The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-03-15
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-March IA.
Hon. william A. Woods. Chief Justice.

Supreme Court-Marc II.
Hon. William A. Woods. Chief Justice.
MORTGAGE OBSERVATION-DISCLOSURES.
10,049. E. B. Martindale VS.. Robert Connolly
&c al. Marion s. c..
Woods, c. J.-Parson took a deed for two lots
from Mitchell, containing this clause: '~Sub)ec5
TO a mortgage dated February L, 1873, on eacn
lot, to secure the payment of five promissory
notes FOR the sum OF $50 each, ETC., all or when
the grantee, by the acceptance of this deed, as,
sumes and agrees to pay" Mitchell represented
that there were only five notes on both lots, ana
1t was with this understanding that Parson ac-
cepted the deed. Held: The contract of assump-
ton is well calculated to mislead, but when
critically read it means a separate mortgage on
each lot, and as the deed was read to Parson IL
must be presumed that it was correctly read,
ard the mistake, If any, was one OF law. A mis-
apprehension or even representation as TO
the legal effect OF an Instrument affords no
ground for equitable relief. az Ind, l37; 10
Ill.,, 1861 And when an agreement mas
been reduced to writing the parol negotla-
lions must be deemed to be merged
in the writing, unless il is shown by mutual mis-
take the writing was made TO express an agree
nent not intended by either party. t23 Ind,
212; DO i'd, 1866; Add, 1874, 1872; 70 i'd, 4l71 No
such mistake il shown in this case. A party VINO
accepts a deed containing such q stipulation Ia
45 i'd, 552; 3 Wash. r. p, 2S0) Judgment re-
versed.
MoRTGAGE-wIFE's INTEREsr-BTLL OF REVIEW.
9,438. James Hardy vs.. Elizabeth Miller,
Montgomery c. G.
Elliott, jim cases of mortgages executed
since the act of 1870 went into force, where
there has been a severance of interests by judi
cial sale the wife is entitled, upon application,
to have a provision inserted in the decree direct
ing the husbands interest in the land to be nrst
sold, and that If 1t brings enough to pay the debt
that her interest," shall not be sold. f7O Ind,
500: 20 i'd, 567; SO i'd, a. But where
If there was any error. is in the
for review will not lie. This question was fully
considered in 20 Ind, 424; 81 id, sd. Judgment
reversed.
EscHEATED NEUTRALITY-SUSPICIOUS. ALIEN HEIRS.
1898. The State ex rel. Baldwin VS.. Martin
Witt. White c. G.
Best, C.-Action to recover land escheated to
the State. BY the act of March 8, 1861, non
resident alien heirs may inherit real estate,
whether the ancestor died before or after the
passage of the act. The complaint does not aver
that Knapp, the ancestor, was a nonresident of
this State at the time of his death, nor that he
did not leave surviving him nonresident alien
heirs. If he resided In the state at the time Of
his q ath and left such heirs, who, during eight
years after the passage of said act, conveyed the
land, it did not escheat to the State. 1t was in
cumbent upon the appellant to show title in the
State, and as the State could only take in the alb
sence OF heirs, or ON their failure to convey, 1t
was necessary to negative such facts as show
that the title may be elsewhere. Judgment at
frmed.
$685.. Indiana Manufacturing Company va.
William ]. Millican, administrator. Miami G. q.
Bicknell, C.-Where an action for negligent
killing is brought by the administrator for the
benefit of the widow and children of the de-
ceased, it is sufficient to aver that the deceased
was himself guilty Of no contrlbutory negligence,
without averring that the administrator was
free from such negligence. (53 Ind 1893; II i'd,
1922 Unless it appears by the record that all
the instructions given are before the court, the
refusal or instructions is not an aVOldaDle error.
l (62 Ind, 307; II i'd, 11O0 And where the bill or
| exceptions does not show that those contained in
it were the only Instructions given, it will he
! nrRRnna6 if nnnpa6arV- that nthar9 were given.
90 Ind, 1888; "a i'd, 900 Judgment ahlrlneo,
PARTITION OF LANDs-vENDoR's LIEN.
1886. Ellen Grams We. Commissioners HamIl-
ton County. Hamilton C. C..
Howk, 1.-The complaint of appellants avers
that in 1856 certain lands of William Conner,
deceased, were partitioned among his heirs, that
they could not be equally divided without loss and
that Alexander H. Conner should pay certain
specified sums to appellants in nine years from
date, the land set Off TO him being worth that
much more than the land set off to appellants.
BY agreement OF all the parties, appellants, who
lswere minors, being represented by their guardi-
aus, the court rendered Judgment FOR such sums,
which Judgments became a first lien on all the
lands OF said Connor. AS the parties were re-
! stricted by the agreement from proceeding on
the judgments for nine years after rendition,
their lien continued for nineteen years. IL. y.
1881, sec. 608) The taking of these judgments
constituted a new security by which the vend-
Or's lien of appellants on the particular land set
of to said Alexander Conner was waived. 90
Ind, Isl; go i'd, 74l Judgment affirmed.
sHERIFF's s-ALE-PAYMENT OF PURcHAsE
MONEY.
1885,, John M. Canadian VS.. Allen Yerkes.
Fountain c. C.
Morris, C.-Aetion by appellees to en-
Join the sheriff from executing q
deed. The payment of the purchase
money is a condition precedent to the delivery
of the deed by the sheriff to the purchaser. AS
Ind, 274.l The liens of judgments attach to the
fund produced by the sale of real estate in the
same order as to priority in which they consti-
tuted liens upon the real estate itself. (HeFman
Ex.. section 2z9; Freeman Elk, section 347.l In
order to perfect his sale and entitle himself to a
deed, a Judgment creditor who bids III property
1 at sheriff7s sale must pay in cash d sufficient
sum To discharge all Judgment liens which are
prior to his own. An execution creditor who
bids in properly upon his WI execution and APP
plies the bid to the mt of his own judg-
ment is not regarded as an innoeent purchaser.
CHerman Ex, 32S; Freeman ill.,, 300) Judgment
affirmed
The following cases we're also decided:
10,032. Wulschner VS.. Sells. Marion S. c. AT.
hrmed. Bicknell, c..