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Hathaway, Executor, v. Roll.

Sunday. Moore's Criminal Law, sections 679,680; The State v. Land, 42 Ind. 311; Clark v. The State, 34 Ind. 436.

The court, therefore, erred in overruling the motion to quash the indictment.

The judgment is reversed, and the cause remanded for further proceedings.

No. 8335.

HATHAWAY, EXECUTOR, v. ROLL. DECEDENTS' ESTATES.--Claim.-- Pleadings.--Promissory Note.--Consideration.

--The testator executed to the appellee a paper as follows: “ July 5th, 1870. When I am gone, for value received, I promise my grandchild, Sarah E. Roll, to pay her or order five hundred dollars, with interest from date ten per cent. Jonas Williams. Lucy, this is due to Sis, when

I am done with it—is for staying with you. Jonas Williams.” Held, that this, with the affidavit required, was a sufficient complaint upon

a claim against an estate. Held, also, that the instrument, duly proved, sufficiently established a con

sideration for its execution, so that the Supreme Court would not disturb an allowance upon it. From the Fayette Circuit Court. C. Roehl and W. C. Forrey, for appellant. W. A. Bonham and R. Conner, for appellee.

FRANKLIN, C.- This is a claim filed by the appellee Sarah E. Roll against the appellant, Peleg Hathaway, as executor of the will of Jonas Williams, deceased.

There was an issue formed by a general denial. Trial by the court, and a finding for appellee in the sum of $569.43.

A motion for a new trial was overruled, and judgment rendered upon the finding.

The errors assigned in this court are, the overruling of the motion for a new trial, and that the complaint does not state facts sufficient to constitute a cause of action.

Hathaway, Executor, v. Roll.

The complaint consisted of a note with indorsements of credits thereon, and an affidavit attached thereto that the same was correct; that no payment had been made thereon except the credits endorsed, and that there was no set-off against the same. The note is as follows:

“July 5th, 1870. When I am gone, for value received I promise my grandchild, Sarah E. Roll, to pay her or order five hundred dollars ($500), with interest from date ten per cent.

Joxas WILLIAMS. “Lucy, this is due to Sis, when I am done with it—is for staying with you.

JONAS WILLIAMS." We think this is a sufficient cause of action for a claim against an estate.

The reason stated for a new trial is, that the finding of the court is contrary to the law and the evidence.

The defence discussed by counsel is that there was no sufficient consideration for the note.

The plaintiff proved the execution of the note and read it in evidence, which was all the evidence given by the plaintiff. The defendant proved that the plaintiff

, Sarah E. Roll, was the daughter of Lucy, who was the daughter of deceased, and the wife of Matthias Roll, that they called their daughter Sis; that said Matthias Roll had a claim then pending in court against the said estate of Jonas Williams. It was agreed that Jonas Williams died September 11th, 1877, aged ninetythree years. This was all the evidence given in the cause.

There was no evidence as to the consideration of the note, except as stated in the addendum to the note.

A promise, without any consideration, to pay after death, can not be construed into a gift; but services rendered to a third party are a sufficient consideration for a note.

The note states that it was given for appellee's staying with her mother; the nature of the services, other than staying with her mother, is not given. But from the age of the grandfather at the date of the execution of the note, we presume that the mother was old enough to need the services of

Porter et al. v. Reid.

her daughter, and that the daughter was old enough to render her valuable services. And that the daughter after she arrived at the age of majority remained with the mother, would alone be a sufficient consideration to support the note.

We think the evidence supported the finding of the court, and that the finding was not contrary to the law or the evidence.

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

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

81 569

133 667,

No. 9063.

PORTER ET AL. v. REID.

PLEADING.--Counter-Claim.--Practice.-A pleading filed as an answer, and

bad as such, may, if its averments are sufficient, be treated as a counter

claim. SAME.- Mortgage Liens, Priority of.-One who is made defendant to a com

plaint to foreclose a mortgage, and who holds a prior lien, may, by

counter-claim, have the priority established. SAME.-Special Finding.--Practice.—Where, to a complaint to foreclose a

mortgage, a defendant by counter-claim sets up a prior mortgage, seeking to have the priority established, to which the answer is a general denial and payment, a special finding that the defendant's mortgage, though it describes the property embraced in the plaintiff's mortgage, was not so intended, and a conclusion of law that it is not a prior lien, are not within the issues, and therefore irrelevant, and an exception

thereto should be sustained. SAME. - Answer.- Mistake.- Description of Land in Mortgage.--An answer to

a counter-claim which sets up a prior mortgage on the premises (on which the plaintiff seeks a foreclosure), alleging a material mistake in the description of the lands in the defendant's mortgage, and that it was

not intended to include the same lands, is good on demurrer. SAME.--Evidence.- When real estate is conveyed by metes and bounds or

any other certain description, this will control the quantity, although not correctly stated in the conveyance, and parol evidence is not admissible to show what real estate was meant to be conveyed.

Porter et al. v. Reid.

Costs.--Reversal on Assignment of Cross Errors.- Practice.- Where the appel

lee assigns cross errors occurring prior to those assigned by the appellant, and all the errors assigned are found to exist, the judgment will be reversed at the costs of the appellant. From the Fountain Circuit Court. M. Milford, for appellants. J. S. Nave, B. F. Hegler and A. A. Rice, for appellee.

MORRIS, C.—The appellee, James O. Reid, brought this suit against the appellants to foreclose a mortgage. The complaint is in two paragraphs.

The first states that Joseph Poole, in his lifetime, executed to the appellee a mortgage on lots three, four and five, in Butler's addition to the town (now city) of Attica, in Fountain county, Indiana, on the 21st day of September, 1877, to secure the payment of a note for $1,000, executed by said Poole to the appellee, and payable in two years from its date; that said mortgage was duly recorded in said county, within ten days from its execution ; that on the — day of March, 1878, said Joseph Poole died testate, leaving as his heirs, Lucretia A. Poole, Lizzie H. Poole and Julia G. Allen, formerly Poole, but since intermarried with David S. Allen; that Isaac E. Schoonover had been duly appointed administrator de bonis non with the will annexed of the estate of said Joseph Poole; that said note and the interest thereon were due and unpaid ; that on the 5th day of November, 1877, said Poole executed another mortgage on said lots to the defendants George F. Ward and Isabella Whickcar to secure the payment of $5,600; that on the 22d day of December, 1877, Margaret Hushaw recovered a judgment in the Fountain Circuit Court against the said Joseph Poole for the sum of $600 and costs; that the appellee's lien is prior and superior to the others; that the appellants Samuel Carter, Newman Porter and Elizabeth V. Brown, and Frank M. Brown, her husband, have or pretend to have some interest in or title to said lots, but that the appellee is ignorant as to the character of such claim. All of the persons named as heirs, incumbrancers or as hav

Porter et al. v. Reid.

ing any interest in said lots, as well as the administrator of the estate of Joseph Poole, are made parties.

The second paragraph of the complaint is like the first, except that it states that the parties to the appellee's mortgage made a mistake in describing the addition to the town of Attica in which the lots mortgaged are situate; that the lots agreed and intended to be mortgaged are situate in Butler's addition of out-lots to the town of Attica; that there is no such addition to said town as Butler's addition, as stated by mistake in said mortgage. Prayer that the mortgage be reformed and foreclosed as reformed.

The cause was finally put at issue, and submitted to the court for trial. Upon the request of the appellants the court found the facts specially and the conclusions of law arising thereon. The appellant Newman C. Porter duly excepted to the conclusions of law found by the court. Judgment upon the findings for the appellee.

The error assigned by the appellant calls in question the conclusions of law as stated by the court.

The findings of the court are as follows:

“1. That on the 21st day of September, 1877, Joseph Poole executed the mortgage declared upon in plaintiff's complaint, which was duly recorded, as alleged therein ; that the said mortgage was executed to secure the debt evidenced by the note described therein.

“2. That by mutual mistake of the parties the property intended to be covered by said mortgage was described as “lots numbered three, four and five in Butler's addition to the town (now city) of Attica,' when it ought to have been described, and was, by the parties, intended to have been described, as lots numbered three, four and five in Butler's addition of out-lots to the town (now city) of Attica.'

“3. That there is a duly platted and recorded addition to the town (now city) of Attica, known and designated as Butler's addition of out-lots, and that there is not now, and

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