(1) Has the court which renders a decree of foreclosure after sale of the mortgaged premises for less than the amount of the judgment authority to appoint a receiver to collect and keep, for the further order of the court, the rents accruing during the year allowed for redemption, as against the owner of the property sold? (2) Is the mortgage creditor, who is also the purchaser at the foreclosure sale for less than the amount of his judgment, entitled to the rents accruing during the year for redemption, as against the owner, for application to the unpaid balance of his judgment?

In

It should be regarded as settled in this state, since the statute of 1881 (section 779, Burns' Rev. St. 1901), that a purchaser at a general judgment or foreclosure sale in his relation as a purchaser, is not entitled to rents accruing for one year after his purchase. The owner of the real estate sold is entitled to the use and rents for that period, as an inseparable incident to his right of possession. vestment Co. v. Marlin, 151 Ind. 630, 52 N. E. 198, and cases cited. But it is equally well settled that in foreclosure proceedings an insolvent mortgagor or owner, who does not redeem, and who holds possession by a tenant, as in this case, during the year for redemption, is not entitled to the rents and issues of the property as against a mortgagee purchaser, whose judgment is not wholly paid; and in such case a receiver of the rents may be appointed after the sale, or before, upon proof of inadequacy of the security, and insolvency of the debtor. Section 1236, cls. 4, 6, Burns' Rev. St. 1901; Merritt v. Gibson, 129 Ind. 155, 27 N. E. 136, 15 L. R. A. 277; Harris v. Investment Co., 146 Ind. 265, 269, 45 N. E. 328; Sweet & Clark Co. v. Union Nat. Bank, 149 Ind. 305, 49 N. E. 159; Investment Co. v. Marlin, 151 Ind. 630, 52 N. E. 198. In theory, a purchaser of real estate at sheriff's sale gets all he bargained for when he receives the deed and possession at the end of a year. He bids on the property knowing that possession and enjoyment will be denied him for a year, and submits his bid upon his judgment of the present value of the estate, as affected by the postponed enjoyment. In such case the possession for a year is neither bid on nor sold. So when he gets his money and interest back by redemption, or receives possession of the property purchased, in accordance with the terms of his contract, he is destitute of any legal or equitable claim for rent against any one. It is otherwise with a mortgagee who becomes the purchaser at his own foreclosure sale. A mortgage creating a lien on specific property for the payment of a particular debt or the performance of a particular duty is a matter of free contract. The law neither prohibits nor promotes. It authorizes. The contract of the mortgagor is to pay the debt on the terms specified, or surrender to the mortgagee the particular property, not reserving to himself any right therein, except to redeem within the period fixed

by law. And when the mortgagor has made default, and the court has decreed a forfeiture of the pledge, such a decree carries with it, by virtue of the contract, a forfeiture by the mortgagor of the entire estate, and all rights and incidents connected therewith, except the right to redeem by making full payment of the secured debt within the statutory limit. The lien of the mortgage is not merged in the decree, nor discharged by the sale (Merritt v. Gibson, supra), but continues to operate upon the rents and profits for an unpaid balance until actual possession has been bestowed upon the mortgagee purchaser. That no personal judgment against appellant accompanied the decree of foreclosure makes no difference. The absence of such judgment does not alter the force and effect of the judgment in rem, nor effect the continuing lien of the mortgage until possession was obtained by the purchaser.

1. Whether a married woman is a surety or a principal on a note is to be determined, not by the form of the contract, nor from the basis upon which the transaction was had. but by whether she received, in person or in estate, the benefit of the consideration on which the contract rests.

2. Where the only consideration for the note of a married woman is property conveyed to another, the title not resting in her, she is only a surety, and the note is void as to her.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by Louisa C. E. Cook against Minnie L. Buhrlage and others. From a judgment against Buhrlage and in favor of defendant Wilhelmine Theine, plaintiff appeals Transferred from the appellate court under section 1337u, Burns' Rev. St. 1901 (Acts 1901, p. 590). Affirmed.

Wm. V. Rooker, for appellant. Edward B. Raub, for appellees.

woman.

MONKS, J. Appellant brought this action upon several promissory notes executed by appellees for real estate conveyed to appellee Buhrlage. The complaint does not disclose the fact that appellee Wilhelmine Theine was, when she executed said notes, a married It became a question, under the issues, whether or not appellee Theine was a principal or surety on said notes. The jury returned a general verdict in favor of appellant against appellees, and answered interrogatories submitted by the court. Over appellant's motion for a new trial, the court rendered judgment on the general verdict against appellee Buhrlage, and in favor of ap

1. See Husband and Wife, vol. 26, Cent. Dig. §§ 350, 351, 623, 630.

pellee Theine, on the answers to interrogatories, notwithstanding the general verdict. These rulings of the court are assigned for

error.

The jury found, in answer to interrogatories submitted by the court, that appellee Wilhelmine Theine was, when she executed the notes sued upon, a married woman; that the only consideration for said notes was certain real estate conveyed by appellant to appellee Buhrlage, who executed the note sued upon. It has been decided by this court that whether or not a married woman is a surety or a principal on a note is to be determined, not from the form of the contract, nor from the basis upon which the transaction was had, but from the inquiry as to whether she received, in person or in estate, the benefit of the consideration upon which the contract rests. Field v. Noblett, 154 Ind. 357, 360, 56 N. E. 841, and cases cited; Lackey v. Boruff, 152 Ind. 371, 376, 53 N. E. 412, and cases cited; Leschen v. Guy, 149 Ind. 17, 19, 48 N. E. 344; Crisman v. Leonard, 126 Ind. 202, 203, 25 N. E. 1101, and cases cited; Thacker v. Thacker, 125 Ind. 489, 490, 491, 25 N. E. 595; Potter v. Sheets, 5 Ind. App. 506, 32 N. E. 811, and cases cited; Dickey v. Kalfsbeck, 20 Ind. App. 290, 293, 50 N. E. 590, and cases cited. It was said in Crisman v. Leonard (page 203, 126 Ind., and page 1101, 25 N. E.): "It may be conceded that a married woman cannot purchase property, and become bound for the payments thereof, when the title vests in another; but she may purchase property, and bind herself for its payment, where the title vests in her.

Chand

ler v. Spencer, 109 Ind. 553, 555, 10 N. E. 577." The jury found in this case that the sole consideration for the notes sued upon was property conveyed by appellant to appellee Buhrlage. As the title to said property did not vest in appellee Theine, but vested in another, and the same was the sole consideration for said notes, she, being a married woman, was only surety on said notes, and the same were void as to her. Crisman v. Leonard, 126 Ind. 203, 25 N. E. 1101; Chandler v. Spencer, 109 Ind. 553, 555, 10 N. E. 577; Thacker v. Thacker, 125 Ind. 490, 491, 25 N. E. 595.

Where the obligation sued upon is executed by the married woman alone, although secured by a mortgage upon her separate real estate, or where the obligation sued upon is that of the husband and wife, and is secured by a mortgage on real estate held by them by entireties, there is no presumption that she is surety, or in the latter case that the consideration obtained was not used for the benefit of the joint estate, and the burden is upon her to allege and prove that she executed the note and mortgage as surety, and not as principal; and the complaint in such case is sufficient, even if it disclose that she was a married woman when the note and mortgage were executed, without the allega

tion of any special facts showing that she was principal, and not surety. Field v. Not lett, 154 Ind. 357, 359, 360, 56 N. E. 841; Cummings v. Martin, 128 Ind. 20, 23, 24, 27 N. E. 173; Crisman v. Leonard, 126 Ind. 202, 203, 25 N. E. 1101; Security Co. v. Arbuckle, 119 Ind. 69, 71, 21 N. E. 469; Miller V. Shields, 124 Ind. 166, 24 N. E. 670, 8 L. R. A. 406. But it has been held, in effect, that, in an action on a contract executed by a married woman and another, other than the kind above mentioned, if the complaint discloses that she is a married woman, it must also allege facts showing that she was principal, and not surety, on said contract, or the complaint will not be sufficient to withstand her separate demurrer for want of facts; that, if such complaint does not disclose that she was a married woman when she executed the contract sued upon, she may answer that fact in bar of the action, to which the plaintiff may reply by alleging facts showing, notwithstanding such coverture, she was bound as principal upon such contract. Field v. Noblett, 154 Ind. 357, 359, 56 N. E. 841; Crisman v. Leonard, 126 Ind. 202, 203, 25 N. E. 1101; Vogel v. Leichner, 102 Ind. 55, 60, 61, 1 N. E. 554; Nixon v. Whitley, Fasler & Kelly Co., 120 Ind. 360, 22 N. E. 411; Cupp v. Campbell, 103 Ind. 213, 217, 218, 2 N. E. 565; Brown v. Will, 103 Ind. 71, 2 N. E. 283; Cummings v. Martin, 128 Ind. 20, 23, 24, 27 N. E. 173; Thacker v. Thacker, 125 Ind. 489491, 25 N. E. 595; Potter v. Sheets, 5 Ind. App. 506, 32 N. E. 811; Dickey v. Kalfsbeck, 20 Ind. App. 290, 293, 50 N. E. 590; Arnold v. Engleman, 103 Ind. 512, 3 N. E. 238.

We have carefully considered the evidence, and cannot say that the same does not fully support the answers of the jury to the interrogatories.

Finding no error in the record, the judgment is affirmed.

(159 Ind. 549)

INTERNATIONAL BUILDING & LOAN ASS'N v. RADEBAUGH et al.1 (Supreme Court of Indiana. June 18, 1902.) BUILDING ASSOCIATIONS-LOANS-PREMIUMSMATURITY OF SHARES-TIME.

1. Acts 1885, § 6, p. 83, relative to building associations, required loans to be made to members of an association in open meeting; the premium to be paid at one time or in installments. Acts 1897, p. 287, provided that it should be lawful for the borrower and association to agree on a given rate of premium in addition to interest, without bidding. Held, that the act of 1897 did not legalize the taking of two premiums, one in gross and one per annum, payable monthly.

2. A certificate of stock of a building association provided that it would pay $100 for each share at the end of 62 years from date. The certificate also provided that at stated periods the profits arising from interest, premiums, fines, and other sources should be apportioned among the shares in good standing. and whenever the monthly payments made on a share, together with the profits apportioned to such share, should amount to $100, such 'Rehearing denied, 65 N. E. 577.

share should be deemed to have matured, and that no share should be deemed to have matured until the sum of all payments thereon, together with the profits apportioned to said share, should amount to $100. Held that, notwithstanding the promise in the certificate to pay $100 for each share at the end of 62 years, the other provisions therein showed that the shares did not mature until after the dues paid and profits apportioned to each share of stock amounted to $100.

Appeal from circuit court, Blackford county; E. C. Vaughn, Judge.

Suit by the International Building & Loan Association against Jonas P. Radebaugh and others. From a decree for defendants, complainant appeals. Transferred from the appellate court under section 1337u, Burns' Rev. St. 1901 (Acts 1901, p. 590). Affirmed.

Aaron M. Waltz and Harding & Hovey, for appellant.

MONKS, J. Appellant, a building and loan association organized under the laws of this state, sued appellees upon a promissory note for $3,000, and to foreclose a mortgage on real estate given to secure said note. A trial of said cause resulted in a judgment in favor of appellees. The note and mortgage were executed May 28, 1891, to secure a loan of $3,000 to a shareholder of appellant. Thirty shares of stock in appellant association were also assigned to appellant as collateral security for said loan. At the time the loan was made by appellant, the statute (section 6, p. 83, Acts 1885) required the loans to be made to the members of the association in open meeting; the premium to be paid at one time or in installments. In this case there was no bidding, but the loan was made, and the contract provided for the payment of a premium of 5 per cent. per annum on $3,000, payable monthly. The borrower, however, received only $2,700; $300 being deducted and retained by appellant as a gross premium. Appellant could only require a premium in gross or in installments. It had no power to require

both.

It is insisted, however, by appellant, that Acts 1897, p. 287, § 9 (being section 44631, Burns' Rev. St. 1901), legalizes contracts for the payment of premiums without bidding. It was so decided by this court in Association v. Wall, 153 Ind. 554, 55 N. E. 431; but said section does not profess to legalize the taking of two premiums,-the one in gross and the 5 per cent. per annum premium, payable monthly.

This action was commenced January 19, 1899. The monthly dues on stock were paid for six years and eight months.

The pre

mium and interest were paid for six years and seven months. This, appellees insist. paid the note, under the terms of the contract. Appellant insists that, notwithstanding its promise in the certificate of stock to pay $100 for each share of stock at the end of 62 years, the other provisions therein, when construed therewith, show that the same does not mature until after the dues

paid and profits apportioned to each share of stock amount to $100,-its face value,although more than 61⁄2 years from the date thereof. The court seems to have adopted appellant's theory, which we think was the correct one. The certificate of stock provided that appellant would pay $100 for each of said 30 shares at the end of 61⁄2 years from May 1, 1891, the date of said certificate. Said certificate also provided that "at stated periods the profits arising from interest, premiums, fines and other sources shall be apportioned among the shares, in good standing and whenever the monthly payments made on shares, together with the profits apportioned to such share shall amount to $100 such share shall be deemed to have been matured and no more monthly payments shall be required. No share of stock of this association shall be deemed to have matured until the sum of all payments thereon, together with the profits apportioned to said share, shall amount to the full sum of $100." There was evidence given at the trial that dues had been paid on said 30 shares of stock for 80 months, amounting to $1,800, and that profits amounting to $1,039.06 had been apportioned to said stock, as provided in the certificate of stock. To these sums add the $300 deducted and retained by appellant when the loan was made, and we have the amount of $3,139.06, which is $139.06 more than the amount required to mature said stock. Under such circumstances, this court cannot say that the finding was contrary to law, or not sustained by sufficient evidence. Judgment affirmed.

(159 Ind. 82)

THACKER v. CHICAGO, I. & L. RY. CO. (Supreme Court of Indiana. June 20, 1902.) RAILROAD EMPLOYE-INJURIES-VICE PRIN

CIPALS-SECTION FOREMAN-DECLARA

TION-SUFFICIENCY.

1. Burns' Rev. St. 1901, § 7083, subd. 4. providing that a railroad company shall be liable for injuries to its employés caused by the negligence of a fellow servant while performing a duty owed by the corporation to the employé injured, and while the latter is obeying an order from one having authority to direct, not only does not enlarge the company's common-law liability, but restricts it, so that the employé injured cannot recover unless he was obeying an order of a superior at the time of his injury.

2. A section foreman while transporting his men on hand cars to a place where they are to work does not act as a vice principal in giving an order to stop.

3. A declaration in an action by a section hand against his employer for injuries caused by a fall from a hand car while he was being transported thereon to his work, which alleged that the foreman, who was on a car behind the one on which plaintiff was riding, ordered the front car to be stopped, and that the brakemen stopped it without warning plaintiff, as it was their duty to do, is insufficient ou demurrer, even if the foreman was acting as vice principal in giving the order, for failing to charge the foreman with any negligence.

4. Under Burns' Rev. St. 1901, § 7083, subd. 3, making a railroad company liable to its employés for injuries resulting from the act or

omission of any person done or made in obedience to the particular instructions given by any person delegated with the authority of the corporation in that behalf, the railroad company is not liable where the order is a proper one, but is negligently performed by a fellow servant receiving it.

5. A declaration in an action by a section hand for injuries received by a fall from a hand car on which he was being carried to his work, which alleged that plaintiff was on the car pursuant to an order from his foreman, to which he was bound to conform; that while the car was going 20 miles per hour the foreman, who was on another car, negligently and without warning plaintiff, ordered the brakemen of the car plaintiff was on to stop it suddenly; that obedience to the order was, to the foreman's knowledge, calculated to increase plaintiff's hazard and to throw him off, and did throw him off and injure him; and that he had no means of knowing that the car was to be stopped as it was, or that the foreman would give such order, sufficiently alleged negligence on the part of the foreman and injury to plaintiff while conforming to his order, within Burns' Rev. St. 1901, 7083, subd. 2, making a railroad company liable for injuries to employés from the negligence of any other employé to whose order the injured employé at the time of his injury was bound to, and did, conform.

Appeal from circuit court, Monroe county; Wm. H. Martin, Judge.

Action by Charles Thacker against the Chicago, Indianapolis & Louisville Railway Company. From a judgment in favor of defendant, plaintiff appeals. Transferred from the appellate court under section 1337u, Burns' Rev. St. 1901 (Acts 1901, p. 590). Reversed.

Walter E. Hottel and East & East, for appellant. E. C. Field and W. S. Kinnan, for appellee.

MONKS, J. Complaint by appellant for personal injuries, in four paragraphs. Demurrer to each paragraph for want of facts sustained. Appellant refusing to plead further, judgment was rendered against him. The assignments of error not waived call in question the action of the court in overruling the demurrer to the first, second, and fourth paragraphs of the complaint. Appellant was a section man engaged in the line of his duty | with an extra gang of men running a hand car to Bryfogle, a station on appellee's road. One McGill was section foreman, and had ordered the men to make this trip for the purpose of doing work at said place. Appellant and the other men in the gang were working under the orders of said foreman. It required two hand cars to carry the men. Appellant, with others, was riding on the front hand car, and following this was another hand car, on which the foreman and other laborers were riding. The front car, on which appellant was riding, had two men who acted as brakemen, and who could check, stop, or control the movement of the hand car by pressing their feet on a brake; that it was the duty of said brakemen, when the signal was given by the foremen, McGill, to put on or take off the brake and otherwise

control said car. In addition to the above, it is alleged in the first paragraph of the complaint that in approaching Bryfogle they were going down grade at a speed of 15 or 20 miles an hour, when "McGill gave a sig nal to said brakemen to stop; that it was the duty of said brakemen, and each of them, when said signal to stop was given, to notify those on the car of said signal, and give them time to catch hold of something or stay themselves in some way, but that when said signal to stop was given said brakemen, without giving any warning or notice of any kind, or before any warning or notice could be given, said brakemen at once threw on the brake in a careless and reckless manner, bringing said car to such a sudden stop that appellant was pitched violently forward off said hand car" and injured. Appellant says this action was brought under the employers' liability act, and that the first paragraph is founded on the fourth subdivision of section 7083, Burns' Rev. St. 1901 (section 5206s, Horner's Rev. St. 1901), which reads as follows: "That every railroad *

shall

be liable for damages for personal injuries suffered by any employé while in its service, the employé so injured being in the exercise of due care and diligence * Fourth. Where such injury was caused by the negligence of any person in the service of said corporation who has charge of any signal, telegraph office, switch yard, shop, round house, locomotive engine, or train upon a railway, or where such injury was caused by the negligence of any person, co-employé or fellow servant engaged in the same common service in any of the several departments of the service of any such corporation, the said person, co-employé or fellow servant at the time acting in the place and performing the duty of the corporation in that behalf, and the person so injured obeying or conforming to the order of some superior at the time of such injury, having authority to direct." Appellant concedes that said first paragraph would be bad at common law, because it shows that his injury was caused by the negligence of the brakemen, his fellow servants, but insists that the same is sufficient under that part of said subdivision not in italics. At common law a master owes certain duties to his servants which concern their safety, and if he intrusts such duties to one of his servants, who negligently performs the same, by reason of which another servant is injured without his fault, the master is liable therefor, because the servant to whom such duties are intrusted is, in the performance thereof, a vice principal, and not a fellow servant. A vice principal, therefore, is one who represents the master in the discharge of those duties which the master owes to his servants. If, however, the servant whose negligence caused the injury was not at the time discharging a duty which the master owed to his servants, but simply a duty which the servant owed to

the master, he was a fellow servant with others engaged in the common business, and the master would not be liable for any injury inflicted upon such fellow servants by reason of his negligence. Justice v. Pennsylvania Co., 130 Ind. 321, 325, 30 N. E. 303, and cases cited; Hodges v. Wheel Co., 152 Ind. 680, 687, 688, 52 N. E. 391, 54 N. E. 383; and cases cited; Robertson v. Railroad Co., 146 Ind. 486, 488, 45 N. E. 655; Mitchell v. Robinson, 80 Ind. 281, 284, 41 Am. Rep. 812; Krueger v. Railroad Co., 111 Ind. 51, 52, 11 N. E. 957; Coal Co. v. Young, 117 Ind. 520, 522, 20 N. E. 423; 12 Am. & Eng. Enc. Law, (2d Ed.) pp. 946, 948. In this state there is a clear distinction between a superior servant and a vice principal. A superior servant is generally one who has authority to direct and control other servants, and may or may not be charged with any of the duties which the master owes his servants. Whether or not one is a vice principal does not in any way depend upon his rank. Justice v. Pennsylvania Co., supra; Hodges v. Wheel Co., supra; Robertson v. Railroad Co., supra; 12 Am. & Eng. Enc. Law (2d Ed.) pp. 948, 949. Before the passage of said act, it was held as to most, if not all, of the persons described in that part of said fourth subdivision printed above in italics, for whose negligence railroads are made liable, that they did not perform any duty which a railroad owed its servants, and that they were, therefore, mere fellow servants, for whose negligence railroads were not liable. That part of said subdivision has, therefore, enlarged the class of vice principals. Railroad Co. v. Little, 149 Ind. 167, 48 N. E. 862; Railway Co. v. Houlihan, 157 Ind. 494, 499, 60 N. E. 943, 54 L. R. A. 787. It is evident, however, that the part of said subdivision upon which appellant bases his first paragraph of complaint only makes railroads liable for the negligence of such persons as are performing duties which it owes its servants in certain cases. Such persons were vice principals, and employés injured by their negligence in the discharge of such duties could recover therefor before said act was passed. It is clear that such part of said subdivision is the mere enactment of a liability which already existed at common law, and that the class of vice principals was not increased thereby. It is not as broad as the common-law liability, because the right to recover is limited to persons injured while obeying or conforming to the order of some superior at the time of the injury having power to direct. The right | to recover for injuries caused by the negligence of vice principals is not so limited at common law. It follows that, if said appellant's first paragraph of complaint is not good at common law, which he conceded it is not, it is not good under the part of said fourth subdivision upon which he claims it is founded. It was held by this court in Justice v. Pennsylvania Co., 130 Ind. 325,

326, 30 N. E. 304, that a section foreman of a railroad having power to employ and discharge section hands is a vice principal when employing and discharging such employés, but that he is a fellow servant in his control of such men after their employment. The court said in that case: "That a section foreman may be a vice principal is not doubted. In this case he was a vice principal in the matter of hiring and discharging hands, for the master owes it as a duty to exercise reasonable care not to employ any but careful men and to discharge those who prove to be negligent. In the hiring and discharging of the men he was in the performance, therefore, of a duty which the master owed to his servants, and was, while so engaged, a vice principal. But it was not so in transporting the men to and from their work. In the matter of moving the hand car and their tools to and from the locality at which they worked upon the track they were in the discharge of a duty which they owed the master, and were, therefore, fellow servants. Wilson v. Railroad Co., 18 Ind. 226; Railroad Co. v. Tindall, 13 Ind. 366, 74 Am. Dec. 259; Sullivan v. Railroad Co., 58 Ind. 26; Gormley v. Railroad Co., 72 Ind. 31; Robertson v. Railroad Co., 78 Ind. 77, 41 Am. Rep. 552; Car Co. v. Parker, 100 Ind. 181; Railroad Co. v. Adams, 105 Ind. 151, 5 N. E. 187; Boyce v. Fitzpatrick, 80 Ind. 526; Capper v. Railroad Co., 103 Ind. 305, 2 N. E. 749." Even if McGill, the foreman, in giving the signal to stop the hand car, was performing a duty which the master owed its servants, and was, as to the same, a vice principal, yet no liability is shown by the allegations of said first paragraph, because no facts showing negligence on the part of said foreman are alleged therein. The court did not err in sustaining the demurrer to the first paragraph of complaint.

The second paragraph alleges the same facts as the first, but charges that the foreman, "McGill, gave the signal to said brakemen to put on brakes; that the brakemen in obedience to the particular instruction given by said foreman, McGill, who was delegated with the authority of the corporation in the behalf of said company, put on the brakes and brought the car to such a sudden stop that appellant was pitched violently out of said car" and injured; "that said injury resulted from the act of said brakemen done in obedience to the particular instruction given by said McGill, who was delegated with the authority of the corporation in that behalf." Appellant insists that said paragraph is sufficient under that part of the third subdivision of said section 7083, Burns' Rev. St. 1901 (section 5200s, Horner's Rev. St. 1901), which is as follows: "Where such injury resulted from the act or omission of any person done or made *** in obedience to the particular instructions given by any person delegated with the authority of the corporation in that behalf." Said subdivision 3 is the