The complaint is assailed, for the first time, by assigning as error in this court that it does not state facts sufficient to constitute a cause of action. The complaint, as will be observed, is not specific, either as to the nature of Hoes' claim, the date of the sheriff's deed to him, the date of the sale by the sheriff, the date of the execution, or as to any judgment upon which it may have been issued. It does not appear from the averments in the complaint whether the sale by the sheriff to Hoes was prior or subsequent to the execution of the mortgage which Boyer is seeking to foreclose. These uncertainties, however, do not render the complaint insufficient, and especially do they not render it insufficient as against the assault upon it for the first time by the assignment of errors in this court. It was a sufficient challenge to Hoes to set up whatever title or interest he might have which would stand in the way of a foreclosure of the mortgage. Hose v. Allwein, 91 Ind. 497, 501; Barton v. Anderson, 104 Ind. 578, 581; S. C. 4 N. E. Rep. 420; Craighead v. Dalton, 105 Ind. 72; S. C. 4 N. E. Rep. 425; Carver v. Carver, 97 Ind. 497, 504; Ulrich v. Drischell, 88 Ind. 354; Stockwell v. State, 101 Ind. 1, 7; Lassiter v. Jackman, 88 Ind. 119; Pennsylvania Co. v. Rusie, 95 Ind. 236; Soice v. Huff, 102 Ind. 422; Owen School Tp. v. Hay, 8 N. E. Rep. 220; Stockwell v. State, supra, 17; Buchanan v. State, 106 Ind. 251; S. C. 6 N. E. Rep. 614.

When we have decided, as we do here decide, that it is not necessary, in a complaint for the foreclosure of a mortgage, to describe the interest which each defendant may have, or claim to have, in the land covered by the mortgage, we have, in effect, decided that it is not necessary to allege in all cases that the mortgage has been recorded. The purpose of the statute providing for the recording of mortgages is to protect innocent purchasers. As between the parties to the mortgage, and all persons with notice, the mortgage is good and effectual without being recorded. And hence, in a suit to foreclose the mortgage, where there are no defendants except the mortgagor, it is not necessary to allege in the complaint that the mortgage has been recorded. And so, where it is alleged that some of the defendants to the suit were subsequent purchasers with actual notice of the mortgage, it is not necessary to allege, also, that the mortgage has been recorded. Faulkner v. Overturf, 49 Ind. 265; Scarry v. Eldridge, 63 Ind. 44.

It has been held by this court, and correctly held, that in some cases it must be alleged in the complaint in the foreclosure suit that the mortgage has been recorded. In each of the cases, however, where such an allegation was held to be necessary, it appeared from the averments in the complaint that some of the defendants were purchasers and grantees of the mortgaged real estate subsequent to the mortgage. Magee v. Sanderson, 10 Ind. 261; Peru Bridge Co. v. Hendricks, 18 Ind. 11; Scarry v. Eldridge, supra; Faulkner v. Overturf, supra.

In the case of Martens v. Rawdon, 78 Ind. 85, cited by counsel, it was held that an answer by one of the defendants in a foreclosure suit, that he was a subsequent purchaser for value, and without notice of the mortgage, was a sufficient answer to a complaint in which there was no averment that the mortgage had been recorded. Whether, in that case, it was made to appear by the complaint that the defendant who filed the answer was a subsequent purchaser, cannot be determined from the opinion. The sufficiency of the complaint was not the question before the court, and nothing said in the opinion is authority for the proposition that, in all cases where there are defendants besides the mortgagors, the complaint must contain an averment that the mortgage has been recorded. If, in that case, it was made to appear by the averments in the complaint that the defendant Rawdon was a subsequent purchaser, then the further averment that the mortgage had been recorded, was necessary. If, on the other hand, it did not appear from the allegations in the complaint that he was a subsequent purchaser, an averment that the mortgage had been recorded was not necessary to the sufficiency of

the complaint. The answer was sufficient for the complaint, not because the case fell within the rule that a bad answer is good enough for a bad complaint, but because it contained the affirmative statement, not inconsistent with anything alleged in the complaint, that the defendant, being a subsequent purchaser, had no notice of the mortgage. That allegation might have been met with a reply that the mortgage had been recorded.

We think the correct rule is that, where it is shown by the complaint in a foreclosure suit that any of the defendants are subsequent purchasers, the complaint must contain an averment that they purchased with actual notice, or that the mortgage was recorded within the time fixed by the statute, or before the sale and conveyance of the mortgaged property; and that, where it does not appear from the allegations in the complaint in such a case that any of the defendants are subsequent purchasers, it is not necessary to the sufficiency of the complaint that it shall contain an averment that the mortgage has been recorded. The recording of the mortgage could be of no consequence to a defendant whose title, or claim of title, antedates the mortgage. Neither could it be of any consequence to a defendant who is simply a judgment creditor, and in no sense an innocent purchaser.

In the case before us, as we have seen, the complaint does not show that appellants, or either of them, were subsequent purchasers. It is alleged that Hoes claims to have some sort of title to the land through a sheriff's sale, but it is not alleged, nor in any way shown, that that sale was subsequent to the mortgage. Without in any way defining Hoes' claim of title, except to characterize it as having no foundation either in law or equity, the complaint is a challenge to him to set up his title. This he did by an answer which shows that the sheriff's sale upon which he relies antedates the mortgage about one year. Beyond question the complaint is good as against Hoes. We do not, therefore, extend this opinion to determine its sufficiency as against the appellants Waleski and Meiser. The errors are jointly assigned by all of the appellants, Hoes, Waleski, and Meiser, and must be well taken as to all in order to be available for any one of them. Hinkle v. Shelley, 100 Ind. 88.

The pleadings filed by Hoes, and the other appellants, Waleski and Meiser, defendants below, and the proof in their behalf, show that the sheriff's sale upon which they predicate their title to the land described in the mortgage antedates the mortgage about one year. Hence it is of no consequence whatever to them when the mortgage was recorded, or that it has ever been recorded. Hoes had the land sold by the sheriff of Jasper county as the property of Lyman U. Williams, in satisfaction of a judgment which he recovered against him (Williams) in the superior court of Marion county, in April, 1875, upon a promissory note dated in 1873. He purchased the land at the sheriff's sale, and received his deed from the sheriff in 1878. Appellant Waleski afterwards purchased the land from Hoes, and received from him a warranty deed therefor. He afterwards sold and conveyed one-half of it to appellant Meiser. The land was originally purchased from one Shuler, and by him conveyed to Frances E. Williams, wife of Lyman U. Williams, in September, 1875. She and her husband executed the mortgage in suit, in August, 1878. Appellants filed cross-complaints, alleging therein that the land was purchased from Shuler by Lyman U. Williams, and paid for by him, and that the conveyance of it to his wife, Frances E., was in fraud of his creditors, of whom Hoes was one. In these cross-complaints, they asked that the land might be adjudged to have been the property of Lyman U., and that their titles thereto might be quieted, as against Boyer, the mortgagee, plaintiff below, and appellee here.

Was the land the property of Lyman U., and conveyed to his wife, Frances E., in fraud of Hoes, a creditor? That is the main question of fact in the The court below found that the land was the property of Frances E., and decreed a foreclosure of the mortgage. This court cannot reverse the

case.

judgment upon the evidence. It is shown by the evidence that Lyman U. and Frances E. Williams were married in 1851; that some time thereafter he borrowed from her about $300; that subsequently he repaid, and again borrowed it at different times; that at different times she had it loaned to other persons; that in 1871 the wife received from the estate of a deceased sister about $600, which the husband also borrowed; that in 1875, at the time the deed for the land in question here was made to the wife, he owed her, for the moneys thus borrowed, about $1,000; that he purchased the land from Shuler, and paid therefor about $400, and had it conveyed to the wife as a payment to her of that amount upon his indebtedness to her, and that she accepted it as such. The evidence thus shows that Lyman U. Williams gave his wife a preference as one of his creditors. Such preference may be made, and will be upheld, if untainted with fraud. Grubbs v. Morris, 103 Ind. 166; S. C. 2 N. E. Rep. 579. As against the finding of the court below, this court cannot say that there was any fraud in the conveyance of the land to the wife, Francis E.

It is said in argument that the money which she had in 1851 became the property of the husband by virtue of the marriage, under the law as it then stood. A sufficient answer to that is that the husband treated the money as hers, repaid it to her, and again borrowed it at various times thereafter, and that he also owed her $600 borrowed from her in 1871. Proctor v. Cole, 104

Ind. 373, 383; S. C. 3 N. E. Rep. 106, and 4 N. E. Rep. 303. Upon the whole case, as presented by the record, the judgment ought to be and is affirmed, with costs.

(103 N. Y. 437)

SOLOMON, Adm'x, etc., v. MANHATTAN RY. Co.

(Court of Appeals of New York. November 23, 1886.) NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-BOARDING MOVING TRAIN-NONSUIT.

The boarding or alighting from a moving train is presumably a negligent act per se; and it is not error to order a nonsuit, in an action to recover damages for death, where the evidence shows that the deceased, and two others who were before him, attempted to enter a moving train upon an elevated railroad; that the conductor opened the gate for the other two, and they succeeded; that the deceased in attempting to board the train, put his foot upon the step, caught hold of the stanchions of the gate, but, the conductor closing it upon him, he was carried against a projection, and received the injuries which caused his death. MILLER and DANFORTH, JJ., dissenting.

Action to recover damages for the death of the plaintiff's intestate through the defendant's negligence.

The action was originally tried at a circuit of the supreme court, and motions to dismiss the complaint made at the close of the plaintiff's case, and, at the close of the whole case, were denied by the court, and the case sent to the jury. A verdict was rendered for the plaintiff, but, upon appeal by the defendant, the judgment thereon was reversed by the general term, and a new trial ordered. See 31 Hun, 5. The decision of the general term was affirmed by the court of appeals. On the second trial at the circuit no actual examination of witnesses took place, but the record of the former trial, except the charge to the jury, was, by consent of counsel, submitted to the court, and a motion made upon the whole case to dismiss the complaint. The motion was granted, and the plaintiff appeals.

Geo. Putnam Smith, for appellant, Solomon, Adm'x, etc. Robt. E. Deyo, for respondent, Manhattan Ry. Co.

ANDREWS, J. It is undisputed that the train was in motion at the time the plaintiff's intestate attempted to enter it. It had been brought to a stop, according to the usual custom, on reaching the Chatham Square station, for the purpose of discharging and receiving passengers, and had started again

before the deceased and the two men in front of him, hurrying from the Third-avenue train across the bridge, and down the steps to the station platform of the Second-avenue road, had reached the rear of the first car. It is also undisputed that the conductor, who was standing on the platform between the first and second cars, had given the signal to start the train, and had closed, or attempted to close, the gate before the first of the three men reached the car. The train, at this time, as we have said, had started, and was slowly moving, but with a constantly accelerated speed. The two men in advance of the intestate succeeded in safely boarding the train. The intestate was a few feet behind them. He attempted to get onto the platform of the car after the others. The evidence tends to show that he took hold of the stanchions of the car with both hands, and placed one foot upon the car platform, and was in the act of passing onto the car when the conductor closed the gate against the deceased, who, clinging to the car, or, possibly, being caught in some way by the gate, was carried along a few feet, until his body came in contact with a water-pipe extending horizontally at the end of the station platform, and received the injuries of which he subsequently died.

There is a conflict of evidence as to whether the gate had been fully closed before the two men in front of the intestate reached the car. The conductor testified that it was closed at that time, and was pushed open by them. Witnesses for the plaintiff testified that the conductor was closing the gate as the two men approached the car, and opened it for them to enter, and then closed it as the intestate was attempting to get on. There is also some discrepancy in the evidence as to the distance from the car platform to the water-pipe at the end of the station platform when the intestate reached the car. One of the plaintiff's witnesses, who saw the whole transaction, testified that the distance was four or five feet, and other witnesses testified that it was ten feet. Wilson, a witness for the plaintiff, testified: "Although my glance was momentary, I saw him [deceased] constantly from the time he put his foot on the car until he struck the projection. In my best judgment, that may have been five feet, but I think it was about four feet, the distance." Haller, also a witness for the plaintiff, was asked: "The whole occurrence, from the time the conductor pulled the bell to start the car until Mr. Solomon struck against the projection and fell, occupied but a very short space of time, did it not?" He answered: "A very little time; quicker than I can tell you."

In view of the undisputed fact that the car was moving when the deceased attempted to enter it, it is evident that the obstruction against which the deceased was carried was perilously near, and that a collision was inevitable if the deceased should fail to get onto the car, and should be carried along a few feet in the position in which he was when the gate was closed. The station platform was lighted, and "everything was clear." The deceased had been accustomed to take the train in the evening at this station for more than a year. His son, who usually accompanied his father, testified that "the train stops very sharp, and goes off very quick." The trains ran every five minutes. There can be no doubt that the deceased was familiar with the surroundings, and was acquainted with the manner of operating the trains.

We are of opinion that the nonsuit was properly directed. It must be assumed that the deceased, when he attempted to enter the car, knew that it was in motion. We cannot know what was passing in his mind, or of what existing facts he was actually cognizant, except by inference. But what others saw and knew in respect to matters equally open to his observation must be presumed to have been seen and known by him. Especially is this presumption a reasonable one in respect to matters which common prudence required him to know and observe before he attempted to enter the car. Knowing, then, as must be inferred, that the train was in motion, he took the risk of the attempt to board it. The movement of the train was itself notice to him that the time for receiving passengers had passed. He un

doubtedly thought he could board the train in safety, and, except for the act of the conductor in closing the gate, the attempt would probably have been successful. It does not appear that the deceased knew of the attempt of the conductor to close the gate before the two men who preceded him entered the car. But he was in a position to have seen it, and the act was observed by the other witnesses. We are of the opinion that the attempt of the deceased to enter the train, under the circumstances disclosed, was in law a negligent act which contributed to his death.

It is, we think, the general rule of law, established by the decisions in this and other states, as claimed by the learned counsel for the respondent, that the boarding or alighting from a moving train is presumably and generally a negligent act per se; and that, in order to rebut this presumption, and justify a recovery for an injury sustained in getting on or off a moving train, it must appear the passenger was, by the act of the defendant, put to an election between alternate dangers, or that something was done or said, or that some direction was given to the passenger by those in charge of the train, or some situation created, which interfered, to some extent, with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety. McIntyre's Case, 37 N. Y. 287, and Filer's Case, 49 N. Y. 47, were cases of injury sustained by passengers,—in the one case by going from one car to another by direction of one of the train-men to get a seat while the train was in motion, and in the other by leaving a moving car at a station by direction of a brakeman, who directed the plaintiff, a woman, to get off, saying that the train would not stop. In Burrows v. Erie Ry. Co., 63 N. Y. 556, the court reversed a judgment recovered for an injury to a passenger in alighting at his station from a moving car; and in Morrison v. Erie Ry. Co., 56 N. Y. 302, the court reversed a verdict for the plaintiff under very similar circumstances. It is said by RAPALLO, J., in Burrows v. Erie Ry. Co., that "the cases in which a recovery has been allowed, notwithstanding that the passenger undertook to leave the car while in motion, are exceptional, and depend upon peculiar circumstances. In short, as we now understand the rule established by the decisions, it is presumptively a negligent act for a passenger to attempt to alight from a moving train; and it is not sufficient to rebut the presumption that the train-men acquiesced in the action of the passenger, or that the company violated its duty or contract in not stopping the train, or that to remain on the train would subject the passenger to trouble or inconvenience; but that to excuse such an act, and free the plaintiff from the charge of contributory negligence, there must be a coercion of circumstances which did not leave the passenger in the free and untrammeled possession of his faculties and judgment."

Negligence, no doubt, is usually a question of fact, of which the jury must inquire; but the inference of negligence in a given case may be so clear and convincing that the judge may direct a verdict. The conclusion that it is prima facie dangerous to alight from a moving train is founded on our general knowledge and common experience, and it is akin to the conclusion, now generally accepted, that it is in law a dangerous and therefore a negligent act, unless explained and justified by special circumstances, to attempt to cross a railroad track without looking for approaching trains. In boarding a moving train there is generally less excuse than in alighting from one. The party attempting it is not often under the same stress of circumstances as frequently happens in the former case. He may be compelled to wait for another train; but this is an inconvenience merely, which does not justify exposing himself to hazard.

In the Phillips Case, 49 N. Y. 177, the plaintiff was thrown against a platform in attempting to board a train while in motion, and a nonsuit was sustained in this court. In the present case the intestate was familiar with the situation. He must have known that, according to the ordinary rules, the time