in giving notice and in rendering the particular account of his loss to the company.

But it is claimed that appellees cannot recover because they failed to put in evidence the plans and specifications and proofs of loss mentioned in the testimony of the assured. Doubtless, appellant had the right to object to this testimony, and to insist that no evidence should be heard in relation to the plans and specifications, and the proofs of loss, until they were produced at the trial, or satisfactory reasons given by appellees for their non-production. Appellant made no objection to the testimony of the assured, and did not, as it might have done, call for and put in evidence the plans and specifications, and proofs of loss, mentioned by the assured.

Appellant's counsel say: "There can be no presumption that these papers were sufficient, when the plaintiffs, having them in their possession, or, at least, having the assured, in whose possession they were, present and testifying on the trial, failed to put them in evidence." This argument, however, may be used with equal force against the appellant, thus: It may be fairly presumed against the appellant "that these papers were sufficient," both in form and substance, because "having the assured, in whose possession they were, present and testifying on the trial," under cross-examination by its learned counsel, appellant did not ask the assured to produce "these papers," and "failed to put them in evidence."

It was shown by the evidence, as we have seen, that the assured tendered his plans and specifications, and the proofs of his loss, to appellant's agent, Rosenkrans, who refused to receive them; but made no objection, so far as the record shows, to either their form or substance. From the evidence, therefore, the court might have reasonably inferred that the plans and specifications, and proofs of loss, so tendered by the assured, were such as were called for by the conditions of his policy, and substantially complied with such conditions. Indiana Ins. Co. v. Capehart, 8 N. E. Rep. 285.

But it is claimed that Rosenkrans was the agent of the assured, and not of the appellant, by reason of the following condition in the policy, namely: "It is a part of this contract that any person, other than the assured, who may have procured this insurance to be taken by the company, shall be deemed to be the agent of the assured named in the policy, and not of this company, under any circumstances whatever, or in any transactions relating to this insurance." As applied to Rosenkrans and the policy here in suit, the condition quoted is, we think, absolutely null and void. By the terms of the policy, its validity and binding force were made to depend upon the counter-signature of J. L. Rosenkrans, "the duly-authorized agent of the company at Mount Vernon, Indiana." The condition quoted, no doubt, "crouched unseen in the jungle of printed matter with which a modern policy is overgrown," and it is a question, upon which the authorities are not strictly in harmony, whether such a condition can be made available as a defense for the company, after the loss has happened, against which the policy professed to guard. Van Schoick v. Niagara Fire Ins. Co., 68 N. Y. 434.

In Patridge v. Commercial Fire Ins. Co., 17 Hun, 95, in speaking of a condition very similar to the one last quoted, it is vigorously said by the supreme court of New York: "It is true that the policy contains that common provision, that any person, other than the assured who may have procured the insurance, is to be deemed an agent of the assured, and not of the company. This is a provision which deserves the condemnation of the courts whenever it is relied upon to work out a fraud, as it is in this case. The policy might as well say that the president of the company should be deemed the president of the assured. * * Such a clause is no part of a contract. It is an attempt to reverse the law of agency, and to declare that a party is not bound by his agent's acts. Whether one is an agent of another is a question of mixed law and fact, depending on the authority given expressly or

impliedly. And when a contract is, in fact, made through the agent of a party, the acts of that agent in that respect are binding on his principal." Indiana Ins. Co. v. Hartwell, 100 Ind. 566.

In the case in hand, we are of opinion that there is evidence in the record which tended to prove, and from which the court or jury might reasonably infer, that Rosenkrans was, and continued to be, in fact and in law, the dulyauthorized agent of appellant, and not of the assured.

The last point made by appellant's counsel, which needs to be considered under the rules of law applicable to this case, is thus stated: "There was no evidence whatever of the value of the house, or of the furniture that was burned, no evidence that either was of any value. There is an entire absence of proof upon this question." The point thus made by counsel seems to be sustained by the record of this cause. If the question of excessive damages, or of error in the assessment of the amount of appellee's recovery, had been properly saved in the record, and presented here by a proper assignment of error, appellant might, perhaps, have been in a condition to complain here of the assessment of appellees' damages; but this point we need not and do not decide, as the question is not before us. All that we need to decide is that, upon the case made by the evidence set out in appellant's demurrer, appellees were entitled to at least nominal damages. Where there is a demurrer to evidence and a joinder, the court may have the damages assessed by the jury conditionally, or the jury may be discharged, leaving the damages to be assessed by another jury should the demurrer be overruled. Andrews v. Hammond, 8 Blackf. 540; Lindley v. Kelley, 42 Ind. 294; Strough v. Gear, 48 Ind. 100.

In the case under consideration, when appellant demurred to appellees' evidence, the jury was discharged, leaving the damages to be assessed by another jury if the demurrer should be overruled. The record shows that, after the demurrer to the evidence was overruled, the assessment of appellees' damages was submitted to the court, neither party asking for a jury. The record is silent as to whether or not any evidence was heard by the court on the question of appellees' damages. In such a case, we must presume, in aid of the finding and judgment, that all proper and necessary evidence was heard by the court on the question of the assessment of appellees' damages.

We have found no error in the record of this cause. The judgment is affirmed, with costs.

(108 Ind. 595)

AYRES and another v. RANDALL and others.

(Supreme Court of Indiana. December 21, 1886.)

MORTGAGE-ASSUMPTION BY PURCHASER-CREDITOR MAY ENFORCE, WHEN.

Where a purchaser assumes the payment of a debt owing by his vendor to a third person, or where he expressly agrees to pay off an incumbrance out of the purchase price, such agreement inures to the benefit of the creditor, and may be enforced in equity; but this rule is not applicable where there is no promise to pay, but simply an agreement that the purchaser shall have that privilege if he so desires.1

Appeal from superior court, Allen county.

R. S. Robertson, for appellants. Randall & Vesey, for appellees.

MITCHELL, J. The following statement sufficiently indicates the questions presented for decision: On the seventh day of August, 1880, Joseph McCreary and wife conveyed certain real estate in the city of Fort Wayne to Mary C. Swayne, by deed of general warranty. To secure part of the purchase price, Mrs. Swayne and her husband executed a note for $300 payable to McCreary in one year, and secured it by a mortgage on the real estate con

1See note at end of case.

veyed. This note, which was not payable in bank, was assigned to the appellants, Ayres and Steel, September 1, 1880. The mortgagors afterwards, on the twenty-first day of March, 1881, conveyed the mortgaged premises to Perry A. Randall, by deed containing a special warranty. No mention of the McCreary mortgage was made in this latter deed, and the grantee did not assume its payment. Subsequently Ayres and Steel commenced suit against Randall and wife to foreclose the mortgage. Randall and wife answered in two paragraphs, in which they alleged, in substance, that, at the time the warranty deed was made by McCreary to Mrs. Swayne, the lot thereby conveyed was subject to certain liens or charges against the estate of one John Cartwright, who owned the lot at the time of his death, and whose estate remained unsettled. They alleged that it was agreed between McCreary and Mrs. Swayne, at the time the note and mortgage suit were executed, that whatever sums, if any, she should thereafter be called upon to pay to the administrator of Cartwright's estate in order to disincumber the lot from the debts owing by the estate should be applied to the discharge of the note. It was averred that Mrs. Swayne had been obliged to pay a sum in excess of the amount due on the note, and that the note was therefore paid. Pending the foreclosure suit, Randall and wife conveyed the lot by warranty deed to John Humble.

At the time the conveyance was made Randall executed to Humble the fo lowing agreement:

"This writing witnesseth that Perry A. Randall and wife have this day sold and conveyed, by warranty deed, lot 59, in Williams' addition to the city of Fort Wayne, Ind., to John Humble, for the sum of $1,350: and whereas, said Humble has paid down the sum of $800, and has executed his notes for $550, payable $200 on or before one year, $200 on or before two years, $150 on or before three years, secured by mortgage on said property; and whereas, there is a mortgage of $300 on said property executed by Samuel F. and Mary C. Swayne to Joseph McCreary, which the said Randall claims is paid; and the said Randall agrees with said Humble that he will cause said $300 mortgage to be satisfied of record within a year from this date, and, in case he does not, then said Humble may pay and discharge the same, and retain the same out of the said sum of $550 represented by said three notes secured by said mortgage, and he is not to pay any money on said sum of $550 until the said $300 mortgage is fully paid and satisfied. This writing is executed simultaneously with said notes, and is a part of the same. Any sum said Humble pays in discharge of said $300 mortgage shall be considered a payment on said three notes."

"December 2, 1881. [Signed]

"PERRY A. RANDALL."

On the ninth day of June, 1882, demurrers were overruled to the answers of Randall and wife in the foreclosure suit, and thereupon, the plaintiffs in that case refusing to plead further, judgment was given that they take nothing by their suit, and that the defendants recover their costs. Within one year from the rendition of this judgment, the proceeding set out in the record now before us was commenced.

A complaint consisting of three paragraphs was filed. The first paragraph was a complaint for a new trial of the foreclosure suit above referred to, on the ground of newly-discovered evidence material to the issues therein. The material evidence alleged to have been discovered since the rendition of the judgment was the agreement between Randall and Humble above set out. The second paragraph set out substantially the same facts as the first, except that the discovery of the agreement referred to is alleged to be material new matter, upon which a review of the former judgment is claimed. The pleadings, proceedings, and judgment in the foreclosure suit are made part of this v.9N.E.no.6-30

paragraph. The third paragraph is in the nature of an independent action against Randall and wife and Humble and wife, and is apparently predicated on the agreement above recited, a copy of which is annexed to the third paragraph as an exhibit. This paragraph recites the execution of the note and mortgage to McCreary, the assignment to the appellants, the institution of the suit to foreclose the mortgage, the conveyance by Randall to Humble pending the suit, the execution of the agreement between Randall and Humble, and that the appellants gave notice that they accepted the provisions of that contract. The plaintiffs pray judgment that Humble be required to pay the sum of $400, due them on their mortgage debt, and that a lien be declared in their favor on the mortgaged premises. A demurrer was sustained to the complaint, and from this ruling the case is brought here on appeal.

The appellants' argument in support of each paragraph of their complaint proceeds upon the theory that the agreement between Randall and Humble inured to their (appellants') benefit. They seek to assimilate the agreement to an assumption by a purchaser of an incumbrance upon the land purchased. They argue that in such a case the purchaser becomes the principal debtor, and personally liable for the debt, the payment of which he has assumed as part of the purchase price. The principle contended for is well established. Its application is confined to cases in which there is an agreement to pay a recognized incumbrance. It has no application under an agreement such as is here counted on. This agreement recites upon its face that one of the parties to it denied the existence of any debt to the appellants; that he claimed that it was paid off.

We agree that where a purchaser assumes the payment of a debt owing by his vendor to a third person, or where he expressly and in terms agrees to pay off an incumbrance on the land purchased, out of the purchase price, such agreement inures to the benefit of the creditor, and may be enforced in equity. The infirmity in the appellants' theory is the agreement set out does not support their claim. It contains no agreement to pay. It goes upon the theory that the appellants' debt had already been paid; that the agreement that stipulates, in case Randall should fail to secure the release of the mortgage within a year, Humble might pay it, was for the benefit of the latter, and not to provide for the payment of the mortgage as a subsisting debt. Before the expiration of a year it was adjudged that the mortgage was paid, as is shown by the record. This judgment was as effectual to discharge the mortgage as though it had been expressly adjudged that the mortgage should be canceled.

Without considering the paragraphs of the complaint in detail, it is sufficient to say the agreement which the appellants have discovered, and upon which the sufficiency of the several paragraphs depend, contains nothing upon which they can predicate a right to the relief asked in either paragraph of the complaint.

The judgment is affirmed, with costs.

NOTE.

MORTGAGE-ASSUMPTION BY VENDEE-PERSONAL LIABILITY. One who takes a deed subject to a mortgage, which as a part of the consideration he assumes and agrees to pay, becomes personally liable on such agreement, Hancock v. Fleming, (Ind.) 3 N. E. Rep. 254; Schley v. Fryer, (N. Y.) 2 N. E. Rep. 280; Fairchild v. Lynch, Id. 20; Davis v. Hulett, (Vt.) 4 Atl. Rep. 139; Conner v. How, (Minn.) 29 N. W. Rep. 314; Gage v. Jenkinson, (Mich.) 24 N. W. Rep. 815; Palmeter v. Carey, (Wis.) 21 N. W. Rep. 793; Cooper v. Foss, (Neb.) 19 N. W. Rep. 506; Luney v. Mead, (Iowa,) 15 N. W. Rep. 290; Smith v. Unger, (Mich.) 5 N. W. Rep. 1069; Martin v. Splivalo, (Cal.) 11 Pac. Rep. 485; which liability may be enforced by the person holding the mortgage, Fairchild v. Lynch, (N. Y.) 2 N. E. Rep. 20; Davis v. Hulett, (Vt.) 4 Atl. Rep. 139; Cooper v. Foss, (Neb.) 19 N. W. Rep. 506; Follansbe v. Menage, (Minn.) 9 N. W. Rep. 882; Smith v. Unger, (Mich.) 5 N. W. Rep. 1069: and on a foreclosure of the mortgage a personal decree may be entered against him for any deficiency, Davis v. Hulett, (Vt.) 4 Atl. Rep. 139; Gage v. Jenkinson, (Mich.) 24 N. W. Rep. 815; Palmeter v. Cary, (Wis.):21 N. W.

Rep. 793; Cooper v. Foss, (Neb.) 19 N. W. Rep. 506; Luney v. Mead, (Iowa,) 15 N. W. Rep. 290; Smith v. Unger, (Mich.) 5 N. W. Rep. 1069; Pellier v. Gillespie, (Cal.) 8 Pac. Rep. 185; S. C. 4. Pac. Rep. 1137.

(108 Ind. 506)

HOCKSTEDLER and others v. HOCKSTEDLER and others.

(Supreme Court of Indiana. December 17, 1886.)

1. ERROR, WRIT OF-JOINT ASSIGNMENT OF ERRORS.

A joint error is not available unless it is good as to all who join in it.

2. PLEADING-EXHIBITS-REFERENCE TO.

Where an exhibit is properly filed with and referred to in one paragraph of a pleading, it may be referred to by other paragraphs without filing it with each.

3. WILL-RULE IN SHELLEY'S CASE-HEIRS.

Where a life-estate is devised to a devisee named, and the same will devises the remainder to devisees who are named, and their lawful heirs, they (the devisees) will take an estate in fee.

4. SAME-ESTATE DEVISED IN CLEAR WORDS-NOT CUT DOWN BY DOUBTFUL WORDS. An estate granted in clear terms is not cut down by subsequent words of the will, unless they are equally as clear and decisive as those by which the estate was cre ated.

Appeal from circuit court, Howard county.

Brown & Antrim and O'Brien & Shirley, for appellants. C. E. Hendry, for appellees.

ELLIOTT, C. J. David Hockstedler commenced this suit to foreclose a mortgage executed to him by Jesse Richenback, and an answer was filed by Richenback confessing the cause of action, but averring that the money due on the mortgage was claimed by Eli T. Hockstedler. The answer asked that Eli T. Hockstedler should be made a party to the suit, and that the defendant be directed to pay the amount due on the mortgage into court. The prayer of the answer was granted, and the money was paid into court. Gabriel G. Hockstedler and Eli T. Hockstedler filed answers and cross-complaint, to which the appellee David Hockstedler successfully demurred. These parties also filed answers and cross-complaints as executors of the will of Gabriel Hockstedler, deceased, and Eli T. Hockstedler filed a separate answer as the trustee under the will of Gabriel Hockstedler, deceased. These answers and cross-complaints were also held bad on demurrer. Error is assigned on the rulings on the demurrers to the answers and cross-complaints of the appellants as executors, and on the ruling on the answer of Eli T. Hockstedler as trustee.

The errors are assigned by the appellants jointly, and, under the settled rules of practice, we can only regard those which affect all who join in the assignment. Thomson v. Madison, etc., Ass'n, 103 Ind. 279; S. C. 2 N. E. Rep. 735; Hinkle v. Shelley, 100 Ind. 88, and authorities cited; Boyd v. Anderson, 102 Ind. 217; S. C. 1 N. E. Rep. 724. We cannot, therefore, give any consideration to the assignment based on the ruling upon the demurrer to the separate answer of Eli T. Hockstedler.

It is contended by appellees' counsel that some of the pleadings demurred to are insufficient because they do not set out a copy of the will, which is made part of them by way of reference. This contention cannot prevail. The will is referred to in the pleadings as "Exhibit A," and it was sufficient to file it with one of the pleadings, and then refer to it as such an exhibit, without making it an exhibit to each paragraph of the pleadings. Where an exhibit is properly designated, it may be referred to in different paragraphs, without specifically making it a part of each of them; for when an exhibit is appropriately designated, and brought into the record by one paragraph of a