The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-05-12

which contiguous to q vacant lot which there
was path, diyerging from and returning to the side
walk, and which the public had been accustomed to
for eight years. 1t was while pursuing this path,
dark and rainy night that the plaintiff fell into
the excavation. The fact that for long period the
pubic using the sidewalk had been permitted to use
the path part of the sidewalk made it the duty OF
the defendant to guard the excavation at that place
Q6 Ind. 314: Wharton Neg. $40; GS y. Y. 2S31
Evidence that the plaintiff poor and had no prop
elty tended to prove that when she ceased to work
after the accident it because she was compelled
by her injuries and to sustain her statement that she
commenced to work again before she was tuiy re-
stored I'll N Y, 4l6) Judgment affirmed.
NEUTRALITY-SUSPICIOUS. observation-disclosures
NATION.
1905. Ari Armstrong vs.. John Short ct al
collars. J.-Appelant foreelosed a mortgage on five
pieces of real estate bought them in at sheriis sale
and took deeds therefor As to two of the tracts the
descriptions defective that title con
veyed by the proceedings Meantime the mortgagers
had conveyed the lands to another, who took them
with notieeof the mortgage This an action by
appellant to reform and toreelose the mortgage against
said tracts and to recover their possession Appellant
testified that he knew when he accepted the mortgage
the descriptions that were in them and thought they
good. 1t is clear that there was his part
mistake ofact, but of the legal effect and import of
the descriptions In such case there can be no
554 rs i'd. $40; 50 i'd 39.) Where amortgage has
been forecosed and the land bought in, the mortgage
may be still reformed and forelosed when the de
fective description is mistake of fact and not of law
10 Ind. 443D Bot in such case there can be no
reformation of the sheriffs deed in the way of
recting erroneous description contained in the
mortgage. al Ind, 300; SO id SD Judgment
affirmed.
LOCATING HIGHWAYS -RENfoNSTRANCE - PRAC-
TICE.
1919. Margaret NJ. Denny ct al. VS.. Zachariah
Bush ct al. Marion G. c.
Bicbnell, C. C.-To the opening of a highway Flem-
ing demonstrated, claiming damages before the board
of commissioners but his claim was dismissed He
did not appeal but Bush, another remonstrant did
and in the Circuit Court Fleming permitted to
file his remonstrance. This was error. The jury
not to try that issue the only issues be tried
appeal being those made before the county board
(S6 Ind. 3d. "a i'd, 454; 80 i'd, 50) The court
also red in permitting the remonstrants to file plea
IN abatement of the petition after the jury had been
sworn and witnesses examined. (24 Ind, 1863 The
plea alleged that of the petitioners induced
to sign upon agreement that a certain amount of
fencing would be built for them. But it was not
shown that there not enough siqners without
ment illegal or opposed to public policy good NOR
ais (34 Ind 154; 50 i'd, 352; 81 i'd. 1877; 80 o..
ST., Ali; SO Ind, 81 Judgment reversed.
WIDOWS RIGHTS IN DECEASED HUSBANDS Es-
TATE,
1120l. Christina L, McCord vs.. Arthur L.
Wright, administrator. Marion {. c.
Howk, G. J.-Where the real estate Of q decedeut is
encountered by mortgages in which his wife Joined, it
is the duty of the administrator to apply the personal
estate of the decedent to the payment of the mort
cages to the extent of the widows share in the real
estate. And where he fails to do this and the land is
taken under foreclosure proceedings the widow is
titled to be reimbursed to the amount of the value of
her interest in the land of any money in the admins
traitors hands Her claim for reimbursement does
not rest in the doctrine of subrogat0n, but in the
higher and more favored of dover @ Ind. 37
81 i'd. 500 In this the court limited her re
cove TO onehird of the value of the personal estate
of the decedent whereas she entitled to onethrd
of the value of the real sold under foreclosure
Judgment reversed.