The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-03-16
RECORD OF THE COURTS.
Proceedings in the Various courts of
Record, Yesterday
Full Abstract of the Opinions Rendered
by tile Judges of the Supreme Court
-Work in the Local Courts.


Hon. William A. WOODS, Ch1et Justice.
HUSBAND AND wIFE-rRUsT IN REAL ESTATE.
10, 1922. AmaniTla Meredith VS.. Citizens Ma
tional Bank. Decatur q. C.
Best C.-The facts found by the master com
missioner show that In 1847 appellants nus
band bought the land in dispute, paying 500
on it and assuming a mortgage for $4l4 which
was paid with money received from appellants
father. The title was put in the husbands
name and SO remained until 1880 when without
consideration it was conveyed to appellant, the
husband having become indebted TO other
parties. On these facts appellant was not the
equitable owner of the land. The law in force
when the Land was bought provided that no
trust should arise in favor OF the person who
paid the purchase money unless the
deed was taken in the name of this purchaser
without his consent. In this case appellant con
sented for her husband to take the title. Nor do
the facts show that it was appellants money.
Her father took a note from the husband for the
amount and afterward made a present
of the note to appellant, who tore her husbands
name of it and never held 1t as a claim against
him.. The husband having paid a portion OF the
consideration, no trust could arise In the absence
OF an agreement to that effect. (76 Ind, 1862
II the money be regarded as appellants as soon
as received, it became his by virtue of the law
then in force. 100 Ind, III; 10 i'd, ITO: 80 i'd,
365.) Nor can the conveyance be sustained on
the ground of the husbands Indebtedness to the
wife, because no such Indebtedness is found, nor
that the deed was made in payment of any in
debtedness. Where the conveyance is made
without consideration it is not necessary to show
that the wife participated in the husbands
fraudulent intent. (73 Ind, 93D Judgment az
frmed.
NO1h vi hhhlE
1o,O32. Flora wnlsehner vs. Michael Sells.
Bicknell, C.-Suit by appellee as assignee of
E note made by appellant to o. W; q F: a;
replied that the note was given in reference
to appellants separate personal property. AS
the note was made after the act OF 1879 was In
force, the reply was good. Another answer by
way of set-off alleged that the Kellys were hus-
band and wife: that the note was given for prop
erty OF o. W. Kelly, and F. A. Kelly's name was
inserted as one of the payees at the request of
o. w; that the latter was indebted to appellant
In a large sum, and is insolvent. In cases OF IN
solvency,. or of joint credit given en- account OF
individual Indebtedness, or where the joint debt
is a mere security for the separate debt of the
Eq, 219; 70 MI, 81; 80 i'd, 461; % i'd. 3s4)
But the legal effect of inserting the wtfe's name
in as the donee of her husband, and she having
thus acquired a JOINT interest IN the note, a claim
against her husband alone could met not
assignee. g Ind, 252; 10 i'd, 1888; 10 Id, 3ST;
81 ID, 463) And by consenting TO the Insertion
OF the wlfe's name appellant is estopPed 70 say
that by the note she became indebted tc o. W.
Kelly alone. Judgment affirmed.
FACTS NEUTRALITY-SUSPICIOUS. OF PAYMENTS.
IO,o23. Mary A. Huffman VS.. Peter Cauble.
Washington {. c.
Bickneli, Con petition for rehearing. A
court has no power to state TO a jury what facts
are proved nor what are admitted, unless they
proof. (54 Ind, AIT; ST i'd, 417J A direction
by the debtor as to the application of a payment
will bind the creditor if given at any time before
an application of the payment has actually been
made. Rehearing denied.
PERSONAL OBSERVATION-DISCLOSURES BY AGENT.
1921; Daniel Sheridan VS.. Basil Kyler' Whit
Black, C.-where the defense of breach
of warranty. in the sale Of personal
property is set up it is not
would not have purchased but for the warranty.
If, IN addition to the simple transfer of the prop
erty he can, for the same price, obtain the sell
lers engagement to insure the quality of the
goods, such engagement goes with the goods as
a part of the bargain, and the buyeris entitled To
the benent OF MS bargain IN TINS regard, wnetner
he would or would not have bought without the
additional consideration. q Ind, 10; 30 i'd, IT.;
% i'd l25; 80 i'd, II; A id, 400; 80 Id, lO.)
Where agents represented a MANUFACTURING cum
pany in the sale of an engine, and the written
contract contained the warranty of the com
pany, but in the negotiations leading to the sale
the agents separately agreed by parOl on their
own behalf to warrant the engine in particulars
not covered by the warranty OF the
agents made this oral warranty was a ques-
tian of fact for the jury, and the jury
were rightly permitted to consider whether inc
oral stipulations were made by the agents in
rhelr character of agents or in behalf of their
firm to bind it separately. Judgment affirmed.
PUBLIC HIGHwAY-onsTRUCTioN-RIGHT OF
ACTION.
OSLO. Lucinda Powell VS.. William II. Bun
Black, C.-Action by appellee for the obstruc-
ton of a public highway A person may not
| nave an acIlOn lor tue ODsIrucIlOH Oh u puDIlC
easement which is an Injury to him only in the
same manner that it Is to all other citizens, but
he may have his action for a special injury to
him In his person, trade or estate Oecasioned by
such nuisance. There was no allegation that
appellee had abated any obstruction. or that
when actually passing along the highway he
had been delayed or turned back
by any distractions; but he ceased
to use the road because of the
obstruction, hut went by a mere circu-
itous and difficult way. To be prohibited by one
through whose lands a highway runs, from nsing
the highway, will not constitute "a special injury
from u public nuisance, or afford a right of action
for the lose and inconvenience arising from going
a more circnitous and difficult way. His INJURY
is the same in kind as that suffered by others of
the community, though 1t may differ in degree.
70 Cow, LAG; 81 Ind, 236; Angel Highways,
sec. 2S5; Thomp. Neg, 341) The nuisance be-
ing ii public one must be prosecuted in the name
of the public. Judgment reversed.
Woods, c. J,-Dissenting, thinks the allegation
that appellee was compelled to and did use q
more elrcuitOus and difficult way, shows special
damage. e Ind, 1872; 1O2 ILL.,, 379; 5. {. 40 Am.
R., 599)