at

McFadden et al. v. Hopkins et al.

or foreclose his mortgage and sell the equity of redemption, any time after the expiration of the stay of the judgment and Hart failed to pay according to the covenants in his mortgage, without waiting until he had paid off the judgment himself. Gunel v. Cue, 72 Ind. 34; Durham v. Craig, 79 Ind. 117. Where there are two indemnifying mortgages, that which is first executed and recorded has the prior lien. The lien begins with its execution and delivery, and not with the payment of the debt indemnified against. Krutsinger v. Brown, 72 Ind. 466. The mortgagor has a right to sell the equity of redemption in the mortgaged property, but the purchaser takes the property subject to the mortgage, and if he disposes of it, and converts the proceeds to his own use, he is liable to the mortgagee for its value, not exceeding the amount due on the mortgage. Duke v. Strickland, 43 Ind. 494; Coles v. Clark, 3 Cushing, 399. Therefore, if appellee's mortgage is valid as against appellants, the evidence supported the verdict of the jury; but if it is invalid as against creditors, appellants being such, the verdict is not supported by the evidence, and is contrary to law. As to whether it was valid or invalid against appellants, depends upon whether it was fraudulent. The 21st section of the Statute of Frauds, 1 R. S. 1876, p. 506, reads as follows: "The question of fraudulent intent, in all cases arising under the provisions of this act, shall be deemed a question of fact,” etc. Under this statute, this court has held that a recorded mortgage, upon its face, can not be declared fraudulent and void as against creditors; that fraud, in such a case, is a question of fact, to be submitted to the court or jury upon the trial. McLaughlin v. Ward, 77 Ind. 383; Lockwood v. Harding, 79 Ind. 129; Morris v. Stern, 80 Ind. 227.

In the first case above named, this court said: "Under this statute, any recorded mortgage, which is valid between the parties to it, will be upheld against third parties, unless, for some reason, it is actually fraudulent as against them; and whether fraudulent must be deemed a question of fact, to be determined according to the circumstances of the particular case.”

Robertson, Administrator, et al. v. Garshwiler, Guardian.

Appellee's mortgage being regularly recorded, the evidence upon the trial showed that it was executed in good faith, and for a valid consideration, and although the mortgagor was permitted to remain in possession of the goods, and sell them by retail, there was no actual fraud in fact proven to exist in the transaction. Appellants' mortgage contained a clause that the goods were subject to appellee's mortgage; hence they took the goods and disposed of them, with both actual and constructive notice of appellee's claim on them. The whole question of fraud was submitted, upon the evidence, to the jury, and they having found in favor of appellee, we see nothing in the evidence upon which the verdict can be interfered with.

The verdict is sustained by the evidence, and is not contrary to law.

There was no error in overruling the motion for a new trial. The judgment below ought to be affirmed.

PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment below be and it is hereby in all things affirmed, with costs.

No. 9358.

ROBERTSON, ADMINISTRATOR, ET AL. v. GARSHWILER, GUARDIAN.

PRACTICE.-Joint Motion for New Trial.-A joint motion for a new trial must be good for all who join in it, else it is not available for any of them, and where the finding and judgment are for one defendant and against another, a joint motion for a new trial will not avail either of them. SAME.-Admission in Complaint.—Evidence.-Payment.-Under a plea of payment to an action on a promissory note, it is competent for the plaintiff to show that a credit admitted in the complaint is for the same payment evidenced by a receipt produced by the defendant.

SET-OFF.-Guardian.—An individual obligation of a guardian can not be set off against a cause of action held by him as guardian.

From the Marion Circuit Court.

Robertson, Administrator, et al. v. Garshwiler, Guardian.

F. M. Finch and J. A. Finch, for appellants.

J. V. Hadley, E. G. Hogate and R. B. Blake, for appellee.

WOODS, J.-The appellee, as guardian, brought this action upon a promissory note made by Amos and Emily Birchard, payable to the order of the appellee at a bank in this State, and endorsed by the appellant Piel. The makers of the note having both died, the appellant Robertson was appointed administrator of the estate of said Emily, and in that capacity was made defendant.

The appellants severed in their defences, Robertson pleading a set-off and the coverture of his intestate, and Piel answering by a general denial and a plea of suretyship. The court found in favor of the defendant Robertson, upon the answer of coverture, and gave judgment in his favor, but found against Piel in favor of the appellee in the sum of $640, and entered judgment accordingly.

The first error assigned and discussed by counsel is the sustaining of the demurrer to the set-off pleaded by Robertson. The ruling, however, was clearly right. The alleged set-off consisted of an individual obligation of the plaintiff Garshwiler, which was not lawfully capable of being set off against a cause of action which he held as guardian. "The principle of mutuality, in such cases, requires that the debts should not only be due to and from the same person, but in the same capacity." Dayhuff v. Dayhuff's Adm'r, 27 Ind. 158.

The other questions in the case arise under the overruling of the motion for a new trial, the discussion on behalf of the appellant being directed to the admissibility of certain testimony and to the amount of the recovery. At this point, the appellee insists that no question is presented, because the motion for a new trial was a joint motion by both defendants, and that, Robertson not being entitled to a new trial, as he clearly was not, the motion was not available for the appellant Piel.

Such seems to be the rule of practice. It was so decided in the case of First National Bank, etc., v. Colter, 61 Ind. 153, in

Fry et al. v. State, ex rel. Wilson.

which there was a joint verdict against the parties who joined in the motion; and where, as in this case, the finding is for one and against the other, the reason for applying the rule is manifestly stronger.

The principal objection to the testimony, however, is that the plaintiff was allowed to offer evidence in explanation of a credit admitted in the complaint. It is insisted that it was not competent for the plaintiff to dispute the credit so admitted; and, if true in fact, the objection would be well taken. The effect of the evidence, however, was not to dispute the complaint, but simply to show the source of the credit, and that it was identical with and constituted a part of a sum for which the plaintiff had given a receipt, which was put in evidence by the defendant.

This disposes, too, of the claim that the amount of the recovery was too great.

Judgment affirmed, with costs.

No. 8850.

FRY ET AL. v. STATE, EX REL. WILSON.

BASTARDY.-Recognizance.-Breach.- Failure to Replevy.—Judgment.—In bastardy the defendant entered into the usual recognizance to appear and abide the judgment. The cause was afterwards compromised by agreement between the putative father and the mother, by the payment of a sum of money, and a stipulation for a judgment for a certain sum, payable as the court should direct, to be replevied. Judgment was accordingly entered, the relatrix acknowledging in court that satisfactory provision had been made for the support of the child.

Held, that a failure to replevy the judgment was not a breach of the condition of the recognizance.

From the Howard Circuit Court.

N. R. Linsday and T. A. De Land, for appellants.

R. Vaile and J. F. Vaile, for appellee.

VOL. 81.-30

Fry et al. v. State, ex rel. Wilson.

MORRIS, C.-The complaint states, that at the December term, 1878, of the Howard Circuit Court, the appellants entered into a recognizance for the appearance of Samuel M. Fry at the next term of said court, to answer the State of Indiana, on the relation of Ellen Wilson, upon a charge of bastardy, then pending in said court. The bond is as follows:

"Know all men by these presents, that we, Samuel M. Fry and Luke Fry, are held and firmly bound unto the State of Indiana in the penal sum of five hundred dollars. The condition of the above obligation is such, that whereas an action is now pending in the Howard Circuit Court, wherein the State of Indiana, upon the relation of Ellen Wilson, is plaintiff, and said Samuel M. Fry is defendant, the same being an action for bastardy: Now, if the said Samuel M. Fry shall be and appear at the Howard Circuit Court, on the first day of the next term thereof, there to remain and not to depart without leave and to abide the order and judgment of the court, then this obligation shall be void, otherwise to remain in full force and effect.

66

"Witness our hands and scals, this 15th day of January, 1879. SAMUEL M. FRY, [Seal.] "LUKE FRY.

"Approved this 15th day of January, 1879.

[Seal.]

"C. N. POLLARD, Judge."

It is alleged in the complaint that both Samuel M. Fry and the relatrix appeared at the March term, 1879, of said court, and compromised said proceedings in bastardy; that the said Samuel M. agreed to pay said relatrix $100 in cash, and suffer judgment to go against him for the sum of two hundred and twenty-five dollars, payable as the court may direct, to be replevied by such surety as the court may accept, each party to pay the costs made by each; that, in pursuance of said agreement, the said court rendered judgment against the said Samuel M. for $225, for the use of said relatrix, and ordered said defendant to replevy said judgment, and that, upon doing so, he should pay of said sum, $100 in twelve months.