English, Ex'r, v. The State, ex rel. Fields. 2d. That the said Thomas Tull refuses to pay to said El-. bridge Fields the amount due him, although said Fields is of full age, to wit, the age of twenty-one years, and has repeatedly demanded such payment and settlement. 3d. That in 1873 the said Tull removed from the State of Indiana and is now a resident of the State of Kansas, and has not filed with any court, having proper jurisdiction thereof, any report of the receipts and disbursements of said trust funds, and has given no proper account thereof, since March 27th, 1866, although such reports have long since been due. Copies of the bond, the oath of the guardian and the letters of guardianship were annexed to the claim and filed therewith, and there was a bill of particulars stating the amounts received by said guardian, with the dates of such receipts, and also stating the amount claimed for interest. There was no demurrer to the claim; the defendant answered in two paragraphs: 1st. The general denial. 2d. Payment. The plaintiff replied denying the second paragraph of the answer. The issues were tried by the court who found for the plaintiff $1,000. The defendant moved for a new trial and filed the following reasons therefor: 1st. The decision of the court is contrary to law. 2d. The decision of the court is contrary to the evidence. 3d. The decision of the court is not sustained by sufficient evidence. 4th. The damages assessed by the court against the said estate are excessive. 5th. The court erred in the assessment of the amount of recovery against said estate, the same being too large. The motion for a new trial was overruled. Judgment was rendered for $1,000 and costs, and the defendant appealed. He assigns errors as follows: 1. The complaint of the plaintiff does not state facts sufficient to constitute a cause of action. English, Ex'r, v. The State, ex rel. Fields. 2. The court erred in overruling appellant's motion for a new trial. The first of these errors is not discussed in the appellant's brief, and is therefore regarded as waived. Of the five reasons alleged for a new trial, the third only is discussed by the appellant in his brief, viz.: that the decision of the court is not sustained by sufficient evidence. The other reasons are, therefore, regarded as waived. Mackenzie v. The Board, etc., 72 Ind. 189. The evidence is shown by a bill of exceptions. It consists of oral testimony and of documentary evidence. None of it was objected to at the trial. Its competency, therefore, can not be objected to in this court. Holderbaugh v. Turpin, 75 Ind. 84. The evidence tended to support the finding. No evidence at all was offered on behalf of the appellant; when there is evidence tending to support the finding, this court will not weigh the evidence for the purpose of determining whether the preponderance would not be against the finding. Lentz v. Martin, 75 Ind. 228; Phoenix, etc., Ins. Co. v. Hinesley, 75 Ind. 1; Hayden v. Cretcher, 75 Ind. 108. The evidence tends to show that the note for $360, which the appellant claims was not due when the guardian, in his first report, charged himself therewith, had been collected before it was due, but the evidence also shows that, throwing out the claimant's share of that note, his judgment, including interest and ten per cent., would be for more than $1,000. The appellant claims that one-seventh of the amount of pension money received could not amount to $1,000; but here were seven minor heirs entitled to share in the money when the guardian was appointed, in 1864; the youngest of them, the appellee's relator, was born November 6th, 1857; he was sixteen years old November 6th, 1873; his share had been increasing, as the older children became sixteen years old and were left out. The evidence tends to show that William and Alexander, the two oldest children, were sixteen years old as McFadden et al. v. Hopkins et al. early as March, 1867, one of them probably earlier, and that the next two, who were twins, reached that age in March, 1868; that the fifth child was aged sixteen in March, 1870, and the sixth in November, 1871. So that the appellee's relator was entitled to all of the last payment, and to half of the payment next before the last, and to one-third of the next preceding payment, and so on to the beginning, when his share was oneseventh. The evidence tends to show that the relator's shares of the several payments of pension money, and interest on each, and ten per centum on the entire amount, would exceed the amount of the judgment below, without including the relator's share of the aforesaid note for $360. There was no error in overruling the motion for a new trial. The judgment of the court below ought to be affirmed. PER CURIAM.-It is therefore ordered, on the foregoing opinion, that the judgment of the court below be and it is hereby in all things affirmed, at the costs of the appellant. No. 8880. MCFADDEN ET AL. v. HOPKINS ET AL. CHATTEL MORTGAGE.—Indemnifying Mortgages.-Priority.-Of two indem- SAME.-Damages. The purchaser of mortgaged property takes it subject From the Daviess Circuit Court. McFadden et al. v. Hopkins et al. J. T. Pierce, for appellants. J. W. Burton, for appellees. FRANKLIN, C.-The following are the facts out of which this suit grew: On the 3d day of January, 1876, appellee Hopkins stayed a judgment in the Daviess Circuit Court, rendered against appellee Hart and one Thomas, for $1,484, and took from Hart, as security, an indemnifying mortgage upon a stock of dry goods and other personal property, which mortgage was duly recorded. And on the 12th day of November, 1879, he paid off the balance of the judgment, being over $1,200. On the 18th day of February, 1876, appellants endorsed for said Hart a note to the First National Bank of Franklin, Indiana, for $1,000, and at the same time took an indemnifying mortgage from said Hart upon the same stock of goods and a part of the other personal property, subject to Hopkins' mortgage, which mortgage was also duly recorded. Appellants paid off the note at maturity in June following. The stay on the judgment expired June 22d, 1876. On the 20th of September, 1876, appellants purchased of appellee Hart $500 worth of the goods, at invoice price, for which they agreed to give a credit on the amount they had paid on the bank note. Hart had retained the possession, use, management, control and sale of the mortgaged property from the date of the Hopkins mortgage to the day of the sale to appellants, and in the mean time had sold of the goods to the amount of $4,600, and had replaced with new stock to the amount of $2,151.18, and had appropriated some of the goods to the use of his family. On the 13th of December, 1879, appellee Hopkins commenced this suit against appellants for a conversion of the goods. He sets forth in his complaint his mortgage and the the payment of the judgment; he alleges the insolvency of both Hart and Thomas at the date of the expiration of the McFadden et al. v. Hopkins et al. stay of the judgment and ever since, and then avers that appellants "wrongfully and unlawfully took, hauled and carried away all of said stock of general merchandise described in said mortgage, and removed the same from said county of Daviess without the knowledge or consent of the plaintiff, and wrongfully sold and disposed of said personal goods, and appropriated and converted the same and the proceeds thereof to their own use, and by reason of the wrongful and unlawful acts of the defendants as aforesaid, the plaintiff says he has sustained damages in the sum of one thousand dollars," etc. A demurrer was overruled to the complaint, and answers and replies filed. There was a trial by jury; verdict for appellee Hopkins, and over a motion for a new trial judgment was rendered for $425.25. Hart did not join in the appeal, and he is, therefore, joined as appellee in this court. The errors assigned are, overruling the demurrer to the complaint, and overruling the motion for a new trial. The reasons assigned for a new trial are, that the verdict is not sustained by sufficient evidence, and is contrary to law. As to the first error assigned, the complaint does not state all the facts of the case; it does not show that appellants were creditors of Hart, and that they had taken goods, under a contract with Hart, in payment of so much of their debt against him, but charges appellants with being tortfeasors, without any claim of right. As against a wrong-doer, appellee's mortgage would authorize him to maintain the suit. We think the complaint, upon its face, states facts sufficient to constitute a cause of action, and there was no error in overruling the demurrer to the complaint. As to whether the evidence supported the verdict, and as to whether it was according to law, depend upon the validity of appellee's mortgage as against appellants. There is no conflict in, or dispute about, the testimony; we have substantially stated the facts as testified to. Appellee had the right to take possession of the property, |