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interested in the existence of the ditch can complain; nor can we say, as matter of law, that the gravel road, if built, will interfere with the ditch. If the remonstrants desired to show that both the ditch and the road could not occupy the same right of way without conflict, they should have made their remonstrance much more specific.

The cases of Baltimore, etc., Co. v. North, 103 Ind. 486, S. C. 3 N. E. Rep. 144, and Dwenger v. Chicago, etc., Co., 99 Ind. 153, do not apply, for the reason that there the complainants were those whose rights were directly invaded, while here the rights of the parties who complain have not been invaded, nor does it appear that the board of commissioners may not, in the lawful exercise of the authority conferred upon it, direct a change to be made, if one is necessary, that will obviate all objections.

The judgment in this case was rendered on the eleventh day of April, 1885; and, as this was prior to the time the act of April 8, 1885, took effect, it is not necessary to decide whether that act repealed all previous laws or not, for a final judgment cannot be affected by the repeal of the statute under which it was rendered. Judgment afficmed.

(108 Ind. 436)

JUCHERT, Ex'r, and others 0. JOHNSON and others.

(Supreme Court of Indiana. December 14, 1886.) 1. HUSBAND AND WIFE-SEPARATE ESTATE OF WIFE CONTRACT-COMPLAINT.

Whenever it appears on the face of a complaint that the purpose of the suit is to affect the separate estate of a married wonian through a contract made with her during her coverture, it must also affirmatively appear that the contract sought to

be enforced against her was one which she had the power to make.1 2. SAME-ACTION BY MORTGAGEE-EVIDENCE.

A mortgagee who loans money to a married woman for the benefit of her separate estate is not concluded from showing that fact by taking a negotiable note of

the husband as part of the same transaction. 3. APPEAL-ERROR IN SUSTAINING DEMURRER-WHEN NOT HARMLESS.

Error in sustaining a demurrer to one paragraph of complaint is not harmless, unless it affirmatively appears that there was another paragraph under which the same facts might have been given in evidence. Appeal from circuit court, Gibson county. c. A. Buskirk, for appellants. L. C. Embree and T. R. Paxton, for ap

pellees.

MITCHELL, J. John and George W. Johnson commenced this suit to quiet their title as against a certain mortgage lien, which they alleged Joseph Juchert was asserting against certain real estate owned by them in Gibson county. An answer of general denial and a cross-complaint were filed by Juchert. The court sustained a demurrer to the cross complaint, to which ruling an exception was taken. Subsequently, what are denominated as the third and fourth paragraphs of a cross-complaint were filed. A demurrer was sustained to the third paragraph so filed. The third and fourth paragraphs of the cross-complaint are to be treated as an amended cross-complaint. They superseded the second paragraph, which went out on demurrer. The exception to the ruling on that paragraph was waived by pleading over. Hunter v. Pfeiffer, ante, 124, (No. 12,709, present term.)

The third paragraph, as it is styled, presented, in substance, the following facts: On the fifteenth of January, 1884, Mrs. Grubbs, then a married woman, the wife of Thomas J. Grubbs, was the owner of the land in controversy, having inherited it from her deceased father. She negotiated a loan of money from Juchert with which to make improvements on certain other real estate owned by her in her own right. In order to secure the payment of the loan so negotiated it was mutually agreed between herself, her husband, and Juchert that Mrs. Grubbs should convey the real estate in question to her husband; that he should execute his notes to Juchert; and that Mrs. Grubbs and her husband should join in a mortgage on the land so conveyed to the latter. This was accordingly done. Mrs. Grubbs made a conveyance directly to her husband, who thereupon executed his notes, payable in a bank in this state, for the amount of the loan. These were secured by a mortgage, in which both joined, covering the land in controversy. It is alleged that the whole consideration of the loan was received by Mrs. Grubbs, and that her husband received no part thereof. Subsequently Grubbs and wife conveyed the land thus mortgaged to the Johnsons, who took it with both actual and constructive notice of all the facts. The propriety of the ruling of the court in sustaining the demurrer to the third paragraph of the cross-complaint presents the chief, if not the only, question for decision.

1See Fawkner v. Scottish-American Mortg. Co., (Ind.) 8 N. E. Rep. 689, and note; Sellmeyer v. Welch, (Ark.) 1 S. W. Rep. 777, and note.

In support of the ruling of the court below it is argued, on behalf of the appellee, (1) that the averments contained in the cross-complaint, in respect to the wife having negotiated and received the exclusive benefit of the loan, are surplusage, in that they merely anticipate the defense of coverture. Hence it is said they are not to be regarded as substantive, issuable averments properly in the complaint. (2) The husband having given his notes payable at a bank in this state, the debt of the wife, arising out of the loan, and receipt of the money by her, was, the appellees contend, presumptively paid and extinguished by the delivery and acceptance of the husband's note. Hence it is said the averments in respect to the loan, having been negotiated by and for the benefit of the wife, are in material, and are to be rejected as tending to contradict the notes, and vary the recitals written in the mortgage.

In respect to the first proposition. The cross-complainant was seeking to maintain and enforce a mortgage lien against real estate, the title to which was in a married woman at the time the mortgage was executed. The mortgage recited on its face that it was given to secure certain notes executed by the husband. Presumptively, the notes having been given by the husband, the debt which they evidenced was also the husband's. It having been averred that the land mortgaged was the separate estate of the wife, and it appearing that the conveyance made concurrently with the mortgage, by the wife to the husband, was such as in nowise affected her title, it was not only proper, but absolutely necessary, that the complaint should show that the debt secured by the mortgage was one which the wife had herself contracted, and that it was such a debt as was within her power to contract by reason of the fact that it inured to her benefit, or to the benefit of her estate. Whenever it appears on the face of a complaint that the purpose of the suit is to affect the separate estate of a married woman through a contract made with her during her coverture, it must also affirmatively appear that the contract through which her estate is thus sought to be affected was one which she had the power to make. Vogel v. Leichner, 102 Ind. 55; S. C. 1 N E. Rep. 554; Cupp v. Campbell, 103 Ind. 213; S. C.2 N. E. Rep. 565. Where a contract is declared on, and the complaint on its face does not necessarily disclose whether or not such contract was executed by a feme covert, it ordinarily becomes a matter of defense that a married woman should set up her coverture. When she alleges that, at the time the contract sued on was made, she was a feme covert, the burden is then cast upon the plaintiff to reply such a state of facts as renders her liable notwithstanding that she was under coverture when the contract was executed. In the case we are considering it appeared on the face of the complaint in question that the mortgage was executed by a married woman, and that it affected her separate property. It was therefore essential that it should be made to appear that the debt which the mortgage was given to secure was contracted by the wife, and that it inured either to her personal benefit, or to the benefit of her estate.

Concerning the second proposition, that the mortgagee is concluded, by the acceptance of the commercial note of the husband, from averring and

debt was contracted by and for the benefit of the wife, the ied upon does not follow. That the giving of a note governed hant, either by the debtor or by a third person, is presumpaishment of an antecedent debt, is thoroughly settled. This ive very little, if any, application to a case where the debt, s given for its repayment, arise out of one and the same conansaction. In such a case the whole transaction gives charparate part; and, if one substantial part of the transaction ed by attaching certain presumptions to another part of the

such presumptions will not be indulged. The transaction in all its parts, and the intent of the parties, as discovered umstances, is to control in its interpretation. Thus it is at the presumption of payment which ordinarily arises from ote governed by the law-merchant will be controlled when le to deprive the party who takes the note of a collateral ther substantial benefit. In such cases the presumption of ed by the circumstances of the transaction itself. 2 Daniel, 60, 1266, 1267; 2 Jones, Mortg. 8 924; Reeder v. Nay, 95

! in the paragraph under consideration make it apparent ; the debt secured on the mortgage was the debt of the wife. ch she had the power to contract, and for the security of ver to bind her separate estate. Having actually contracted used the whole consideration, it remained her debt until it notwithstanding the note given by her husband. With ts for her own benefit, or for the benefit of her estate, the I woman is plenary. When it is distinctly shown that the that character, her rights and liabilities are the same as if

Fawkner v. Scottish, etc., Co., 8 N. E. Rep. 689; Ward Ins. Co., ante, 361, (present term.) e us the wife contracted for, received, and applied the loan ier separate estate; the husband receiving no part of the

pledged her separate estate as security, by way of a morthusband joined. That her husband also gave his note as t, and as additional security, did not tend to make her conhip. That the true relations which the parties sustained tay be proved for the purpose of determining who received

well settled. Such proof does not vary or contradict the othing more than to give them intelligent application to the

nger Manuf'g Co. v. Forsythe, ante, 372, (present term.)

Liveves that it was given to secure the payment of certain notes therein described. The averments in the cross-complaint in no way tend to vary or contradict those recitals. They only go to show whose debt was evidenced by the notes, with a view to maintain the validity of the mortgage by making it clear that the debt was that of the mortgagor, Mrs. Grubbs, and that her contract was therefore not within the prohibition of section 5119. That the mortgage contained no agreement to pay the debt in nowise affected the question. The controlling facts are that it distinctly and unequivocally appears that the wise contracted for and received the exclusive benefit of the loan. Except as it is affected by the statute of limitations, a mortgage given to secure a debt so contracted has the same force and effect as a security, whether it contains an express promise to pay written therein or not.

Finally it is argued that, even if the ruling of the court in sustaining the demurrer to the third paragraph of the cross-complaint was erroneous, it was a harmless error. This result, it is said, follows from the fact that, under the

answer.

fourth paragraph, all the facts set up in the third were susceptible of proof. The fourth paragraph simply alleged the execution of the mortgage to secure the indebtedness therein described as the indebtedness of Thomas J. Grubbs. It alleged that the mortgage was duly recorded; that it was due and unpaid; and that the Johnsons had actual notice of its existence when they purchased. To this it was answered that Mrs. Grubbs was, at the time she executed the mortgage, a married woman, and that the land mortgaged was her separate estate. Inasmuch as the notes set out in the complaint were signed by the husband, so that they presumptively evidenced his debt, this was a sufficient

The record fails to disclose any reply whatever to the answer so filed. The only reply which could have been made available, assuming the facts to be as they are set up in the third paragraph of the cross-complaint, would have been one which presented substantially the same facts as those held insufficient on demurrer to that paragraph. It can hardly be assumed, the court having held the facts therein stated insufficient to show that the debt was that of the wife, that a different ruling prevailed during the progress of the case. At all events, it does not affirmatively appear from the record that there was any other pleading in the case under which the same facts were admissible in evidence, or that such facts were admitted. Where an error is committed in sustaining a demurrer to a paragraph of complaint, in order to save a reversal, it must affirmatively appear that there was another paragraph under which the same facts might have been proved, and that such error was on that account harmless. It does not so appear in this case.

The judgment is therefore reversed, with costs.

(108 Ind. 491)

SPRAGUE V. PRITCHARD.

(Supreme Court of Indiana. December 15, 1886.) 1. APPEAL-PLEADING-MOTION TO STRIKE OUT SURPLUSAGE.

The supreme court will not reverse a judgment because of the refusal of the trial

court to strike out of a pleading matter that is immaterial or surplusage. 2. SAME-WAIVER OF RIGHT TO JURY TRIAL.

Where a party goes to trial without requesting a jury, and without objection to the action of the court in trying the cause as an equitable one, merely with the advise of a jury, obtained by interrogatories, he cannot afterwards complain of such action. Appeal from superior court, Marion county. P. W. Bartholomew, for appellant. C.S. Denny, for appellee.

MITCHELL, J. This was a suit by James A. Pritchard to recover for professional services alleged to have been rendered for and at the request of Mrs. Sprague. The complaint is in two paragraphs. The first is an ordinary action for services rendered. The second paragraph is a complaint to enforce a specific lien, for the same services mentioned in the first count, against certain described real estate, which it is alleged the appellant, a married woman, owned in her own right, and in securing the title to which the services were alleged to have been rendered by the appellee in the year 1880. Issue was formed by an answer in denial. Finding and decree enforce a specific lien for $100, against the land described, in favor of appellee.

The appellant, at the proper time, made a motion to strike out portions of the second paragraph of the complaint. This motion was overruled. The written motion, which appears in the record, asks the court to strike out all that part of the second paragraph “commencing with the beginning of line 30, and including said line," down to and including line 62. As the complaint appears in the transcript, there are no lines which correspond with those above mentioned. We are therefore without the means of identifying the part of the complaint to which the motion was intended to apply. City of Crawfordsville v. Barr, 45 Ind. 258; Berkshire v. Young, Id. 461. Where a motion to strike out is so framed as that, where it is copied into the transscript, that part of the pleading to which it was intended to apply cannot be identified, manifestly it presents no question for consideration here. Besides, “the court has never reversed a judgment because of the refusal of the lower court to strike out of a pleading immaterial matter or suplusage." Gill v. State, 72 Ind. 266.

At the proper time the court directed a jury to be called to try the issue joined on the first paragraph of the complaint. The court at the same time announced that the issue on the second paragraph would be tried by the court, with the advice of the jury, by way of interrogatories and answers thereafter to be submitted. The trial was proceeded with, without objection, until after the jury returned a general verdict upon the first paragraph, and answers to interrogatories relating to the second. The appellant then objected to the jurisdiction of the court, and moved for a venire de novo. As there was no request made by either party at any time for a jury, and no objection to the trial as ordered by the court until after a verdict and finding against the appellant, the record presents no question for consideration in that regard.

It is said the court proceeded upon the authority of Major v. Symmes, 19 Ind. 117, and Sharpe v Clifford, 44 Ind. 346, and kindred cases, to try the cause, as one of equitable cognizance, so far as the second paragraph of the complaint was concerned, and to enforce a lien for the value of appellee's professional services against the land described. If any question had been properly made in respect to the regularity of the proceeding, or in regard to the power of the court to declare an incumbrance against the land of a married woman for attorney's fees, it might have become necessary for this court to determine whether the authorities relied on were applicable under the statute relating to married women, which was in force when the services were rendered. It might have been a question, too, whether the later decisions on the subject involved have not impaired the authority of the cases apparently relied on.

Pierce v. Osman, 79 Ind. 259. The record, however, presents no question, and the judgment is therefore affirmed, with costs. (108 Ind. 488)

ERWIN V. GARNER and others.

(Supreme Court of Indiana. December 15, 1886.) 1. GUARDIAN AND WARD-SALE OF REAL ESTATE-WIDOW-FORCED HEIRS—DESCENTS.

An order for the sale of the real estate of a ward, made upon the petition of a guardian, operates only upon the interest of the ward in the real estate held by him at the time of making the order, and does not operate upon the interest which vests in him, at the death of his mother, by virtue of the statute of descents, as her

forced heir. 2. ESTOPPEL-JUDGMENT-HEIRS—TITLE.

An estoppel by judgment exists only against the title existing at the time the judgment was rendered, and binds the party only in the capacity in which he was sued. Appeal from circuit court, Marshall county.

Parks & Parks and H. Corbin, for appellant. M. A. O. &0. M. Packard and C. P. Drummond, for appellees.

ELLIOTT, C. J. In 1865, Davis Garner died intestate, the owner of the real estate in controversy, leaving surviving him his widow, Mahala Garner, and six children. The widow subsequently married James Emmons, and died his wife in 1884. At the April term, 1873, Mahala Emmons, as the guardian of four of the children of her deceased husband, Davis Garner, filed a petition for the sale of the land of her wards, describing their estate therein as the undivided four-ninths part, and an order for the sale of the land was granted. At the same term she filed a second petition averring that a mistake had been made in describing the interest of her wards in the land, and alleging that it was an undivided four-sixths part, subject to her life-estate, and that it

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