The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-12-13
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-Dec. IL
Hon. Geo. V. How1. Chief Justice.

SALE OF LIQUOR WITHOUT LICENsE-PLACE.
:, II 344-The State VS.. Clarence ]. Woosey.
Montgomery e. G.
Howk, G. 1.-The affidavit and information
charged the defendant with selling intoxicating
liquor without a license "tO be then and there
drank on the premises where sold" There was
no allegation that the place where the liquor was
sold was the premises of the defendant. The
motion TO Quash was rightly sustained (52 Ind,
oZZ; 30 III, 1929 Judgment affirmed.
ApPEAL-cAsE STILL PENDING.
11,122. The State VS.. Robert Spencer. White
Elliott J.-Where a trial has resulted in favor
or the State and the court has set aside the YER
dict and granted Il new trial, an appeal from
such decision will not lie to this court. Appeal
dismissed.
oBsTRUcTING HIGHwAYs-EvIDENcE.
1O,234 Joseph B. Matlock VS.. Newton NJ.
Hawkins Wayne, q. Z.
Howk, C. J.-ActiOn by appellant to recover
damages for the obstruction of high
way. The court did not err in excluding
the record of the township trustees, offered by
appellant for the purpose of showing that the
road was entered and recorded public high
way i'll 1857 1t appears from this record that
the petition for the road was signed by only two
persons, while less number than twelve sign
ers would not confer jurisdiction the town
ship trustees, under the act of 1852. Cease VS..
johnson, this term} Judgment affirmed.
MISREPRESENTATION - CoNTEMPoRANEoUs IN
STRUMENTS.
10,o14. Thomas Lucas VS.. Henry A. Hendrix.
Huntington Q. G.
Hammond, j Action by appellant against the
heirs of Isaac Hendrix to review a Judgment in
favor OF the decedent in his lifetime. The com
plant in the original action by the decide Mt
upon deed executed by him to his son Benz.
Hendrix. The deed contained a condition re-
curing said Benjamin to pay said Isaac S440 a
year for five years, upon failure to pay which
the payment might be enforced by the grantor.
1t was alleged that default had been made in
sueh payment, and the prayer that the
deed be cancelled and the plaintiffs title
quieted. The reservation was not condition
Il Mo, 240 81 Miss, 461; Jones Mort, sec. 22S;
Ind, 101 80 i'd, 1859 Although the prayer
was not for foreclosure, the facts stated entitled
the plaintiff to such relief A defective prayer
for relief is not reached by demurrer but by mo-
ton to strike out OF to make more specific, (25
Ind 473 40 i'd, 1885, Works Pr, sec. 224)
Appellant answered the complaint by alleging
That he held mortgage and certificate of sale
on the premises; that the annuity in the deed
was an advancement to Benjamin Hendrix and
that contemDoraDeOus with the deed receipt
for such sum signed by Benjamin. which
con talned an agreement that said annuity was
only to be paid in the event of the grantor be-
coming needy, and that he had always been and
remained in affluent circumstances up to the
time Of said suit and that there was nothing
strued as one contract. (2S Ind, SOP; II i'd, III
Is i'd, 339) Benjamin could have awaited him
self of this defense had he chosen to do so, and
there is no good reason why one who had ac-
CURED rights in the land under him might
not interpose the same defense $50
Ind, 556j The answer was good and for the
error in sustaining the demurrer TO it, the judg-
ment in the original cause OughttO be reviewed
Judgment reversed
CONDITIONAL CoNVEYANCE-BILL OF EXCEP-
TIoNs-TITLE OF GRANToR.
1919 Franklin Landers VS.. Francis M. Beck.
Hamilton G. @.
Elliott, J.-Appellees' complaint alleged that
they conveyed a large amount of real aud per-
sonal property to appellant to secure q debt of
appellee francis; that appellant agreed to pay
certain other debts of said Francis. advance him
money to carry on the farm, of which he was to
remain In possession, and, after said debt should
be paid, reconvey said land to the appellees;
that, In disregard Of his contract, he refused TO
conveyed the land to one VOss. The complaint
shows a convey ance to Landers upon his prom
Use TO perform certain acts, and this promise is
enforceable. 1t would besso even though the ap-
lana. 60 Ind, 562; II i'd. SOC; 70 i'd, 1850
Where bill OF exceptions is filed at the term at
which the verdict is rendered, il Will be
presumed, as to all the rulings the
trial, that leave was obtained to re-
duce the exceptions to writing at the time
the rulings were made. $50 Ind, Pitzer vs. l.,
P. d G. Railway Company Exceptions to in
structions may be reserved by bill of exceptions
as well as by notes upon the margin. Works
Pr, sec. 1876; "a Ind, 1911 There was evidence
deed from appellees until after Francis M Beck
had been adjudged bankrupt and his property
transferred To an lgnee, and the court charged
that that fact wouid not be a defense to the
action. This was error. Appeees were bound
to show performance by the conveyance of title,
and II the husband had title when the con
Veyance was made he could not perform his oral
contract upon which the aeti0n rests The oral
agreement, until carried into execution by a con-
veyanee was not enforceable. Unless there was
performance by conveyance, the oral agreement
was within the statute of frauds and not infOrce-
able. Judgment reversed.