The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-06-11
THE COURT RECORD.
Supreme Court-June 8.


supreme GOurC-Ouuo o.
Hon William E. Niblack. Chief Justice.
DEcEDESTs' EsTATEs-RGHTs OF MORTGAGE
CREDITOR
9,699. Peter La Plante VS.. Jerome Convery
administrator. Knox e. @.
Black, CAS- against the creditors of deced-
ent, the widow is entitled to have the lien of q
mortgage on her third of the land discharged
out of the personal assets or other real estate of
the deoedent. and where the administrator sells
the two-thirdS of the mOrtgaged land BY order
of the court, the lien of the mortgage is dis
charged from the land, but the unpaid portion
of the mortgage debt still retains Its character
of a mortgage debt and need not he filed as a
claim against the estate at all. 1t Is the duty of
the administrator to take notice of such mort
gage debt without such Hing. The admlnistra-
tor cannot sell the widows one-third and there
fore cannot extinguish the mortgage lien there
on. except by paying The mortgage debt in full.
The administrator should pay the mortgage debt
so far the assets in his hands, not required
for the payment OF debts preferred to
the mortgage debt will enable him, to
protect tha widows third from the
mortgage lien. The portion of the mortgage
debt unpaid by the proceeds of the sale constI-
tutes claim of the third class and Ia payable
before claims of the fourth class under sections
108 and 109 r. 8. 16 Ind, pa; % i'd, 274; 80
i'd, l44; 70 Id, 439.D These sections apply as
well to nsOlvent as to solvent estates. The
court erred III ordering the unpaid balance OF
the mortgage debt to be paid pro rata with the
claims of general creditors. Judgment re-
versed.
ExEMrTIoN-ABSENr HUsBASD--wIFE's AFFIDA-
-. VT.
10,0S2. John " Ashley vs.. AdOlphus 3. Cap,
Bicknell, C.-Statutes of exemption are to
be reasonably and literally construed. and
where the wife, in the absence OF her husband,
makes an affidavit in substantial compliance
/ with the statute, and claims the benefit OF ex-
emption. it ia sufficient 80 Ind, 1861 The
father, as head OF a family, may put his family
out to board, and still be entitled to the benefit
of the exemption law. And although absent
from the State, if ne is supporting aiding in
tending co return to the State to reside
when his business abroad ia finished.
he 10 to he deemed resident householder Q6
Ind, 1876; 80 i'd, $780, Thompson on Exemption,
sec. 1921 man who has IA domicile IN Indiana
does not lose 10 10y going to Colorado and engag-
ing In business there, nor by forming an inten-
ton that he will ultimately make that his resi-
dence. An intention to change at some future
time Ia not present change of residence
(52 Ind. 46l.l Judgment affirmed.
STOCK IN PLEDGE-JUDGEMENT NOT WITHIN
THE ISSUES.
1927 Isaac NJ. Rooms vs.. First National Bank,
etc, Clark C. G.
Morris, C.-Appellant In his complaint al
legged that he was the owner of certain shares of
stock in the appellee, which had been fraudu-
lently transferred on the books to one Hawley,
who assigned the certificate to one Maybury.
The court Overrued the demurrers of Maybury
amt the bank TO the complaint and sustained
that of Hawley; found generally for the plaintiff,
but also found that at the time the stock was
transferred to appellant Hawley had possession
of the certificate issued for said stock,
which he held 10 pledge to indemnify
him as surety on n note executed by the pledgeT,
and rendered Judgment accordingly. THIS
Judgment as TO Hawley was not within the
issues. When Hawley's demurrer to the com
plant was sustained the suit had terminated as
to him. His rights, If he had any, not in
issue. Nor was the question put in Issue by the
bank. Even il Hawley held the stock IN pledge,
appellant was still the owner of it and had a
right to he 80 recognized by the bank. (57 Ind,
1881 Whether the appellant owned the stock
not was the only question between him and
the bank. Whether there was any lien upon the
stock IN favor of Hawley was not q question
within the issues In the case. Nor did the facts
found show that Hawley held the stock in
pledge. Possession of the certificate for the
stock gave Hawley neither possession OF the
stock nor right to possession. A transfer OF the
stock upon the books of the bank could alone do
this. q N. Y, 443; 81 Cal, Is; 81 Ind, 1859
lie had but mere equity in the stock, and Ii it
was held a personal indemnity merely, the
bank could have no interest in it. (46 Miss, 449;
So Cal. 1876; z Conn, 475l Judgment modified.