The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-05-12
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Yesterday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.
supreme Court-May 10.

BARRED woMAN-PARoL TRUST IN LANDS.
1O,5l6. Jasper Moore VS.. s. d. Cottingham.
Hamilton c. q.
Best, Gin 1867 John Moore and his wife
Louisa, conveyed certain land to their son Ma
rlon, who thereupou conveyed it to said Louisa
10 nold III trust for John, the purpose being to
preserve the properly from being wasted by The
latter during his periods of dissipation. After
ward said John became dissatisfied with the az
fangement, ana wishing to resume the title, his
Wl1e conveyed the land to the son, her husband
not joining in the deed, and the son recOnveyed
1t 10 John. Louisa died intestate, leaving sew
eral eblldren, and at her death the appellee held
a Judgment against John L. Moore, one of the
cnlIuren, and this suit was to euiOin the sale of
MS interest in the land under said judg-
veyed the land to appellants. It is
conceded that the parOl trust cannot he
enforced, put the question Is whether it can be
proved, Tor the purpose of showing that it has
oeen executed, and whether the separate deed
OF u married woman in execution of such trust
Is valid. The statute of frauds does not render
such a contract illegal. and the parties may per-
FORM II II they choose. a DEMO, 81; Is Pick, A.
ana whether such n trust exists may he shown
TOT tne purpose of showing that II has been exc
cuted. IL Perry, Trusts, 377; So N. J. L., 290)
Inc Wife took the title in trust for her husband,
ana a trust estate is not linble for the debts of
the trustee, nor of those who represent him by
Inheritance. $50 Ind, 542) The rule that a wife
cannot convey her lands, except her husband
joins, does not apply to lands held by her in
trust. As to these, she has the same capacity
aslt she were sole. Perry, Trusts, sec. 4SJ The
husband, being the "cestui que trust, could not
80" AN1hilNN ~ Ibln III but
deed, and therefore the deed OF the wife was a
surlclent execution OF the trust perry supra,
sec, 500 The title was, therefore,, not in the
wife at her death. Judgment reversed.
REFERENCE TO MASTER
7oo,o TIcE.
1O,36o. Madison Lee VS.. State, ex rel. Tenn
pleton. Hamilton C. C.
Blcknell, C.-Where the order of reference to
a master commissioner requires him to make a
nnulug, he Is, in legal effect, n general referee
anu most make IA final report on which the court
nnSI rRnlRT n1FuRn In Ind AnE \ ItA O.
port becomes "A part of tine record, without bill
Of exceptions. (92 Ind, 463) Under such "A
reference the master is not authorized to report
the evidence. 90 Ind, 1856: 81 ill.,, 162J The
only way to get the facts yefOre the court is to
require the facts and conclusions of law TO be
separately reported by the master. The court
may include interest from the time of the report
until judgment, but cannot, as was done
in this case, render Judgment for a sum greater
than that reported. Upon questions arising
at the hearing before the master rs to admission
or exclusion of evidence, ETC., objection must be
taken before him and made part of the record
by bill of exceptions signed by him or by his
statement in his report. az Ind, 276; 81 1d.,
S9l A copy of the evidence, certified by the Off
cial reporter who took II, is not sufficient with
cut the authorization of the master. The suit
was on the bond of an administrator, and the
court added the 10 per cent. penalty to the
amount found by the commission. This was
error, but il the amount so added he RENTED by
the appellee the judgment will be affirmed.
SPECIFIC NEUTRALITY-SUSPICIOUS. SALE
$3.50. Elisha Straughan VS.. Mary White.
Hendricks c.. G.
Morris, C.-The question presented is whether
the enforcement OF q contract to convey
real estate is a judicial sale within the
meaning of the act of 1875. Such n pro-
ceeding is destitute of every element OF a ju-
diclal sale. Such a sale Is founded on the judg-
ment and decree of the court; the prices and
conditions are determined by the court and in
sales strictly judicial they must be confirmed by
the court. In this case White, being the owner
of the land, subject only to the contingent right
of his wife to one-third in fec in case she shonld
survive him, had a right to contract to sell and
convey this precise interest to appellant. This
he did ana his deed would have passed such in
terest. The object of the proceeding for specific
performance was TO compel q transfer pursuant
TO the terms of the original contract and the
deed made by tile commissioner of the court had
the So me effect as the deed OF White wuald have
had. While the act of 1873 is to be literally con-
strued, neither its words nor spirit give to
a married woman a vested interest in the lands
of her husband during his life unless his title
has passed from him ana vested In another by
judicial sale. Judgment reversed.