The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-06
THE COURT RECORD.
TO SURETIEs-CoNTRIBCTI ADJUDr

Supreme COurt-NOv. 3.
Hon. W. f. Niblack. ChiefJustice.

90 SURETIES-CON OBSERVATION-DISCLOSURES ADJ JDl-
CATION.
10,225. John n. Leamau vs. George W. Sam
pie. Hancock C.. G.
Bcknen, C. C-COmplaint by appellant for
review of a Judgment. The original suit was by
appellant against appellee to obtain cOntribu-
ton as a co-surety with appellee for one Isaac
Leaman. Appellee answered shat the matters
alleged in the complaint had been fully heard
and adiuulcated between the parties at the
March term, 1875, of the court This answer
was good on demurrer If it was not sufficiently
specific such defect was not available on demur-
rer. (S2 Ind, $50; II id, 1921 In the suit
upon the note the appellee answered that he
signed the note as surety and prayed that there
be no stay OF execution on the Judgment unless
the replevin bail would agree to pay the same
on failure of the other defendants to pay II, anu
all the defendants filed joint answer IN which
they alleged that Isaac Leaman the princi-
pal In the notes, and that appellant and appellee
were suret1es. There was no issue between
the sureties. On these facts the court erred In
finding that the question of suPeJyship AS be-
tween appellant and appellee had been deter
mined. There being no issue in the original suit
as to the question OF suretyship between the APP
pellee and appellant there could be no legal and
binding adjudication OF that question as to them.
Judgment reversed.
RESEMBLING DEED-TENDER.
1O,493. Indiana Burgett VS.. VIM. E. Teal, ct
al. Shelby G. c.
Bicknell c. CA complaint by the heirs of the
grantor to have deed reseinded for fraud
which falls to state repayment, or an offer OF re-
payment to the grantee OF the money paid by
him for the conveyance ia bad. (6S Ind, 476
81 i'd, 81 II i'd, 1879. And an allegation that
the plaintiffs did not know the amount paid by
the grantee, and that he concealed the amount in
order to prevent tender thereof, is not sur
tfcient excuse for such failure. Judgment af-
hrmed,
wILL-CoNDrTIoN IN RESTRAINT OF MARRIAGE.
Hill. Elizabeth Crawford vs.. Martha Thomp-
son. Montgomery G. G.,
Black, CA testatOr bequeathed all his per-
sonal property, after payment of debts and GER
tam specified legaeies, to his wife on condition
that she pay 500 a year to his daughter, Martha
Fox, as long as she should live, provided that if
Martha should live with her then husband or
should marry again, she should not he entitled
to such annuity. Her first husband died and she
married again. This suit was to compel
payment of the annuity. The widow having
married again her husband was properly
Joined with her as a defendant. The act of
March 25, 1879, did not repeal or modify the re-
quirements of section 8, code or 1S52-that her
husband must be joined with her when the wife
is made part defendant. Section 5,127, r. s..
1881, provides that when any woman against
whom a liability exist shall marry and has or
acquires lands Judgment on such liability may
be rendered against her and her husband joint
ly, etc. In such case both are proper defend
ants. The complaint shows that under the Will
the wife acquired lands which she still has. The
VIII must be construed creating The widow a
trustee for the legacy to the daughter, rather
tnan as holding the residue upon conditions
subject to forfeiture When the language of the
Will and the intention OF the testator admit it,
beguests ION condition" subsequent are eOnsid-
cred as imposing a trust, and not as conditions
which shall take the property out of the leg
aztec II he does not comply. Civilians on EXrs.,
1,26O9 A gift in trust upon condition that the
beneficiary shall not marry at all will vest i'll the
donee ana the condition Is VOID. Perry on
Trusts, Sec 515; 8 Mass, 1872 The restraint in
this case was made u partial and reasonable
one, but amounted to total prohibition of the
daughters second marriage, and the condition
therefore void. The plaintiff entitled
TO recover ner annuity. Judgment affirmed.