which defendant pleaded a counterclaim. | main the property of appellants. It is also From a judgment for defendant on its counterclaim, plaintiffs appeal. Affirmed. Transferred from Appellate Court under act of 1901 (Laws 1901, c. 259), being section 1405, Burns' Ann. St. 1908. Albert Bettinger and J. W. Billman, for appellants. Hord & Adams, for appellee. averred in said second paragraph of answer that, as soon as the lumber arrived. it was inspected, and found to be, and was, short in quantity, not the kind sold, was decayed, highly discolored, doty, and wholly unfit for the said purpose for which it was sold, and that appellee immediately refused to accept the same, and gave immediate notice to appellant of such defects, and that the lumber was in appellee's yards subject to appellants' orders. Said second paragraph of answer was sufficient to withstand said demurrer for want of facts, and the court did not err in overruling the same. Benjamin on Sales (Bennett's 7th Ed. 1899) § 600, p. 589, §§ 895, 896, pp. 946, 947. MONKS, J. This action was brought by appellants against appellee to recover for 25,768 feet of lumber alleged to have been sold to appellee by appellants. The complaint is in the usual form of action upon account. Appellee filed an answer in two paragraphs; the first paragraph being a general denial and the second that the sale of lumber was conditional, and that appellee has refused to accept the lumber because the conditions of the sale had not been complied with by appellants and notice to appellants of such refusal. Appellee also filed a third paragraph, which was a counterclaim, demanding a judgment for damages for freight and other expenses paid on account of said lumber. Appellants' demurrer to said second and third paragraphs was overruled by the court. To said second and third paragraphs general denials were filed. A trial of said cause resulted in a verdict in favor of appellee for $162.50 on its counterclaim, and that the lumber in controversy "belongs [5] Nor have appellants claimed in the to the plaintiffs." Over appellant's motion points stated in their brief that the court for a new trial and motion in arrest of judg-erred in overruling their motion for a new ment, judgment was rendered in favor of appellee. [1] It is first contended by appellants that the court erred in overruling the demurrer to said second and third paragraphs of answer. Said demurrer to the second and third paragraphs was on the ground that "neither of said paragraphs stated facts sufficient to constitute a cause of defense to plaintiffs' complaint or to the cause of action stated in plaintiffs' complaint." This form of demurrer, while it may have been appropriate to an answer, was not appropriate to the third paragraph, which was a counterclaim, and was properly overruled as to said paragraph for that reason. Duffy v. England (No. 22,084) 96 N. E. 704, this term, and cases cited; Blue v. Capitol National Bank, 145 Ind. 518, 43 N. E. 655. [3, 4] Appellants insist that "the court erred in striking out certain portion of depositions," and in giving "certain instructions requested by appellee." Such rulings of the court can only be questioned by assigning them as causes for a new trial. Appellants have not set out in their brief any motion for a new trial or the substance thereof, nor any ground assigned therefor. as required by rule 22 (55 N. E. v) of this court. Appellants have therefore waived any right to question said rulings if made. Hall v. McDonald, 171 Ind. 9, 17, 85 N. E. 707, and cases cited. trial. They have thereby waived the determination of any question in regard to said instruction, and the correctness of the action of the court in sustaining the motion to strike out certain portions of said depositions. Marion Trust Co. v. Blish, 170 Ind. 686, 699, 700, 703, 84 N. E. 814, 85 N. E. 344, 18 L. R. A. (N. S.) 347; Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 348, 467, 78 N. E. 1033. [6] Other questions are argued which depend for their determination upon the evidence, which is not in the record, for the reason that the bill of exceptions was filed after the term when the cause was tried, and no time was given beyond the term to file a bill of exceptions at the time the motion for a new trial was overruled. Huntington Brewing Co. v. Miles, 96 N. E. 145, and cases cited; Stremmel v. Gaar, Scott & Co. (No. 22,105) 96 N. E. 703, this term, and cases cited; Rose v. State, 171 Ind. 672, 87 N. E. 103. [2] The second paragraph of answer was not "for a breach of the warranty of said lumber," as claimed by appellants, but was drawn upon the theory that the sale of the lumber was a conditional sale; that the lumber was to be of a certain kind and was sold for a certain purpose, and to be suitable for such purpose, all of which is alleged in detail, and that, if not as represented, there was to be no sale and the lumber would re-firmed. Having determined all the questions properly raised by appellants' statement of points in their brief and finding no error (Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 438, 467, 78 N. E. 1033), the judgment is af HOME NAT. BANK et al. v. PEOPLE'S STATE BANK. (No. 7,910.) set up that she had signed the mortgages in question as surety for her husband, and asking that no part of her separate estate (Appellate Court of Indiana, Division No. 2. be exhausted to pay the mortgages or the Nov. 28, 1911.) 1. EXECUTORS AND ADMINISTRATORS (§ 437*)— LIENS-FORECLOSURE-TIME FOR SUING. Under Burns' Ann. St. 1908, § 2847, prohibiting suit to enforce a judgment or mortgage lien against a decedent's estate until after one year from his death, a court is without jurisdiction of a suit prematurely brought, and may dismiss on its own motion, or on application of a party. [Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 437.*] 2. APPEAL AND ERROR (§ 185*)-OBJECTIONS NOT URGED BELOW-JURISDICTIONAL MAT TERS. Questions of jurisdiction may be raised at any time, even first on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1178; Dec. Dig. § 185.*] 3. EXECUTORS AND ADMINISTRATORS (§ 437*)— LIENS-FORECLOSURE-TIME FOR SUING. Under Burns' Ann. St. 1908, § 2847, prohibiting suit to enforce a lien against a decedent's estate until after one year after his death, in a premature suit to foreclose a mortgage, a cross-complaint by a judgment creditor does not lie to compel the mortgagee to first exhaust the widow's separate estate, to enable the judgment creditor to enforce his lien upon the residue of the mortgaged property. [Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 437.*] 4. EXECUTORS AND ADMINISTRATORS (§ 272*)RIGHTS OF WIDOW. A widow, having joined her husband in mortgages, under which she received no consideration, signing them merely to cover her inchoate interest in his lands, is entitled, before her vested interest as a widow in the one-third part of the land can be touched, to have exhausted in payment of the mortgages the husband's personal estate, not required to pay claims expressly preferred by statute, and the proceeds from the sale of the remaining two thirds, which does not descend to her. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1052-1057; Dec. Dig. 272.*] judgment liens. [1, 2] It appears from the record and the briefs of the parties that the main action to foreclose a mortgage lien against the estate of William Hay, deceased, and the cross-actions to enforce judgment liens against the same, were brought within a year after the death of William Hay. Such actions may not be brought until a year has elapsed after the death of the decedent. Section 2847, Burns' Statutes 1908. If such time has not elapsed, there is no cause of action. "The law declares that such suits shall not exist, or, in other words, that there shall be no cause of action." Lovering v. King, 97 Ind. 130. Since there was no cause of action, the court had no jurisdiction; and it became proper for the court to dismiss the actions of its own motion, or to allow the parties to dismiss. The court first discovered its lack of jurisdiction in the main action after it had made a special finding of facts, and had heard argument thereon. It then allowed plaintiff to dismiss its complaint. This was proper, for questions of jurisdiction may be raised at any time, even first on appeal. Elliott's Appellate Procedure, §§ 470, 498, and cases there cited; Ewbank's Manual of Practice, §§ 2, 7, and 136. Under the statute referred to above (section 2847, supra), the court also had no jurisdiction over the crossactions. Since the court below had no jurisdiction, this court can have none, and the appeal must be dismissed. [3] Appellant now claims that its crosscomplaint does not fall within the statutory prohibition, as seeking to enforce a lien. By this cross-complaint, it seeks, however, to compel appellee, People's State Bank, to first exhaust the interest of Florence M. Hay in the mortgaged real estate, to the end that Appeal from Circuit Court, Monroe Coun- the only fund to which it can resort for the ty; Jas. B. Wilson, Judge. Action by People's State Bank against the Home National Bank and others. From the judgment the Home National Bank and others appeal. Appeal dismissed. Ira M. Sharp, Duncan & Batman, and Robert G. Miller, for appellants. Thomas J. Sare and Miers & Corr, for appellee. collection of its judgment may not be exhausted by the senior lien, or that cross-complainant be subrogated to the rights of the People's State Bank against Florence M. Hay. Its prayer in effect is, that appellee, People's State Bank, should be required to dispose of the separate estate of the widow, so that appellant would be enabled to enforce the lien of its judgment upon the residue of the mortgaged property. This amounts to an effort upon the part of appellant to en IBACH, P. J. Appellee, People's State Bank, brought suit against all the other parties to this appeal to foreclose two mortgag-force its lien upon the real estate in suit. es on certain parcels of real estate, executed by William Hay and Florence Hay, his wife. Appellant Home National Bank and others of the defendants filed cross-complaints, as the holders of judgment liens on the said real estate, and defendant Florence M. Hay also filed a cross-complaint against all the other parties, in which she and the trial court seems to have accepted and acted upon this theory when he announced, as conclusions of law upon the facts found, that the law was against cross-complainants; that they could not enforce their liens until one year from the death of William Hay; and that their actions should abate. Ohio) ALBRIGHT v. BOYD 711 [4] However, the dismissal of the appeal [ Indiana, that said judgment was rendered can in no wise harm appellant, for in no after the issuance of summons in the action event, upon the facts found by the court, and the personal service thereof on Albright could it have obtained the relief sought in in the state of Indiana, and that the judgThe special finding ment remains unsuspended and wholly units cross-complaint. shows that Florence M. Hay, at the time of paid. In his answer Albright alleged that the execution of the mortgages, was the the judgment on which the plaintiffs counted wife of William Hay, and received no part had been recovered on a promissory note exof the consideration for them, but signed the ecuted in Darke county by Albright & Son, mortgages merely to cover her inchoate in- Thomas H. New, and himself, he being sureSuch being ty merely, and he further alleged the circumterest in her husband's lands. the case, she is entitled, before her vested stances, under which he claimed it was exinterest as a widow in the one-third part of ecuted, to show that he was fraudulently the real estate which comes to her can be induced to execute it as surety, and to show touched, to have exhausted for the payment that he had equitable rights against other of the mortgages, the personal estate of her parties to the note. He also alleged circumhusband, not required for the payments of stantially that, when suit was brought upon claims expressly preferred by statute, and the note in Hancock county, he was by false the proceeds from the sale of the remaining representations decoyed from his home in two-thirds part of his real estate, which Darke county, Ohio, into Wayne county, Ind., does not descend to her as a widow. Shobe where the summons from the circuit court of v. Brinson, 148 Ind. 285, 47 N. E. 625, and Hancock county was personally served on him; that without pleading to the merits of cases there cited. said action, and expressly disclaiming all intention of appearing therein, he filed his motion therein to quash the summons and set aside the return thereof, because he had been so decoyed into the state of Indiana for the purpose of effecting such personal service; but that the court, after hearing said motion, overruled the same and rendered the judgment upon which this action was founded. The appeal is dismissed. ALBRIGHT v. BOYD et al. (Syllabus by the Court.) 1. JUDGMENT (§ 822*)-FOREIGN JUDGMENT SERVICE OBTAINED BY CONCLUSIVENESS FRAUD. -- In an action brought in this state to rea judgment rendered in another cover upon state, the defendant, having been there personally served with process and having there unavailingly challenged the jurisdiction of the court over his person upon the ground that he had been fraudulently decoyed into that state for the purpose of effecting personal service upon him, will not be permitted here to challenge the validity of such service. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1454-1500; Dec. Dig. § 822.*] 2. JUDGMENT (§ 822*)-RES JUDICATA. Such judgment having been recovered upon a promissory note, the defendant will not be permitted here to plead against the plaintiff rights arising out of his relations to other makers of such note, and depending upon facts which were existent when the original suit was brought, whether such relations and facts were there pleaded or not. [Ed. Note. For other cases, see Judgment, Error to Circuit Court, Darke County. ror. The defendants in error brought suit in the To this answer the plaintiffs interposed a general demurrer, which was overruled in the court of common pleas. The plaintiffs then filed a reply, admitting that when Albright signed the note he was a resident of Ohio, and denying all other allegations of the answer. A trial was had, and the jury returned a general verdict for the plaintiffs. With their general verdict they returned special findings supporting the allegations of the answer respecting the relations of the parties to the note, all being facts existing at the time of the bringing of the suit in Hancock county, Ind. On these special findings the common pleas court rendered judgment in favor of Albright notwithstanding the general verdict. On petition in error the circuit court reversed the judgment of the court of common pleas for error in overruling the demurrer to the answer, and rendered judgment on the general verdict in favor of the original plaintiffs. Kirk Hoffman and D. W. Bowman, for W. A. Hough and Robeplaintiff in error. son & Yount, for defendants in error. SHAUCK, J. (after stating the facts as above). [1] The record does not permit the was rendered proposition that the judgment of the circuit court of Hancock county against Albright without service of summons upon him. It distinctly appears that a summons was issued and a return of personal *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes The common pleas court erred in overruling the demurrer to the answer and in rendering judgment in favor of the original defendant notwithstanding the verdict against him, and the circuit court properly rendered judgment on the general verdict. Judgment affirmed. service thereof was made, and this returning can be pleaded or proved that could have was in accordance with the fact. Since the been pleaded and proved in the original acanswer admits the personal service of sum- tion, whether it was so pleaded and proved mons in the action, the only proposition or not." which the defendant in error can make in opposition to the jurisdiction of the court in Indiana is that in order to get opportunity for personal service his adversaries had decoyed him into that state by false representations, and had thus abused the process of the court. The determination of that question was peculiarly for the court whose process was alleged to have been abused. He invoked its authority by a motion to quash the writ and set aside the return. Its decision was adverse to him, and as he did not resort to a superior court of Indiana, or resorted unavailingly, for a reversal of its judgment, he cannot be permitted to litigate that question again in this state. This conclusion is well sustained by the cases cited in the briefs, and with respect to it the courts below appear to have been in accord. SPEAR, C. J., and DAVIS, PRICE, JOHNSON, and DONAHUE, JJ., concur. SAYLES et al. v. HALL. (Supreme Judicial Court of Massachusetts. Dukes. Nov. 29, 1911.) 1. DEEDS (§ 171*) — RESTRICTIONS "DWELLING HOUSE." USE Where lots in a town plat were sold under plat, and containing a restriction that no builda form of deed common to all sales from the ing except residences, to be used exclusively as dwelling houses for private families and necessary outbuildings, should ever be erected thereon, such restriction prohibited the use of one of the buildings as a boarding house. [Ed. Note. For other cases, see Deeds, Cent Dig. 88 537-542; Dec. Dig. § 171.* For other definitions, see Words and Phrases, vol. 3, pp. 2285-2295; vol. 8, p. 7646.] 2. DEEDS (§ 176*) - USE OF PROPERTY - RESTRICTIONS-ENFORCEMENT-LACHES. Where defendant's lot was subject to a restriction that only residences for the exclusive use of private families should be erected thereon, and defendant did not make known to the pubing boarders or lodgers in her house, and plainlic, by sign or advertisement, that she was keeptiffs first acquired knowledge of the fact in the fall of 1910, and were not convinced of a breach of the restriction until June, 1911, when they gave notice, and brought suit immediately thereafter, they were not guilty of laches. [Ed. Note.-For other cases, see Deeds, Cent. Dig. § 546; Dec. Dig. § 176.*] [2] But the judge of the court of common pleas was of the opinion that although, in the circumstances appearing, the defendant could not be permitted to again contest the jurisdiction of the Indiana court over his person, the demurrer to his answer should be overruled, to the end that he might assert in the courts of this state rights which he alleged against other parties to the note on which suit was brought in the court of Indiana, although they are not parties here. What rights he thought it permissible to assert here appear from the special findings of the jury, in consideration of which he rendered judgment in favor of the defendant notwithstanding the general verdict against him. Respecting the special findings it is to be observed that they all relate to rights of Albright against persons who were parties to the suit in Indiana, although not parties here; that they are rights arising out of the relations of parties to the note which was the foundation of the suit in the circuit Case Reserved from Superior Court, Dukes court of Indiana; and that they concern County; Lloyd E. White, Judge. facts which were existent when the suit was Bill by Albert H. Sayles, as trustee, etc., On resbrought and passed to judgment in that state. and others, against Evelyn M. Hall. Discriminating attention to these suggestionservation from the Superior Court on the will readily exclude from controlling consid-pleadings and an agreed statement of facts. eration here most of the legal propositions Decree for plaintiffs. which are urged and the cases which are cited by counsel for the plaintiff in error. In view of the numerous decisions of the state and federal courts upon the subject of res adjudicata, and the credit which the federal Constitution requires to be given to the judgments of other states, original discussion of the subject is not needed, and perhaps would not be interesting. In Goodrich v. Jenkins, 6 Ohio, 43, in accordance with both earlier and later decisions of this court, it was said as the basis of decision: "The rule is inflexible in this country. In an action upon the transcript of a judgment in a sister state, noth On August 3, 1867, the Oak Bluffs Land & Wharf Company, a corporation, being seised in fee of a tract of land in that part of Edgartown now comprised in the town of Oak Bluffs, commonwealth of Massachusetts, caused the same to be laid out into house lots, streets, avenues, and parks, according to a plan which was recorded with the register of deeds for Dukes county, a copy of which is made a part hereof, and the said lots were placed upon the market for sale, and the deeds prepared by the company and used by it in all its conveyances of all the said lots which are situated on Ocean avenue, in Oak Bluffs were the same in form and and let rooms in the dwelling house on said contained the following conditions: "This conveyance is made upon the following conditions, the nonfulfillment or breach of any one of which shall work a forfeiture of the estate hereby conveyed, and reinvest the same in the grantor, viz.: The said grantee shall within one year from the date hereof cause to be erected on the granted premises, a dwelling house, to be used exclusively as a residence, for a private family, and no other buildings except the necessary out buildings requisite, and to be used exclusively for domestic purposes, shall ever be erected thereon. And the said grantor shall have the refusal of said granted premises whenever offered for sale by said grantee heirs or assigns. Neither spirituous, intoxicating nor malt liquors shall be made, sold, or kept for sale on the granted premises. No game of chance shall be played for money or any other consideration on the granted premises. No mechanical trade, manufacturing, or public trading shall be carried on on the granted premises. The provisions of the fifty-ninth chapter of the Statutes of Massachusetts for the year 1867 shall be strictly observed on the granted premises. The said granted premises shall be subjected to the rules and regulations of the Martha's Vineyard Camp Meeting Association during the time specified in the above-mentioned fifty-ninth chapter of the Statutes for the continuance of their religious meetings. The erection and location of all buildings on said granted premises shall be subject to the approval of the said corporation. No building shall be erected within ten feet of the front line nor within five feet of the side lines of said lot. No tent or cloth covered building shall be erected on said lot." lot No. 36, the boarders and roomers averaging in number about 12 persons at any one time, and the average stay of the individual boarders or roomers was 2 weeks excepting as to a few, who remained throughout the season. About one-half the roomers and boarders kept by the respondent in the dwelling house on said lot No. 36 were friends of the respondent, and for that reason were only charged about the exact cost of their keep. The other boarders and roomers kept by the respondent in the dwelling on said lot No. 36 paid the full price. The respondent did not place any sign on said dwelling on said lot No. 36 or advertise in any way or make known to the public that she kept boarders or roomers in the said dwelling on said lot No. 36. The first knowledge that the complainants had that the respondent furnished lodgings as aforesaid was in the fall of 1910, just after the close of the autumn season. In the latter part of June, 1911, the complainants for the first time were convinced that the respondent was furnishing board and rooms as aforesaid. On July 31. 1911, the complainants, by their attorneys, requested the respondent to cease furnishing room and food to people for hire and reward, and the complainants, through their attorneys, notified the respondent that the complainants felt that such use of the dwelling at No. 36, said Ocean avenue, was a violation of the conditions and restrictions in the original deed of the Oak Bluffs Land & Wharf Company. Three dwelling houses, numbered respectively 11, 13 and 15 Ocean avenue on the aforesaid plan, were used at divers times by the occupants for the purpose of letting rooms and furnishing meals, and the dwelling house No. 11 Ocean avenue on said plan The complainants are the present owners has been used for such purpose for more of lot 34, and the respondent of lot 36, on than 20 years. There were no signs or adsaid Ocean avenue, being adjoining lots, both vertisements on any of the three dwellings holding by mesne conveyances under said at Nos. 11, 13 and 15 Ocean avenue on said form of deed. Dwelling houses were erected plan, or anything to indicate that boarders on said lots within one year by the original or roomers would be provided for at the grantees. The dwelling on lot 34, Ocean ave- aforesaid houses. The complainants had nue, has been used up to the present time as no knowledge that the houses numbered 11, a residence for a private family. The dwell- 13 and 15 Ocean avenue were ever used for ing on said lot 36 was used up to June, 1908, the purpose aforesaid, of furnishing people as a residence for a private family. On with board and lodging, until the time of June 9, 1908, the respondent purchased said agreeing to these facts; that in a large numlot No. 36. Both complainants and respond- ber of the dwellings on streets and avenues ent used the dwellings on the said lots only other than said Ocean avenue boarders and during the summer and autumn seasons. lodgers have been kept for many years in During the season of 1908 the respondent said Oak Bluffs, and the original deeds of kept three boarders in the dwelling on said the aforesaid lots where said dwellings are lot No. 36. During the summer of 1909, the situated contained the same conditions as respondent let her said dwelling house on the original deed of said lots 36 and 34. The said lot No. 36 to a private family. During complainants had no knowledge that the the autumn of 1909 the respondent kept two aforesaid dwellings were so used until the or three boarders in said dwelling on said time of this agreement. On all the lots on lot No. 36. During the season of 1910 and said Ocean avenue substantial dwelling 1911 the respondent occupied the dwelling houses were erected and used as required by |