The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-05-12
THE COURT RECORD.
Supreme COmrt-May 10.
COMMON INCUSTBRANCE - REDBMPTIoN-CoNTRI
BUTTON.

COMMON INCUSIBRANCE -REDBMPTIoN-CoNTRI
BUTTON
1921. Sarah Henderson VS.. Sarah T. Truitt.
Niblack J.-Where the estates of two persons are
subject to common ineumLrance which one pays for
the benefit of both he has the right either to hold
both estates thus retained until the other party pays
his equitable portion of the incumbrance or he may
enforce contribution from the other party therefor.
But the equities must be equal and the party paying
the ineumbranee is financially liable for its payment he
claim nothing from the other, however much the
latter may be benefited. q Jones Mortgages, sec,
l0S9l Where mortgager sells a part of the mort
gagged lands by warranty Decd such deed exempts the
land covered by it from contribution in favor of the
mortgager or any one else claiming the remaining
mortgaged land under him. with notice of the convey
ance. Jones ID. sec. 1000, 1091.) In this case
Henderson purchased part of the mortgaged lands
nearly a year and a half subsequent to the time
McClamrock received warranty deed for the part
purchased by him. Consequently, the lands purchased
by Henderson became primarily liable for the payment
of the mortgage debt and If Henderson had paid the
debt discharged the decree of foreclosure he would
have acquired right of contribution against the de-
PENDANT as the grantee of McClamrock. As the plain
tiff acquired the right to redeem the lands from the
sheriff sale through her marital relations with Hen
derson she assert greater right in that respect
than he could have done upon payment OF the mort
gage debt Her complaint for contribution from the
defendant of an equitable proportion of the money
lands was, therefore, insufficient Judgment af
frmed.
s-FE2sCEs-EvIDENCE
1l13s H. N A. & G. Railroad Company vs.
David link Washington G. G.
Hammond J-Action to recover the value of cow
killed ON appellants railroad The only question is
whether the road securely fenced at the place in
controversy. The evidence tended to show that the
road was not fenced the south side opposite to the
appeees enclosure, to the place where the
was killed. Judgment affirmed.
ERRONEOUS JUDGAfENT-PRACTIcE.
1928. Joshua Strange VS.. VIM. H. Taylor Grant
G. G.
Colerick C.-Appellant claims that the judgment
in far it based upon the second paragraph of
the complaint rendered in the absence of evil
dence supporting it. This fact, if true would prob
ably have been a sufficient cause for the granting of
trial. but the court below a motion to modify
the judgment, could not review its former finding and
Judgment as to any question of fact decided as relief
from such can only be had on appeal. Us Ind
1861 The motion to modify the Judgment was prop
ery rejected Judgment affirmed
EvIDENCE-RECoRD OF FORMER sUIT-ADvERsE POS
SESSION
1928. Samuel @. Rucker VS.. James Steelman
Clark G. G..
Elliott 1.-THE record of former suit between the
dence and the fact that in the former action more
property involved than in the later does not
render the former record incompetent The possess
ion of execution defendant is not an adverse pos
session within the meaning of the rule prohibiting the
execution of deeds by the owner out of possession
Possession taken under an execuory contract of pur
chase does not become adverse as long the condi-
tions covenants of the ontPac remain nperformed
III Ind 302 70 id. 1872 Judgment affirmed.
1024O. John Voter Geo w. Laurence, Kos
Franklin O.--0bection is made TO the complaint
No question raised upon the peadngs in the court
below motion made for a trial but the find
ing of the court made by aere ement Each para
graph of the complaint would have been good on de.
murrer. There is no merit in the appeal Judgment
affirmed, with 10 per cent damages
MANUFACTURED ACKNOWLEDGEMENTS.
1000. Nathan Poland William Miller ct al.
Shelby c. c.
Best, C.-Suit by appellees for damages sustained
by them in the of defective barrels in which they
had stored whisky. The second paragraph of the
complaint alleged express warranty that the barrels
suitable for the purpose for which they
made and sold. This paragraph good without
averment that the defects not open and notorious
This matter of defense. Il Estee's Plead, $50
Igleharts p. and p, $40 10 Ind 40 This para
rightly overrued In such case the loss, if any
sustained by the of barrels which the appelees
knew were unfit for use must be borne by them, but
whether not the appelees negligent in storing
their whisky in unfit barrels a question of fact
that properly submitted to the jury. A sale of
the barrels for the purpose of enabling the appellees
to store their whisky in them carried with them an
implied warranty that they reasonably fit for that
purpose. Judgment affirmed.
UNGUARDED EXCAvATIoN-PUBLIC WAY-EYI-
11476. Emelne Graves Amelia Thomas. Yigo
s. G.
Black C.-Ths court will not inquire whether
not fine of the jury to interrogations in
consistent with their general verdict unless the record
afrmatively shows that the court submitted the IN
terIogaOres at the request of of the parties 90
Ind, AIS; 50 i'd. 1922 The suit to recover dam
ages for falling into an excavation for building which
was left unguarded. The excavation was lot