The Advocate and news., 1898-04-20
BY the Court.

The defendant in error objects to a con-
slderatiOn OF this case upon the merits for
the reason that the parties necessary to
the determination of the questions involved
are not before the court.
The record dscloses that the defendant
In error began this action In the District
court of Brown county for the purpose Of
for partition thereof between the rightful
owners. He claimed I'm ms petition that
one Butler, the ancestor of Angellne Fur
nlsh, decided to Angeline life estate in
the lands described In the petition, and the
remainder Of the estate to the children Of
the said Angellne; that he had acquired
from three OF these children half I'M
terest In this land; that two other of the
children OF Angeline and grandchildren
were the owners of the other half interest;
that the plaintiff in error, Peoples Saw
ings Bank, claim to have mortgage lien
upon the property, made by Angeline and
her second husband, Chauncey @. Bird,
after the death OF her former husband,
James T. Furnish.
The petition further alleged that this
Chauncey G. Bird claimed to inherit half
interest from his wife Angellne that he
had conveyed this half interest to the de-
fendant ID. ". Reber for the purpose Of
securing debt due to Reber from Bird.
The petition also alleged that Thomas
T. Myers, another defendant, claimed an
interest In eighty acres Of the land by
virtue OF a quit-claim deed made to him
by Angeline In her lifetime; that Myers
claims to be the owner in fee simple under
this deed.
So that the plaintiff, Thomas Fisher,
ana the children Of Angellne Furnish were
upon one side cOntendlng that this Butler
deed conveyed but q half interest to An
geline and the remainder of the title to
her children: While upon the other hand,
Ian NalA NwWNN n. o..
Bank, Chauncey c. BIRD, D. p. Reber
and Thomas r. Myers were claiming that
this Butler deed conveyed q fee simple
title to Angeline Furnish, and upon this
claim the plaintiff In error asserted In
lts answer that Il had a lien under its
mortgage for one thousand dollars upon an
undivided half of one hundred and sixty
acres OF the land In controversy for money
loaned to Angeline and her husband, Bird.
The District court sustained the conten-
tlOn of the plaintiff, Thomas Fisher, and
those allied with him in interest and ad-
judged the plaintiff In error to have no
lien by reason Of this mortgage.
The objection TO the consideration Of the
case 10 that none OF the children or grand
children OF Angeline Furnish are made
defendants in error and that they are nec-
essary parties to enable this court to de-
ternine the questions raised by the pc
tltion IN error. The further objection is
AhuN ANrNcEp MYERS nOT htfU are
made parties TO this proceedings.
Counsel for plaintiff in error say In their
brief, "The Savings Bank, as piaintlff In
error, having failed to make other de-
fendant In err0r than ThOIhas Fisher, is
only entitled to reversal of the Judgment
as to him, and Of course upon new trial
the only issue can be as to whether the
mortgage Is lien upon the one-half
claimed by him." This position Is unten-
able, and the objection to the consldera-
tion OF the case must be sustained
II this court should adjudge that the
Butler deed conveyed any estate in fee
TO Angellne and that she and her hus-
band Chauncey Bird could mortgage this
property as Of a fee simple title; or, II we
should adjudge that because the money
loaned upon this mortgage was used for
the purpose of enabling Angellne Furnish
TO preserve the property against tax sales
or to enable her to improve the property
and that by reason thereof the plaintlff In
error had a lien, Notwithstanding the ter
mination OF the life estate OF Angeline
Furnish, II would not be possible for the !
District court or for the plaintiff In error
to limit this lien to the interest Of Thomas