The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-15
THE COURT RECORD.
Supreme Court-Jan. IL.

Hon William A. Woods Chief Justice:
MoRTGAGE-DEFECTIvE Observation-Disclosures.
962S. Samuel Pence VS.. Nathan Armstrong
Henry c. G,
scripti0n OF real estate in mortgage is as to the
location of a certain lot, where the description
begins, such defective description may be rem
dereu certain by proper averments in the com
plant. 40 Ind, 3S5; SO i'd, 1868; 20 id, 1lS)
Where one boundary line is described as running
to the ground" OF II railroad named, the word
"gr0und" will be nstrued 10 mean the right of
way of such railroad, and the description is not
uncertain. 1913 Ind, 246J The replevn bail on
Il judgment who has paid the same will be sub
rogated to the rights of the mortgagee in the
mortgaged property. rs Ind, l03; 70 i'd 242;
70 i'd, 033l Where the description in a mortgage,
though defective, is sufficient to put pur
chaser upon inquiry aud charge him with
notice of the extent of the premises intended to
he covered, 1t may be reformed aud fOreelOsed
against such purchaser. (Wade on Notice, $780,
20 Ind, 235.) The replevn bail who has paid
the dgment may either foreelose the mort gage
for his benefit, or collect by execution the iudg-
ment rendered against the maker of the note, or
enforce the promise made by purchaser of the
mortgage property to pay the debt, and If he
adopt the first course the purchaser of the mort
gagged property can only proceed in equity to
compel him TO exhaust the other securities first,
but cannot plead such facts in bar of the fore
closure. Where the replevn bail has pad n
Judgment rendered on foreclosure of a mortgage
mis- lien has priority from the date of the mort
gage. IA Ind, 10; IA Id, 56o. Judgment
affirmed
REINSTATEMENT OF JUDGMENT-PRACTICE.
s,50S. Joseph Cox VS.. Leouidas sout. Orange
c. c.
Black, C.-Where a party is summoned to show
cause why a Judgment should not he enforced
against property in his hands, the fact that it
should be paid with assets previously liable in
the hands of another person Is proper matter of
defense, and should be set up by way OF answer
IN reinstatng Judgment, the record OF which
has been destroyed, it is not necessary to rem
state the pleadings or TO perpetuate the evidence
of their existence contents. 100 Ind, 500 J
The reinstated JUDGMENT has the same force and
effect as the original, and an execution may be
Issued on 1t without proof OF the pleadings In
tine original action. Judgment affirmed.
OBSERVATION-DISCLOSURES CHILD.
$500. William A. Wolford VS.. sybella Powers.
Allen q. @.
Elliott J.-Appellant sued on a note for 3d.
900, executed by appellees intestate, Charles
Lehman. The reply, to which a demurrer as
sustained, shows that the note executed In
services rendered to him by appellant, such as
driving him out occasionally in carriage. and
the best0wing on appellants son rhe name of
the intestate, the latter declaring his intention
TO provide generously for the child's care and
education if his father would SO name him. 1t
is general rule that where there is no fraud,
and party gets all the consideration he con
tracted for the contract will be upheld. g Ind,
80; 4 3D., 552; 6S Ia, 405; II i'd, 1868; 10 Ad.,
and Ellis 30S; Pick, $50: l Am, Dec. 600; GA
n. Y, 500; % Am. Rep, 5l7; rs N, Y, 81; 81
Wend.. 5SS; 46 Barb, 800 There two ex-
ceptions TO this rule; first, where the sole
sideration is money, and the amount is greatly
disproportioned to the value OF the promise;
second, when the consideration is grossly dis
prOportiOnate to the value of the promise
to indicate fraud and shock the conscience.
But under the second head the courts really in
terfere upon the ground of fraud, and not of in
adequasy of consideration. They never interfere
unless the consideration is so gross TO amount
to fraud and oppression. q Pom. Eq Jur Sec
927; Story Eq., Secs. 244, 245) Where party
contracts for the performances OF an act which
will afford him pleasure, gra5ity his ambition,
please his fancy, or express his appreciation Of
"A service another has done him, his estimate of
value should not be disturbed unless there is evi.
denee of fraud The performance of service for
the intestate was a legal consideration for the
note. and go was the surrender by the appellant
IF the privilege of naming his child add. Cont
Sec. 8; 80 Tex, 296; 81 Barb, 1876; 81 Mo, 592;
23 N j., Eq. 96J There being no charge of
rand in the pleadings, the consideration for the
note must BIO held good. Judgment reversed.