heirs had in the locus passed, whether acquired by inheritance from William Eldred, or as devisees under the wills of both William Eldred and Frederick A. Eldred; and that the petitioners also acquired, under the deed of July 3, 1893, from Mary A. Eldred and Jennie L. Minor, all their interest in the locus. The reference to the will was only for the purpose of indicating one source of the grantors' title. Whitman v. Whitman, 7 Metc. 268; Moran v. Somes, 154 Mass. 200, 28 N. E. 152, and cases cited.

Exceptions overruled.

(158 Ind. 626)

DOWNHAM et al. v. HOLLOWAY. (Supreme Court of Indiana. May 27, 1902.)

INSANE PERSONS-DEEDS-DISAFFIRMANCE LIMITATION OF ACTIONS.

Where a person, who was and remained of unsound mind and not under guardianship, executed a deed to land in 1876, and the grantee held adversely thereunder until the death of the grantor in 1898, the right of the heirs of the insane person to recover was not barred by the statute of limitations, as the deed was voidable only, and the right of action did not accrue until after disaffirmance.

Appeal from circuit court, Hamilton county; Edgar A. Brown, Special Judge.

Action for partition by Charlotta Downham and others against Levi Holloway. From a judgment for defendant, plaintiffs appeal. Transferred from the appellate court. Reversed.

Christian, Christian & Cloe, for appellants. Kane & Kane, for appellee.

MONKS, J. It appears from the pleadings that on September 28, 1876, Nancy A. Holloway, a person of unsound mind, not under guardianship, conveyed 80 acres of real estate in Hamilton county, Ind., to appellee, her son, who took and held exclusive and adverse possession thereof under said deed continuously until the commencement of this action on December 19, 1898. The consideration named in said deed was $2,500, but no part thereof has ever been paid. Said Nancy A. Holloway died intestate in July, 1898. After her death, and on November 28, 1898, and before the commencement of this action, appellants, heirs of deceased, disaffirmed said deed on the ground that said Nancy was of unsound mind when she executed the same, and commenced this action for partition and to quiet their title as such heirs to their shares of said real estate. The statute of limitations was pleaded in bar of the action. If the same began to run when the deed was executed, on September 28, 1876, the judgment must be affirmed; if not, it must be reversed. The deed of a person of unsound mind not under guardianship is not void, but only voidable. Insurance Co. v. Sellers, 154 Ind. 370372, 56 N. E. 97, 77 Am. St. Rep. 481, and cases cited; Thrash v. Starbuck, 145 Ind. 673, 44 N. E. 543; Ashmead v. Reynolds, 127 Ind.

441, 444, 26 N. E. 80. Such voidable deed vests the title to the real estate in the grantee the same as an unimpeachable deed until disaffirmed by the grantor on becoming sane, or by his heirs after his death. Schuff v. Ransom, 79 Ind. 458, 465; Nichol v. Thomas, 53 Ind. 42, 53. So long as the grantor remains of unsound mind, he has no power to affirm or disaffirm such deed. Nichol v. Thomas, 53 Ind. 53; Insurance Co. v. Sellers, 154 Ind. 370, 372, 56 N. E. 97, 77 Am. St. Rep. 481, and cases cited. It is the act of disaffirmance which renders such voidable deed a nullity, and not the proceedings which may be taken to give force to the disaffirmance after it has been made. Ashmead v. Reynolds, 127 Ind. 441, 444, 26 N. E. 80; Long v. Williams, 74 Ind. 115, 119. Until such deed is disaffirmed, there is no right of action; in other words, the action does not accrue until after the disaffirmance. Insurance Co. v. Sellers, 154 Ind. 370, 372, 373, 56 N. D. 97, 77 Am. St. Rep. 481, and cases cited; Ashmead v. Reynolds, 127 Ind. 444, 26 N. E. 80; Fay v. Burditt, 81 Ind. 433, 437, 42 Am. Rep. 142; Schuff v. Ransom, 79 Ind. 458, 465; Nichol v. Thomas, 53 Ind. 42, 53; Welch v. Bunce, 83 Ind. 382, 385; Richardson v. Pate, 93 Ind. 423, 426-428, 47 Am. Rep. 374. In this case the grantor, Nancy A. Holloway, continued of unsound mind until her death. She therefore had no power to disaffirm said deed nor maintain any action for said real estate in her lifetime. The statute of limitations will not begin to run until the cause of action accrues. Busw. Lim. pp. 37, 38; Ang. Lim. (6th Ed.) § 42; Wood, Lim. (3d Ed.) § 117; King v. Carmichael, 136 Ind. 20, 28, 35 N. E. 509, 43 Am. St. Rep. 303, and cases cited. It follows that the statute of limitations did not begin to run when said deed was executed to appellee. The case must, therefore, be reversed.

Judgment reversed, with instructions to sustain appellants' demurrer to the fourth and ninth paragraphs of appellee's answer, and for further proceedings not inconsistent with this opinion.

(158 Ind. 668)

BERRY v. CHICAGO, I. & L. RY. CO, (Supreme Court of Indiana. May 27, 1902.) APPEAL RECORD-BILL OF EXCEPTIONS.

Appellant filed a præcipe as provided by Burns' Rev. St. 1901, § 661 (Rev. St. 1881, § 649; Horner's Rev. St. 1901, § 649), designating what papers and entries the clerk should copy into the transcript on appeal, but not requesting the clerk to certify the original bill of exceptions containing the evidence; and the general certificate of the clerk did not include it, and the transcript did not show that said bill was ever filed with the clerk after being signed by the court, as required by Burns' Rev. St. 1901, § 638a (Acts 1897, p. 244), though following what purported to be an original bill of exceptions was a special certificate that the bill was filed, but the seal of the court was not affixed to said certificate. Held. that the bill was not in the record, and could not be considered.

Appeal from circuit court, Clark county; James K. Marsh, Judge.

Action by James H. Berry against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for defendant, plaintiff appeals. Transferred from the appellate court under section 1337u, Burns' Rev. St. 1901 (Acts 1901, p. 590). Affirmed.

H. W. Phipps, for appellant. E. C. Field, W. S. Kinnan, and M. Z. Stannard, for appellee.

MONKS, J. The only questions argued by appellant depend for their determination upon the evidence, which, appellee insists, cannot be considered because not in the record. Appellant filed a præcipe as provided in section 661, Burns' Rev. St. 1901 (section 649, Rev. St. 1881, and section 649, Horner's Rev. St. 1901), and designated what papers and entries the clerk should copy into the transcript and certify to this court. Said præcipe did not request the clerk to certify the original bill of exceptions containing the evidence. The general certificate of the clerk to the transcript in no way embraces, identifies, or refers to said original bill of exceptions, nor is there any entry among the proceedings contained in the transcript showing that said bill of exceptions was ever filed with the clerk of the trial court, or in open court, after it was signed by the judge, as required by section 638a, Burns' Rev. St. 1901 (Acts 1897, p. 244). Immediately following what purports to be an original bill of exceptions is a special certificate that said bill was filed May 1, 1900, but the seal of the court is not affixed to said certificate. It has been uniformly held by this court, upon substantially the same facts as those above stated, that the original bill of exceptions containing the evidence was not in the record, and could not be considered. Chestnut v. Railroad Co. (last term) 62 N. E. 32; R. G. Marcy Mfg. Co. v. Flint & Walling Mfg. Co. (No. 19,431, last term), 63 N. E. 207; Johnson v. Johnson, 156 Ind. 592594, 60 N. E. 451, and cases cited; Carpenter v. Schaeffer, 154 Ind. 694, 57 N. E. 105. As there is nothing in the record showing that any ruling of the trial court was erroneous, the judgment is affirmed. Judgment affirmed.

(158 Ind. 638)

VINK, County Treasurer, v. WORK. (Supreme Court of Indiana. May 27, 1902.) TAXATION-CHARITABLE INSTITUTIONS-IN

DIVIDUAL PROPRIETORS-EXEMPTIONS. Under Burns' Rev. St. 1901, § 8412, exempting from taxation every building used and set apart for educational or charitable purposes by any individual and the land on which it is situate, the property of an individual which is equipped as a permanent institution for the care and education of orphan and homeless children is exempt from taxation, though it is maintained as a private enterprise,

and is sustained by contributions from counties and by private donations.

Appeal from circuit court, Marshall county; A. C. Capron, Judge.

Action by Julia E. Work against Charles C. Vink, treasurer of Marshall county. There was a judgment in favor of plaintiff, and defendant appealed to the appellate court, from. whence the cause was transferred under Act March 13, 1901 (Acts 1901, p. 590). Affirmed.

Martindale & Stevens, for appellant. Samuel Parker, for appellee.

DOWLING, J. This was a proceeding by the appellee against the appellant, the treasurer of Marshall county, to enjoin the collection of certain taxes alleged to have been assessed against the property of the appellee without authority of law. The complaint was in two paragraphs. A demurrer to each was overruled. The court made a special finding of the facts, and stated its conclusions of law thereon, to each of which conclusions the appellant excepted. Motion for

a new trial overruled, and judgment for appellee on the conclusions of law.

By his assignment of errors the appellant questions the correctness of the several rulings of the court adverse to him. The facts set out in the first paragraph of the complaint were these: The appellee was the owner of a tract of land in Marshall county, Ind., which was particularly described, containing less than 40 acres. She owned said land prior to April 1, 1899, and within six months preceding that date she constructed buildings thereon, and equipped the same as and for a home and school for orphan and indigent children. From and after February 17, 1899, said real estate, with all the improvements and personal property thereon, constituted an institution for the care and education of orphan and homeless children, for whom trained and competent nurses and teachers were there provided by appellee. The compensation of appellee for keeping and educating the said children and defraying the expenses of the said institution was obtained from municipalities and from charitable bodies or persons upon whom the duty of maintaining the poor was imposed by law, or who had voluntarily assumed the responsibility of caring for those admitted to the said school. Appellee was the sole owner of the said property and institution, and had the exclusive management and control thereof. The said property was assessed for taxation in Center township, in said county, for the year 1899, upon a valuation of said land at $450, upon the said improvements at $750, and upon said personal property at $340. This assessment was placed upon the tax duplicates of the county by the auditor, and returned by him to the appellant, the treasurer of said county, who has the same, and threatens to collect the taxes so assessed against said property to the amount of $19.23, and who will do so un

Appeal from circuit court, Vanderburg county; H. A. Mattison, Judge.

Proceedings supplemental to execution by Dina Sauer against Eberhardt P. Schenck and others. From a judgment in favor of the defendants, plaintiff appeals. Transferred from appellate court under section 1337u, Burns' Rev. St. 1901. Affirmed.

W. W. Ireland, for appellant. Spencer & Brill, for appellees.

HADLEY, J. Joseph Schenck died the owner of real estate in Vanderburg county, leaving children, appellant and appellees, Eberhardt, Joseph, and Frank Schenck, and three others, as his only heirs at law. On July 26, 1898, appellant and her sister Elizabeth Marx instituted in the Vanderburg circuit court against the appellees herein their suit for partition of the lands inherited from their deceased father,-the plaintiffs alleging that they and the defendants, except Eberhardt Schenck, were the owners of the land as tenants in common, and each entitled to an undivided one-sixth thereof in severalty; that the defendant Eberhardt Schenck had been advanced by his father his full share of the estate. The record does not disclose whether the defendants, or either of them, filed an answer; but such proceedings were had that the court found and decreed that each of the plaintiffs and defendants was the owner and entitled to a share equal in value to one-seventh of the whole, and ordered that the plaintiffs have set off to each of them, in severalty, her share. Certain described parcels were set off to the plaintiffs to have and to hold in severalty, and the "remainder of said lands" set apart to the five defendants, including Eberhardt Schenck, as their five-sevenths in value, without partition. Pending the partition suit, to wit, August 27, 1898, Eberhardt Schenck conveyed to his brothers, Joseph and Frank, by quitclaim deed, all of his right, title, and interest, being the undivided one-seventh of the described lands; the expressed intention being "to convey to said grantees all the right, title, and interest of the said Eberhardt Schenck in and to the estate, real and personal, of his father," as one of the heirs at law, for the sum of $900. It does not appear from the record whether this conveyance was made before or after the order of partition. It was, however, made before the filing and confirmation of the report of partition. On April 25, 1899, appellant recovered a judgment against her brother Eberhardt, and issued execution thereon May 4, 1899, which was returned nulla bona May 10, 1899. This proceeding is supplemental to execution issued on said judgment upon affidavit that Joseph and Frank Schenck, appellees, have in their possession and claim ownership to certain described real estate which is the property of Eberhardt Schenck, which appellant prays

may be subjected to sale for payment of her judgment. Finding and judgment for appellees. The only error assigned is the overruling of appellant's motion for a new trial.

The real question for decision is the conclusiveness of the partition proceeding upon the title and ownership of the inherited interest of Eberhardt Schenck in his father's estate, and arises upon the admission in evidence of his deed purporting to convey that interest to his brothers. Without basis therefor in the record, the argument on both sides assumes that the conveyance in question was executed before the interlocutory order of partition was made; the appellant contending that the decretal order of partition was an adjudication of Eberhardt's title and ownership upon the facts as they existed at the time the decree was entered, and is therefore conclusive, and, being subsequent to the alleged conveyance, the deed was improperly admitted in evidence to impeach the decree, while, on the other hand, appellees insist that the title of Eberhardt was not called in question by any pleading or issue in the partition action, and was not, therefore, either established or overthrown. It will be borne in mind that the judgment invoked by appellant was rendered in an ordinary action for partition. The complaint was in the usual form, alleging the common source of title, and common equal interests of plaintiffs and defendants as children of the decedent, and praying that the plaintiffs' shares be parted from the others, and set off to them in severalty. It is true that it is averred that Eberhardt Schenck had been advanced his full share of the estate, and that the remaining lands should be divided among the other six heirs. But this averment went only to the question of whether or not Eberhardt had already in possession his one-seventh part of the estate, and in no wise questioned his or any one else's right or title in the common property of the estate. It is well settled in this state that, when the question in the case is simply one of dividing the common estate inherited from the ancestor, no question of title among the partitioners is settled by the decree. Issues may be formed in such cases in the usual way, and titles established and quieted among the parties; but in the absence of such issues there can be no adjudication beyond a division of the property. Luntz v. Greve, 102 Ind. 173, 26 N. E. 128; Blake v. Minkner, 136 Ind. 418, 425, 36 N. E. 246; Finley v. Cathcart, 149 Ind. 470, 48 N. E. 586, 63 Am. St. Rep. 292; Thompson v. Henry, 153 Ind. 56, 51 N. E. 109; Fordice v. Lloyd, 27 Ind. App. 414, 60 N. E. 367. In this case it is not shown that the title of Eberhardt was in issue, and we cannot presume that it was. Goss v. Wallace, 140 Ind. 541, 39 N. E. 920; Green v. Brown, 146 Ind. 1, 9, 44 N. E. 805. There is no pretense that the conveyance of Eberhardt to his brothers Joseph and Frank

was fraudulent, or for less than full value. It was accomplished eight months before appellant recovered her judgment against Eberhardt, and hence no lien had attached. The deed to appellees Joseph and Frank Schenck was properly admitted in evidence as tending to prove their ownership, and that the land conveyed thereby was not subject to sale for payment of appellant's judgment. The decision of the court is sustained by the evidence, and is not contrary to law. The motion for a new trial was correctly overruled.

Judgment affirmed.

(158 Ind. 628)

STONE v. STONE.

(Supreme Court of Indiana. May 27, 1902.)

DIVORCE-JUDGMENT-CUSTODY OF CHILDREN -CONTINUING JURISDICTION.

1. Objections to the validity, and not the form and substance, of a judgment, are no grounds for a motion to modify.

2. Under Burns' Rev. St. 1901, § 1058, imposing on the court decreeing a divorce the duty to provide for the guardianship, custody, and education of minor children, the court has continuing jurisdiction during the minority of the children to make from time to time such orders and modifications thereof as are expedient, without a reservation of such power in the judgment.

Appeal from circuit court, Sullivan county: W. W. Moffett, Judge.

Suit by Della Stone against Edgar B. Stone. There was a decree awarding plaintiff a divorce and custody of the children, and from an order refusing to modify the judgment the defendant appeals. Transferred from appellate court, under section 1337u, Burns' Rev. St. 1901. Affirmed.

Chaney & McNabb, for appellant. John T. Hays, W. H. Hays, and John S. Bays, for appellee.

On

HADLEY, J. Appellee was divorced from appellant, upon her petition, for failure to provide and cruel and inhuman treatment, in July, 1897. The parties had two female children, aged four and seven years, and in the decree the court awarded to the plaintiff the care and custody of the younger, and to the defendant the older, with certain mutual rights of visitation, said custody to continue until the further order of the court. March 20, 1900, appellant filed his petition for a modification of the order, alleging that the visiting of the children as provided in the order was an injury to their proper training and discipline, made them restless and dissatisfied, and interfered with their attendance at school, and that their best interests required modification of the order, awarding to defendant permanently and finally the full and complete custody and control of the children, of the oldest especially, and he asked for an order accordingly. This petition appellee answered by a general denial, and she also filed a cross petition,

averring that appellant was not a fit person to have the custody of the children, or either of them: that he has no home for them, or either of them, and is about to remove from the state, and by his rough treatment has caused great and permanent injury to the nervous system of Opal, whose custody he had had; that she (appellee) has a good and comfortable home for both of said children, is able to support and care for them,— and prays the modification of said order giving to her the permanent and uncondition-' al custody of both. After hearing the evidence, the court found for appellee on her cross petition, and rendered the following judgment: "It is therefore ordered, adjudged, and decreed that Della Stone be, and she is hereby, given the custody, care, and maintenance of Fleeta and Opal Stone without condition. And it is further adjudged that the costs accrued in the trial of this cause. taxed at dollars, be paid by the petitioner, Edgar B. Stone." The usual phrase, "until the further order of the court," was not appended. Whereupon appellant filed his motion for a modification of the order upon these grounds: (1) The court had no legal authority to make a permanent order and final judgment in said cause. (2) Said judgment deprives the defendant of the right to open said cause, and for any reason question the custody of the children. (3) To modify said judgment so as to give the custody of said children to their mother "until the further order of the court." This latter motion to modify was overruled, which action of the court presents the only question involved in this appeal.

The first two specifications are addressed to the validity of the judgment, and not to its form or substance, and are not, therefore, grounds for a motion to modify. Railway Co. v. Eggers, 147 Ind. 299, 45 N. E. 786; Evans v. State, 150 Ind. 651, 655, 50 N. E. 820, and authorities cited.

It is contended by appellee that the third ground is not sufficiently specific to present any question under the decisions of this court (see Russ v. Russ, 142 Ind. 471, 473, 41 N. E. 941, and cases cited above); but assuming, without deciding, that it is, the motion was properly overruled for another reason. The legal force and effect of the judgment is precisely the same as if the words "without condition" had been omitted. Conditions which vary the ordinary effect of judgments must be stated. They are never implied. Therefore, by eliminating the words complained of from the order, its effect is to award to appellee the right to the exclusive custody and control of the children, and it cannot be doubted that the court had the power to make such an order, if under the evidence the interests of the children required it. Section 1058, Burns' Rev. St. 1901; Stonehill v. Stonehill, 146 Ind. 445, 45 N. E. 600. If, as alleged, appellant was cruel and immoral, without a home for the