The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-02-04
THE COURT RECORD.
Supreme COurt-Jan. 80.
Hon. Geo. V. Howk. Chief Justice.


Hon. Geo. V. Howk. Chief Justice.
wILL-DIvIsIoN OF OBSERVATION-DISCLOSURES.
10642. Ezekiel Farmer VS.. Farmer, administrator.
Gibson G. G.
Best, C.-When a viii provided that the widow of
the ~testator should have the property for life, and at
her death the residue should be equally divided among
his heirs, but that she might divide the property or
any part of it, during her life, the widow was not
authorized TO advance such portion of the property as
she did not choose to keep to one of the children, IN
exclusion of the others. An equal division was re-
quired, whether made before or after her death. Nor
could she set apart a portion of the common property
to one without any division, and thus divest the title
of the others TO such portion. The case made shows
that the decedent was indebted to appellants in the
sum of 81, 900; that she paid it to one of them; that after
ward, when her estate was sued upon another claim,
the administrator obtained credit for said sum. inns
estops him, in the present action, to say that any such
sum was ever paid. Herman on Estop., 1862 Judg-
ment reversed.
SALE BY HUsBAND TO wIFE-PossEssIoN.
11O71. Thomas NJ. Riner VS.. Susan s. Rhodes.
Colerick, C.-Where a wife is surety for her husband
on a debt which is secured by mortgage on their joint
real estate, her assumption of the debt constitutes a
valuable consideration for the transfer OF personal
property TO her. go Ind, 1l2.) The fact that the
appellee was a married woman did not render the con,
tract as to her invalid, all legal disabilities of married
women having been abolished. tSec. 81, X. So The
possession of the property by the husband after the
sale would not of itself make the sale fraudulent, if he
remained in possession merely as the wife S agent. $50
Ind, 310) Judgment affirmed.
NEUTRALITY-SUSPICIOUS. PRACTICE.
1O298. Abraham PIERCE VS.. Martin D. Garrison.
Whitley c. c.
Black. CA complaint which alleged that the de-
PENDANT was about to cut a private ditch from his land
into a ditch established by law and paid for wholly by
the plaintiffs thereby changing the natural
the water which would thus be conveyed into said
ditch would cause it to continuously overflow, to the
irreparable damage Of the plaintiffs, a good cause for
injunction was shown. The trial of actions for iniunc-
ton must now be tried by the court, but the court
may, for its information, cause any question OF fact
Tpun1yal 4 n ha fpfal hw a s1-r Srah CracHopE ~ fact
should be stated to the jury in interrogatories to be
answered by them. The court is not bound by the
answers of the jury, but may adopt or reject all or any
OF them and make its own conclusions upon the evi.
dence. The hearing of questions of fact for a per
petual injunction is a trial. Errors committed on the
trial of questions of fact before a jury in a suit in
equity may constitute cause for a new trial, so far as
the finding of the court has been affected thereby. In
regard to weighing conflicting evidence the practice in
this court is the same in equity as at law. (SS Ind,
515; 81 n. Y, 353; so i'd, All; 5 Wis, ABB Judg-
ment affirmed.
The following cases were decided on Friday, Feb
ruary L:
MoRTGAGE-wIFE's INCHoATE INTEREs
1O935. Pinkie w. Pattison ct al. VS.. James S.
Smith. Blackboard G. G.
Colerick, C.-Where the real estate of the husband
was sold on execution against him. and between the
time of snch sale and the execution of sheriff deed
to the purchaser the husband and wife mortgaged the
the wife's third of the land. The wife's interest
became absolute as soon as the sale was made, and her
title related back to the date of sale. 80 Ind, 2S5;
50 i'd, l; 80 i'd, 2S5; 20 id, 234) Judgment at-
hrmed.
APPEALs-NoTICE TO ATTORNEY OF RECORD.
1o728.-Lueinda Richardson VS., jackson J. Pate.
Ohio C. c..
Hammond, jim taking appeals to the Supreme
Court, service of notice on the attorney of record is as
good as upon the party himself, in the absence of a
showing that the appellant had notice of the attor-
ney's discharge, The fact that the attorney
ties only makes no difference, The
service of notice ON the attorney is the material point,
and when made is good as against all the appellees for
whom he appeared Of record in the trial court. Pet-
ton overruled.
CONTRACTS FOR COUNTY STATIONERY,
1922. Commissioners Madison County VS.. VIM.
3. Burford. Madison c. G.
Elliott, 1.-THE statute limiting the power of county
officers TO bind the county in the purchase of station
cry should receive a liberal construction. II Is not an
invasion of common right and it is but reasonable that
contracts for furnishing such supplies should be let to
the best bidder, ascertained by fair and open COMPETE
ton. Petition for rehearing overruled.
INSANE PERsoN-AcTIoN -pIsMIssAL-APPEAL.
ss77. VIM. Robson VS., John j. Martin. Franklin
c. {.
Black, CA person under guardianship, as a per-
son Of unsound mind, cannot maintain an action to
Guardian pnaPrdian. s e5S Ind Uf pSg? 57gy w Raa' by oan h,s
is dismissed on motion the grounds of
the motion and the exceptions to the ruling thereon
of exceptions. 40 Ind, $685. IS Ind, 372i go i'd,
30 Judgment affirmed.
REAL STATE-SECRET EQUITIES-NoTICE.
1901, Martin V. Vert VS., Mary G, Naylor.
Montgomery C. G,
BicIneT, c. CA precedent debt is a valuable con-
sideration for a mortgage given to secure it, but It will
not make the mortgage a bona hde purchase as against
prior equities of which he had no notice. (53 Ind,
499; 63 i'd, $40; ~ id, 4l3) But the conveyance OF
land by a debtor to his creditor in absolute payment
and satisfaction of a precedent debt makes the credi-
tor a bona-hde purchaser of the land as against Il ven
doris lien for purchase money of which he had no no.
tice. q Pom. Eq. 20S; 29 Miss, 1876; Sid, 236; 81
Ala, 2I4i 3 Story, 364l Judgment affirmed.
WIDOWS INTEREST IN LAND-oTHERH HEIRS.
1878. Belinda Mathews VS.. Naomi Pate ct al.
Lawrence c. G.
Elliott, J.-Land Of a decedent descended three
fourths to his widow and one-fourth to his father,
Afterward the administrator of the decedent sold the
fathers share for the payment of debts. Upon the
death of the father his heirs brought partition against
the widow, and the court held them entitled to one
fourth of the three fourths set off to the widow. This
was error. The widows rights cannot be cut down
by any other persons than creditors, and then only to
the extent that may be necessary to pay the debts of
the husband. Her share in the land cannot be re-
sorted to by creditors until the shares of all others
have proven insufficient. As between her and the
heirs of her husbands father. her share in the land
could not be reduced. (32 Ind, 497; % i'd, 462;
As id, 40; SO i'd, I'LL rs i'd, 476; 63 i'd, 60
Judgment reversed.
BaLMY sleep, good digestion, rich blood, elastic
step, and c%heerfulness in Hop Bitters.