything besides money, he assumes the additional burden of proving that what was received was taken in payment, and at the risk of the creditor. Gravel Co. v. Iron-Works, 124 Ill. 623, 16 N. E. Rep. 923; Hunter v. Moul, 98 Pa. St. 13; Brown v. Olmsted, 50 Cai. 162. (122 Ind. 272) RHEA et al. v. SWAIN.1 (Supreme Court of Indiana. Nov. 27, 1889.) WARRANTY-ACTION FOR BREACH-PLEADING. 1. In an action for breach of covenant of war ranty, after plaintiff has been ousted by the real owner, allegations in a cross-complaint as to the rental value of the land during the time it was ocThe doctrine upon which the judgment ap-cupied by the plaintiff, and as to the value of timpealed from must be affirmed is thus stated ber removed therefrom by him, are properly in Muldon v. Whitlock, 1 Cow. 290: "No title the real owner sought and failed to obtain stricken out, although in the suit determining the principle of law is better settled than that judgment therefor against the plaintiff. taking a note either from one of several joint his title against adverse claimants, in which ac2. Where a grantee brings an action to quiet debtors, or from a third person, for a pre-ex- tion the grantor appears, and judgment is rendered isting debt is no payment, unless it be ex-in favor of the adverse claimants, it is proper, in pressly agreed to be taken as payment, and at an action by the grantee on his covenant of warthe risk of the creditor. Nor does the tak-ranty, to strike out, as immaterial, the grantor's ing of a note, and giving a receipt for so former suit to evade payment of the balance of the allegation of conspiracy between the parties to the much cash, in full of the original debt, purchase price due him, there being no denial that amount to evidence of such express agree- the adverse claimants in the former suit were the ment to take the note in payment. The true owners of the land. agreement must be clearly and explicitly proved by the original debtor, or he will still be held liable." Albright v. Griffin, 78 Ind. 182; Manufacturing Co. v. Probasco, 64 Ind. 406. Paper is no payment of a precedent debt. It is always taken under the condition to be payment if the money be paid in convenient time. Ward v. Evans, 2 Ld. Raym. 928. "The books all agree that there Appeal from circuit court, Morgan county; JOSEPH E. HENLEY, Special Judge. Action by Josiah G. Swain against Joseph W. Rhea and Joseph Donaldson for breach of covenant of warranty of title. Judgment for plaintiff. Defendants appeal. W. S. Shirley and W. R. Harrison, for appellants. Adams & Newby and Jordan & Matthews, for appellee. 1 Rehearing denied, 23 N. E. 776. OLDS, J. The appellants conveyed to the the other suit were in fact the true owners of appellee certain real estate by deed of gen- the land, and the allegations in regard to the eral warranty. The appellee occupied the conspiracy were immaterial, and there was land a few years, when parties by the name no error in striking them out. It is conof Shake made claim of title thereto, and the tended that the court erred in excluding the appellee and one Eli P. Shake commenced an record in the former case when offered by the action against Jacob Shake and others to appellants in evidence, but the record was quiet the title to the land, and notified the already in evidence, and no good could have appellants of such action, and that the title been subserved by again putting it in evito said land was disputed and claimed by the dence. It is also contended that the court defendants, Shake and others. The appel- erred in excluding the testimony of some witlants appeared in said action, and filed a nesses relating to the rents of the real escomplaint, and contested the title to the tate. In this there was no error. The rents land with the defendants in said action. were not properly a set-off, and the evidence Issues were joined, and trial had, resulting relating thereto was properly excluded. It in a finding and judgment in favor of the de- is also contended that the court erred in givfendants, Jacob Shake and others, that they ing and refusing instructions asked for by were the owners of the land, entitled to pos- defendants. We have examined the instrucsession against both the appellants and the tions, and they correctly state the law of the appellee. The appellee then brought this ac- case, and there was no error in refusing the tion for breach of the covenants of warranty. instructions asked for by defendants and not To this action the appellants pleaded by an- given. We do not deem it necessary to set swer and cross-complaint in which they al- them out in the opinion. It is further conlege, among other things, the fact that the ap-tended that the verdict of the jury is not sus pellee had occupied the land, its rental value, tained by the evidence, and that the damages and that he had also cut and removed tim-assessed are excessive. It was contended by ber of the value of $100; and further alleged in the cross-complaint that the appellee, for the purpose of avoiding the payment of his notes given for the balance of the purchase money, conspired with Eli P. Shake, and brought the suit against Jacob Shake et al., to quiet title; and asked that the value of the rent and timber be set off against any sum found due the plaintiff. A motion was made to strike out the allegations in regard to the rent and conspiracy, and the motion was sustained, and this ruling of the court is assigned as error. There was no error in this ruling. The measure of damages is the amount of the purchase money, with interest, and the appellant was not entitled to set off the value of rent or the timber cut and removed. The appellee was liable to the true owner for the rent and the timber. Wilson v. Peelle, 78 Ind. 384. It is contended that in the for- TUCK v. MANNING et al. HOLMES v. Same. mer suit between appeilants, appellee, and Shake and others that Shake, the owner of the land, sued for the rent, and failed to recover a judgment for the same, and that the appellee is relieved by the judgment in said cause from any liability for rent to the true owner; that the appellants in this case stand in the position of having paid the rents to the true owner, and therefore have the right to have the rents set off against any sum that may be due the plaintiff. The transcript in the cause is not properly indorsed with marginal notes, as required by rule 19, but we have examined the record in said cause as introduced in evidence, and we do not think there is anything in the record which changes the status of the parties, and make the appellants the owners of the rent for the real estate, or the timber taken therefrom, and entitles them to set off the value of the same against any sum found due the appellee in this case. There are no allegations controverting the fact that the defendants in appellee that he paid for the land $1,800, as follows: $8 in corn, and notes on one Johnson for $992, which corn and notes were accepted as an absolute payment, or as a $1,000 cash payment, and gave his notes secured by mortgage on the land for $800 of a balance; while it was contended by appellants that the Johnson notes were taken as collateral, and that the appellants, before the commencement of this suit, had tendered back all they had received; and the jury found for the appellee, and returned a verdict for $1,000 and interest, amounting to $1,175.66. There is evidence tending to support the verdict. There is no error in the record for which the judgment should be reversed. Judgment affirmed, with costs. SOPER et al. v. SAME. folk. Nov. 29, 1889.) (150 Mass. 211) (Supreme Judicial Court of Massachusetts. SufEQUITY-JURISDICTION GARNISHMENT - MONEY DEPOSITED WITH COURT. 1. Pub. St. Mass. c. 151, § 2, cl. 11, which provides that proceedings in equity will lie to reach the property of a debtor which cannot be reached by an action at law, does not authorize a bill to subject money to the payment of defendant's note held by plaintiff which has been deposited in court to await judgment, in another action to which defendant is a party. 2. Where money has been deposited with the clerk of the court to await the judgment of the court in an action then pending, the clerk cannot ase made a party to a bill in equity brought by a creditor of one of the parties to such action, for the purpose of applying the interest of such party in the money so deposited to the payment of the creditor's claim. Report from supreme judicial court, Suffolk county. This was an action brought by Somerville E. Tuck against Jerome F. Manning, to reach and apply, in satisfaction of his indebtedness to plaintiff, Manning's interest in certain | Golyer, 115 Mass. 67; Jones v. Jones, 1 moneys paid into court in the suits of Samuel Bland, 443; Wilder v. Bailey, 3 Mass. 288; P. Soper et al. v. Manning et al. and Edward Drake, Attachm. § 251. The grounds on Holmes v. Manning et al. The plaintiff also which Com. v. Insurance Co., 119 Mass. 155, filed motions in those suits, setting forth, in was decided, show, we think, that neither substance, the facts alleged in the bill in this the bill nor the petitions can be maintained. suit. The suits of Soper v. Manning and It is said in the opinion in that case that the Holmes v. Manning were bills in equity eleventh clause of Gen. St. c. 113, § 2, "does brought by the payees of drafts issued by the not extend to property which is not in the United States in payment of claims approved control of the debtor, nor put by him into the before the court of commissioners for Ala- custody of a third person, but which is in bama claims. These drafts were retained by the hands of officers of the law for distributhe defendant Manning under the claim of a tion under proceedings provided by statute lien for fees and expenses in the proceedings for that purpose." Id. c. 113, § 2, cl. 11, is before the court of commissioners. The de- now Pub. St. c. 151, § 2, cl. 11. St. 1-84, c. fendant Manning had been ordered to deliver 285, which was passed to extend the jurisdicup the drafts in question upon the plaintiffs' tion in this class of cases, has no language paying into court certain sums of money as which can be held to apply to property alfees, or as security for what should be found ready in the custody of a court competent to to be due as fees, to Manning on account of deal with and dispose of it. his services in procuring the drafts. Manning was indebted to Tuck upon a promissory was decided that money in the hands of a note, and, upon a judgment being rendered in favor of the defendant Manning for a large portion of the sum thus deposited, Tuck filed this bill to apply the same to the payment of his note, and also making John Noble, the clerk of the court into whose hands the money had been deposited, a party to the action. S. D. Warren and L. D. Brandeis, for plaintiff. C. Cowley, for defendants. FIELD, J. Tuck, the plaintiff and petitioner, when he filed his bill and petitions, held a promissory note signed by Manning, and he brought the suit in equity against Manning and John Noble, the clerk of this court, to reach and apply to the payment of this note the right, title, and interest of Manning in certain sums of money which had been paid into court by the plaintiffs in two suits named in the bill, in which Manning is a party defendant. The plaintiff also filed petitions in these two suits, asking that the payment of money to Manning by the clerk might be stopped, and that he might have such relief as he was entitled to. These sums of money were and are held by Noble as clerk, subject to the order of the court in the suits respectively in which they were paid in, and decrees have been entered in the suits ordering portions of these sums to be paid to Manning, but the payments to him have not yet been made. Some time after the bill and the petitions were filed the plaintiff recovered judgment in the supreme court of New York against Manning on this promissory note in a suit which was pending when the bill and petitions were filed, and he has been permitted to amend his bill by setting out this judgment. The custody which Mr. Noble has of the moneys is the custody of the court, and he must obey the orders of the court made in the suits, respectively, in which the moneys have been deposited, and he cannot be made a party to independent proceedings. either in this court or in any other, whereby the disposition to be made of the moneys can be affected or controlled. Book Co. v. De In Wilder v. Bailey, 3 Mass. 288, where it deputy-sheriff, collected on an execution not yet returnable, could not be attached by trustee process against the judgment creditor, it was said by PARSONS, C. J., that, "before a different decision can prevail, the design of the legislature must be very clear that any person claiming to be a creditor, when perhaps there is no color for his claim, but his real object is to assist the judgment debtor or the officer to detain the money, may arrest the process of a court of record issued to execute a judgment, by controlling or suspending the powers and duties of the ministers of the law deriving their authority from precepts which they ought to obey." There is nothing in St. 1884, c. 285, which indicates that the legislature intended to change the law as declared in Com. v. Insurance Co., and it cannot be held that the suit in equity in this case is authorized by that statute. In Com. v. Insurance Co., the petition was filed in the suit in which receivers had been appointed, and the attempt was made to reach a dividend in the hands of the receivers which was due to a debtor of the petitioner, and to apply it to the payment of the debt due to the petitioner. The court say that "the property of the corporation is intrusted to the receivers by the authority of the law, for the purpose of distribution among the creditors of the corporation, not among the creditors of those creditors. To undertake to determine, as incidental to the administration of the estate of the corporation, the validity and equity of the claims of every creditor of the corporation, would unreasonably embarrass and delay the distribution of the estate and the settlement of the accounts of the receivers." The proceedings in which the sums of money were deposited which the plaintiff and petitioner in this case attempts to reach were not proceedings by or for the creditors of Manning. He was compelled to deliver up drafts on which he had a lien, and the moneys were paid into court by the plaintiffs in the suits, that the amount of his lien, when determined by the court, might be paid | FIELD, J. The will of Mrs. Wells was to him out of these moneys. To permit a written by herself, and is dated June 2, 1886. creditor of Manning, by filing a petition, to She died, without issue, April 4, 1887. Her intercept the payment therefrom of the father, two brothers, one sister, and one amount due to him when determined by the nephew, son of a deceased brother, survived court, is open to all the objections which so her. She was a widow, her husband having frequently have been stated against permit- died February 8, 1872. There is no mention ting an attachment of money which has been of her mother, but it is evident that she had collected on execution by an officer, and is died before the will was made. The age of held by him for the purpose of delivering it the testatrix does not appear from the papers, to the judgment creditor. Money has been but there is no doubt that she did not conbrought into court by defendant in actions template the possibility of marrying again, at law under the common rule from the ear- and of having children. The nearest blood liest times, but creditors of the plaintiffs have relations of her husband, living at the time never been permitted to reach it by becoming of her death, were one nephew and seven parties to or by intervening in the actions. nieces, and the children of a niece who had In equity the payment of money into court died. The will puts all her property in trust by the plaintiff is often required as a condi- for her father, if he survive her, with direction of a decree or order, and the court ulti-tions to the trustees to give him the use of mately determines the rights of the parties to it, "or as much of it as he shall need for his the money so paid in. Persons who hold as- comfortable support," during his life, "prosignments of the interest of parties in a fund vided he remain unmarried." The will also in court, or liens upon it, have been permitted provides that "in case the income from my in equity to appear as claimants; but cred- estate, added to the one thousand dollars itors, who have acquired neither an assign- which shall be paid by my father, said Alvah, ment nor a lien upon the fund, have in this should, by losses, changes, or any loss, be incommonwealth, so far as we are aware, never sufficient for his comfortable maintenance, I been permitted to intervene, and to admit will and direct the whole estate, both real them would interfere with the final determi- and personal, shall be freely, but judiciously, nation of causes, and would convert suits in used for his ease, benefit, and comfort." which money has been deposited in court in- will also directs the trustees to pay to her fato proceedings for the benefit of creditors of ther, "for his sole and separate use, as long one or more of the parties. The petitioner as he shall live, an annuity of one hundred shows neither an assignment nor a lien, dollars, payable quarterly. With reference legal or equitable, upon the moneys paid into to the future marriage of her father, the procourt. In the opinion of a majority of the vision is as follows: "Shall [should] such a court the bill and the petitions must be dis- thing occur as his marriage at his advanced missed. So ordered. age, which, though possible, is still very improbable, I direct my trustees at once to proceed with the distribution of my estate in the same manner as if my father were deceased." The will provides that "at the decease or marriage of my father, said Alvah, Senior, I direct my said trustees to pay" to various persons named various sums of mon (150 Mass. 225) FARGO v. MILLER et al. (Supreme Judicial Court of Massachusetts. 66 The The will of a testator, a widow, devised alley, in all amounting to about $14,000, and The will of a testator, a widow, devised all to set apart and create" five separate trust her property, or as much as should be necessary for the purpose, in trust for the support, use, and funds, in all amounting to $10,000. The benefit of her father. Upon his death, after the persons to whom legacies in money are thus payment of certain specific legacies, the testator bequeathed all the residue of her estate to the next given include the children of the deceased of kin, and the next of kin of her deceased hus-niece of her husband, and her nephew, the son band. Held, that the next of kin of testator and her husband was to be determined as of the time of the death of her father, and included only the nearest blood relations living at that time. Case reversed from supreme judicial court, Hampshire county. Action by A. J. Fargo, as executor of the last will and testament of Sarah B. Wells, against Alvah Miller and numerous other defendants for a construction of the will of the testator. Case was reserved for the determination of the full court. of her deceased brother; and the persons to whom the income of these trust funds is given for life include her brother, Alvah Miller, Jr., and her sister. The income of the trust fund for her sister is to be "judiciously applied for her comfort in her invalid condition, so long as she shall live," "and upon her decease the trust so created shall cease, and the said fund shall be paid over and transferred to my next of kin, for their own benefit, and subject to their own control, share and share alike." The remaining trusts for persons are in effect E. P. Kendrick, for Alvah Miller et al., de- that the net annual income shall in each case. fendants. Coudert Bros., for defendant F. be paid and applied "to the use and benefit of A. Miller. Hammond & Field, for defend-the beneficiary, so long as he or she shall live, ant Edith L. Arms et al. M. J. A. Wain- and upon his or her decease the trusts so crewright and C. H. Van Alstine, for defend-ated shall cease, and the said fund shall beant M. W. Miller. come a part of my estate, to be hereinafter |