The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-06-19
CERTIFICATES OF OBSERVATION-DISCLOSURES
GAGE.
1857; Henry whipperman vs.. Jacob C. Smith

1861. Henry Whipperman VS.. Jacob c. Smith
ct al; White, {. @.
Elliott, {. IA certificate of stock in a loan asso-
citation, or Other corporation, does not carry with it a
contract or promise to pay money. 1t simply invests
the holder with the rights of a corporator, or stock
holder; no action, therefore, can be founded thereon,
except TO vindicate she rights of q stakeholder, or to
recover such benefits as a stakeholder is entitled to
under the statute, articles of association and bylaws
of the corporation.
And the assignment of such a certificate is not like
the assignment of Il prOmisory note or bill of ex-
change, and there is no liability upon such an assign
ment, which simply transfers title to the assignee,
and does not bind the assignor to any personal LA
bihty.
Herein there was a mortgage given, based on the
three certificates of stock, which were assigned as
part of the payment for land. sold the ~assignor. The
mortgage contained this provision: THE mortgageOr
expressly agrees to keep paid up promptly all dues on
said three shares assigned to the mOrtgagee herein,
coming to the associations. that, upon the failure
so to do, said mortgage shall have a right to foreclose
as a part of the purchase money for all dues necessary
to complete said three shares and make them par"
There is an essential difference between a mortgage
containing a promise to pay money and one not CON
tanning such a covenant C2S Ind, AGA; 81 Ind, 361;
81 Ind, 1872; SO Ind, $50; 92 Ind, 24) In this
mortgage there is no promise to pay the amount of
the certificates, nor to pay the purchase price of the
land. The promise is merely to Fay all dues, so as to
keep the stock in force for whatever value it may have.
Judgment affirmed.
CONDITION OBSERVATION-DISCLOSURES.
1888. Joseph B. Ellis ct al. vs.. Elkhart Car
Works Company ct al. Elkhart c.. c..
Elliott, C. J.-Herein appellant decided land to the
aIpeAtG liz COnSA1cAdeloh' "a oh IA Oltlbl
that if within three years the appellee should fail to
use the land for the manufacture of cars six consecu-
tive months the land should revert to the g~rantors.
There must, as a general rule, be a demand of
performance by the party entitled to insist
upon the forfeiture of tbs estate. (s6 Ind.
there are exceptions to this general rule. And this
case furnishes such exception. The grantor, in such a
deed, could not demand performance until six months
had elapsed of failure, and when six months was ex-
| pired, the breach was complete without a demand. If
a demand should be held essential, then there would
be an extension of time beyond that expressly provided
in the deed, and this would be in effect to add a new
provision to that instrument. The case is different
where there is no specification of the act to be done,
and no fixed limitation as to the time of performance.
an entry. (66 Ind, $50; 81 Ind, 564) But the de-
mand must be such as the law requires. And If the
demand for possession rest on a breach of condition,
the complaint must cover the breach of condition.
Yet an entry is sufficient without a declaration that 1t
is for a breach of condition Us Conn, $685. Smith 25
Leading Cases 81 ed. 124)
Conditions subsequent are not favored, and courts
will not divest an estate, except in clear cases. A strict
performance of the condition Is not required; but only
a substantial compliance. And in constituting the
deed a liberal construction in favor of the grantee
will be adopted. Herein, the condition did not require
that any cars should be completely built within that
time. but only that the process of manufacturing
shorld not cease for six consecutive months, And
performance before entry or demand will be sufficient
which was the case herein-although it was held
that the court erred in sustaining a demurrer to the
first paragraph of the complaint, for which judgment
is reversed.
SUIT BY OR AGAINST AN ADMINIsIsTRAToR-EF-
Feet OF A STATUTE OF LIMITATION Oh A
MORTGAGE DEFAULT s~UBRoaATIoN OF
SURETY.
10SS2. John o. D. Lilly ct al, VS.. William Max
Dunn ct al. Marion S. c.
Niblack, J.-An administrator is a trustee of the
personal estate, and it is the duty OF a trustee to pro-
tect and defend the title to the trust estate. As the
legal title is in him, he alone can sue and be
| sued in a court of law concerning the
estate in his hands. (Hill, Trustees, 545;
Perry, Trusts, secs. 1928, 500 In equity, however,
a different rule prevails. Trustees and eestri que
trust are the owners Of the whole interest in the trust
esiatei and, therefore, in suits in equity in relation to
the estate. by or against strangers, both the trustees
and cestuis que trust must, or at least generally ought
/ TO- be parties representing that interest. tHll, supra,