The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-06-09
THE COURT RECORD.
Supreme Court-June Z.
Hon. Byron X. Elliot, Chief Justice.

1925. John NJ. Maxwell VS.. William NJ. Vaught.
Bicknell, G. C.-Where a special finding shows that
lands held in trust for another and that the holder
has other interest than as trustee judgments
against the cestui que trust bind the land in the order
of their priority, and junior Judgment creditor will
gain priority by proceeding in equity to subject
There are certain equitable interests in land which
not subject TO the lien of judgment against the
holder but this rule does not apply to lands held in
i'd, 101 81 i'd, 249; "a i'd, 411) Judgment re-
yersed.
10563. George W. Keene, administrator VS.. Samuel
q. Breckenridge Dearborn c. c.
Hewk 1.-The questions in this case are the same
those decided in keene Breckenridge, this term
Upon the authority of that case, the Judgment is
affirmed
PLEADING TESTED BY ITS GENERAL SCOPE.
1926. Western Union Telegraph Company VS..
Theodore w, Reed. Decatur G. G.
Elliott G. Jon petition for rehearing Appellee
argues that the complaint is good for special damages
1t is plain. however that the theory of the complaint
for the recovery of the statutory penalty and it
is evident from its whole scope and tenor that the
pleader intended to present cause of action upon
that theory and other In order to bring the par
ties to Issue is necessary to require them make
their peadngs conform to some definite theory and to
be sufficient upon that theory. Our cases have
steadily maintained the rule that pleading must pro-
coed definite theory must be good on that theory
(93 Ind, 10S 81 i'd 96 SO i'd 1928; IS i'd, 303)
Judgment affirmed.
COUNTY CONGRATULATIONS TRAN
SCRIPT.
1920. Adam Shrk ct al, vs. Daniel B, Moore.
Howk. J-This was an appeal in a highway case
from the county board to the Circuit Court. The
record does not show that any appeal bond was exc
ting out the proceedings of subsequent term of the
county board without containing those of the term
which the petition filed and the proceedings in
stituted The appeal was properly dismissed for the
that the appellants had not perfected their
peal so to give the Circuit Court Jurisdiction. Us
r. i III l
Judgment affirmed.
NOTE FRAUDULENT observation-disclosures
PURCHASER.
10714. Theo. Kastner George Pibilinski. La
Porte c. 9.
Elliott, G. J-Badner wished to give his daughter
at her marriage with the appellee promissory
part of her marriage portion and executed what he
informed was an Endorsement OF the note TO her
but her husband the appellee fraudulenty made the
Endorsement to himself instead of to his wife. He
then pledged the note which was not payable in
bank, and past due, to appellant, to secure
loan of money. The daughter not of age at
her marriage, 1t is only where there is actual fraud
that infant is precluded from asserting his rights
AS Ind, 142; 81 id, Ill; 81 n Y, 249.) An as
signee Of such note takes better title than his
assignor had The doctrine that negligence the
part of the maker ndoPsef will preclude him from
defending against bona fde holder, does not obtain
where the note is commercial and is assigned after
maturity. AInellees fraud in making the assignment
to himself instead of bis wife cannot change the
nature of her title. Equity considers that as done
which ought TO have been done. The purchaser of
pastdue noncommereial papers must inqui as to
the title of his assguor and the defenses against the
note. az Ind 226; 20 i'd, 1856 so N. Y, GIL
Judgment affirmed,
DfvoRcE-cARE OF MISUNDERSTANDING
l0306. Sarah j. Dubois vs. Willis johnson. Ma
rion S. G.
collars, 1.-THE question presented is this; Where
in the complaint for divorce attack is made on the
character for morality and chastity of the defendant
and she is awarded the custody of the child. in
ton afterwatd to modify the decree can her unchas
tity and immortality both subsequent and prior to the
decree be shown? Although such issue made
by the pleadings the question Of the fitness of the
parties to have the and costody of the children
is fully before the court if specific charges
made. The duty. of making proper provision for the
children is imposed upon the court Independently of
the pleadines. 90 Ind, 10Y; 81 i'd. 164; A i'd
1861 Whatever Is competent evidence as to
the fitness of the parties for the care and
custody of the children the court may and
should hear, in deereeing the divorce
When the case has been heard and final decree
tered the doctrine of adjudicata applies as in any
other case. And where testimony is heard but the
order is made upon the agreement of the parties to
the fitness of the taking the custody of the chill
dren that agreement is binding and the order and de-
cree made thereon is adjudication the if
evidence had been heard For the purposes of the de-
cree the agreement takes the place of testimony. In
such case where the court reserved the right to
modify the decree, such modification must be based
unon the conduct or changed circumstances of the
parties subsequent to the order made in the divorce
case. (l3 Ind, 523; 81 i'd, go; 40 i'd, 252; 100
Mass, 300; "a Mich, 1863 Judgment reversed