Caldwell v. The Bank of Salem.

We construe the fifth clause as being subject to the provisions of the third and fourth clauses, and as excepting what is given to Wayland and Bertha J. Allen. Bertha died before Catharine, the widow, who had the life estate. The only question in the case is, whether the legacy to Bertha was vested or contingent. It was vested. There is nothing in the will to evince a contrary intention.

The law is, that "if the bequest be to A for life, and, after the death of A, to B, the bequest to B is vested on the death of the testator, and will not lapse by the death of B in the lifetime of A." Toller on Ex. 306; 2 Williams on Ex. 891. See Willard on Ex. 357, 2 Black. Comm. 512, for rules to determine when a legacy is vested.

Per Curiam.-The judgment below is affirmed, with costs. James S. Hester and Samuel H. Buskirk, for the appellants.

CALDWELL V. THE BANK OF SALEM.

PRACTICE WAIVER.-When the defendant amends his answer, after a demurrer has been sustained to it, he waives all right to complain of the ruling on the demurrer.

PLEADING.-An answer which sets up a partial failure of consideration in bar of the whole cause of action is bad.

VENDORS AND PURCHASERS.-Quare, Whether, where property is condemned for public use, the equitable owner is not entitled to the damages in lieu of the land, and whether such condemnation in any way affects the relations of the vendor and vendee.

APPEAL from the Knox Circuit Court.

PERKINS, J.-This cause was before us at the May term, 1861, upon a demurrer to the complaint. The complaint was

Caldwell v. The Bank of Salem.

then held sufficient. 469.

The Bank of Salem v. Caldwell, 16 Ind.

On the return of the cause to the Court below the defendant answered. The plaintiff demurred to the answer, and the demurrer was sustained. The defendant then, by leave of the Court, filed an amended answer. It has been held that, where this course is pursued, objection is waived to the ruling upon the demurrer. Ham v. Carroll, 17 Ind. 442, and cases cited. This doctrine seems to be reasonable. The amended answer, it may be presumed, will not be made weaker than the defendant's case will turn out in evidence; and if made stronger, still it will be necessary to prove only enough of it to make out a legal defence, and the question as to such proof can be raised on the evidence and upon instructions on the trial of the issue upon the amended answer. This rule of law takes from our consideration the original answer, and carries us forward to the amended answer. A demurrer was sustained to that.

The first and second paragraphs of that answer went to the right of the plaintiff to sue, but neither of them denied that the plaintiff was the equitable owner of the notes upon which the suit was founded.

The third paragraph set up a failure of consideration as to one-half the amount of the notes sued on, (see Hoot v. Spade at this term,) while the paragraph assumed to go in bar of the whole cause of action, and was bad for this reason. Moorman v. Barton, 16 Ind. 206. It did not ask a recission of the contract. On the trial the evidence showed that the proper parties to the suit were before the Court; hence, we can not reverse on this point. See Crake v. Crake, 18 Ind. 156.

The paragraph of the answer setting up a failure or want of consideration, in bar of the whole cause of action, alleged that the notes sued on were given for the purchase-money of a certain lot in Vincennes, by Caldwell from the Bank, and

Ray v. Major.

"that before the making and tendering of a deed by the latter to the former, the City of Vincennes had legally condemned one-half of the lot for public uses," &c. The legal import of the paragraph was to show that the Bank had title to but half of the ground sold.

In argument, the case of Scribner v. Holmes, 16 Ind. 142, is cited to show that the covenants in a deed do not extend to a public highway, regarded as an incumbrance on the land. We wish to say that a street in a city might, perhaps, be reached by such covenants, where it had been opened or widened by taking in a part of a platted lot. It is not necessary now to decide the point.

But, quære, whether, where property is condemned for public use, the equitable owner is not entitled to the damages in lieu of the land, and whether such condemnation in any way affects the relation of the vendor and vendee. See Thompson v. Norton, 14 Ind. 187.

Per Curiam.-The judgment below is affirmed, with costs and one per cent. damages.

J. G. Bowman, C. M. Allen, N. Usher and W. E. Niblack, for the appellant.

Samuel Judah, for the appellee.

RAY v. MAJOR.

APPEAL from the Marion Circuit Court.

Per Curiam.-Judgment by default below on a promissory note. No motion below to set the default aside. The appeal is dismissed, with costs.

David Ray, for the appellant.

Palmer et ux. v. Henderson.

BURCH et al. v. PERINE.

APPEAL from the Marion Common Pleas.

Per Curiam.-Judgment by default on an account. No motion to set aside the default below. Appeal dismissed, with costs.

R. L. Walpole, for the appellants.

PALMER et ux. v. HENDERSON.

Fraudulent CONVEYANCE-CREDITORS.-A conveyance made for the purpose of defrauding creditors may be set aside, and the property subjected to the payment of the debts of the person making or procuring the conveyance; but this can not be done where the purchase has been made for a valuable consideration, and in good faith on the part of the purchaser. WITNESS-HUSband and Wife. Where real estate is procured to be conveyed to a married woman, and the conveyance is alleged to have been made for the purpose of defrauding creditors, and without consideration, and suit is instituted against the grantee and her husband to set aside the conveyance, the wife is a competent witness in her own behalf to prove any material fact in the cause, other than communications made to her by her husband during the marriage, the real estate, by reason of the conveyance, having become her separate property as fully as if she were unmarried; but the husband, in such case, having no such direct interest in the property as would entitle him to testify in his own behalf, is not a competent witness for or against his wife.

APPEAL from the Marion Circuit Court.

WORDEN, J.-Complaint by Henderson against Hiram E. Talbott, Trumbull G. Palmer, and Romania Palmer, his wife, alleging, in substance, that in 1837, and for a long time prior

Palmer et ux. v. Henderson.

thereto, said Talbott was largely indebted to the plaintiff and others; that afterwards, the plaintiff's claim against Talbott was reduced to judgment in one of the courts of California, on which execution was issued without avail; that Talbott has no property in his own name out of which the plaintiff's claim can be realized; that Talbott, being the owner of a large amount of real estate in the State of Iowa, and being possessed of a large amount of money, bought of one Henry J. Horn a certain part of a lot, which is described, in the city of Indianapolis, for which he paid him in cash, land, and other property, the sum of 5000 dollars; and for the purpose of hindering, delaying and defrauding the plaintiff and his other creditors, Talbott caused Horn to convey the said property in Indianapolis to the said Romania E. Palmer, who is the daughter of said Talbott and the wife of said Trumbull; that neither the said Trumbull nor the said Romania ever paid Talbott any consideration for the premises, but that the same was a voluntary gift from Talbott to Romania.

Prayer, that the property in question be sold to pay the plaintiff's claim.

The defendants answered by general denial. The cause was tried by the court, resulting in a finding and judgment for the plaintiff.

On the trial, it appearing that Horn conveyed to said Romania the property in question, Trumbull G. Palmer was offered as a witness to prove certain matters not necessary to be here stated; but the testimony was excluded, and exception taken.

The said Romania was also offered as a witness, in her own behalf, to prove that the property in question had not been given to her by Talbott without consideration other than that of love and affection, but that it had been conveyed to her for a valuable consideration paid and to be paid by her and her said husband.