Sumner et al. v. Darnell.

extended, but we will only refer to the following: Raley v. County of Umatilla, supra; City of Portland v. Terwilliger, 16 Ore. 465; Coffin v. City of Portland, 16 Ore. 77; First M. E. Church v. Old Columbia, etc., Co., 103 Pa. St. 608; Paschall v. Passmore, 15 Pa. St. 307; Rawson v. Inhabitants, etc., 7 Allen, 125; Packard v. Ames, 16 Gray, 327; Crane v. Inhabitants, etc., 135 Mass. 147; Sohier v. Trinity Church, 109 Mass. 1; Board, etc., v. Patterson, 56 Ill. 111; Lawe v. Hyde, 39 Wis. 345; Wier v. Simmons, 55 Wis. 637; Brown v. Caldwell, 23 W. Va. 187; Southard v. Central R. R. Co., 2 Dutch. 13; Barrie v. Smith, 47 Mich. 130; Gage v. School District, 64 N. H. 232; Page v. Palmer, 48 N. H. 385; Morrill v. Wabash, etc., R. W. Co., 96 Mo. 174; Thornton v. Trammell, 39 Ga. 202.

It is questionable whether the appellants would be entitled to a recovery if the deed contained a condition subsequent.

It appears from the finding that the county-seat remained at Centreville from 1817 to 1873, a period of fifty-six years, and that this suit was brought more than seventy years after the location of the seat of justice at Centreville. It may fairly be presumed that the grantor, at the time he executed the deed to the commissioners, owned other property, the value of which he expected would be enhanced by the location of the county-seat, or that he had other interests to be subserved thereby. If so, we may also infer that he received, during his lifetime and while a resident of Wayne county, the substantial benefit of his donation.

In Hunt v. Beeson, 18 Ind. 380, it was held that the maintenance of a tan-yard for the period of twenty-four years was a substantial compliance with the condition contained in the conveyance.

In Mead v. Ballard, 7 Wal. 290, a conveyance upon a condition that an institute "shall be permanently located upon said lands," was complied with by the location of the insti

Montgomery v. Craig et al.

tution thereon August 9th, 1848, and its remaining there until 1857.

In Jeffersonville, etc., R. R. Co. v. Barbour, 89 Ind. 375, the use, for thirty-three years, of lands granted "expressly for the use and purpose of depot grounds," and providing that if not used for that purpose it should revert to the grantors, was held to be a performance of the conditions, so as to prevent a forfeiture.

We find no error in the record.
Judgment affirmed.

Filed April 3, 1891.

No. 14,917.

MONTGOMERY v. CRAIG ET AL.

TRUSTS.—Husband and Wife.—Conveyance Taken in Wife's Name.-No Implied Trust Resulting From Payment of Purchase-Money.-Where a conveyance of real estate is taken in the name of the wife, and the purchase-money is paid by the husband, no resulting or implied trust arises in favor of the latter.

SAME.-Parol Agreement Ineffectual to Create Express Trust.—A parol agreement between the husband and the wife in such a case that the wife shall hold the land as his trustee, is ineffectual to create an express

trust.

From the Jackson Circuit Court.

O. H. Montgomery, for appellant.

B. H. Burrell and H. Shirley, for appellees.

ELLIOTT, J.—It is alleged in the complaint that the appellant, the plaintiff below, purchased the land in dispute in January, 1881; that by an agreement made with his wife, Lucy Montgomery, he caused the conveyance to be made to her; that the land was taken in trust by Lucy Montgomery; that the purchase-money was all paid by the plaintiff; that

Montgomery v. Craig et al.

Lucy Montgomery died in 1887, and that the appellees are her heirs at law.

As the relation of husband and wife existed at the time the deed was executed, there can be no resulting, or implied, trust. Lochenour v. Lochenour, 61 Ind. 595.

If it were possible for the plaintiff to succeed in any event, it could only be for the reason that his wife agreed to hold the land as his trustee. Whether she had capacity to make a contract binding her to hold the land as her husband's trustee is a question we deem it unnecessary to decide, inasmuch as our judgment is that a parol agreement between husband and wife, in such a case as this, is ineffective. As no resulting trust can arise, the appellant can not possibly succeed, except upon the theory that an express trust was created in his favor by the parol agreement; but, as the law forbids the creation of an express trust by parol in cases of this character, the only theory upon which it can even be plausibly argued that he can succeed is wholly untenable. Moore v. Cottingham, 90 Ind. 239; Mescall v. Tully, 91 Ind. 96; Columbus, etc., R. W. Co. v. Braden, 110 Ind. 558; Thomas v. Merry, 113 Ind. 83; Anderson v. Crist, 113 Ind. 65.

This case is not a member of the class represented by the case of Catalani v. Catalani, 124 Ind. 54, but belongs to an entirely different class. Here, no trust can possibly arise by implication, for no fraud is shown, and the relation of the parties forbids that a trust be implied.

The case made by the complaint is one wherein the plaintiff assumes to overthrow a perfect deed by a bald parol agreement, and this the law will not permit. Judgment affirmed.

Filed April 10, 1891.

VOL. 128.-4

Chaplin et al. v. Sullivan.

No. 14,778.

CHAPLIN ET AL. v. SULLIVAN.

PRACTICE.-Refusal to Strike Out Pleading.--A refusal to strike out a pleading is not an available error.

SAME.-Error in Assessment of Damages.—New Trial.—Error in the amount of the assessment of damages can only be presented by a motion for a new trial.

VENIRE DE Novo.-Insufficient Finding.-Error in making insufficient or indefinite findings can only be presented by a motion for a venire de

novo.

SET OFF.-A Set-off to a Set-off.—A set-off can be pleaded to a set-off. MORTGAGE.-Mortgage to Secure Two Notes Payable to Different Persons.-Priority. A mortgage given to secure two notes identical in date, amount, and time of maturity, but payable to different persons, is equivalent to a separate mortgage to each, without giving priority to either mortgagee. SUBROGATION.-Purchaser of Decedent's Realty Paying Debt of the Estate.Priority to Mortgage Executed by Heir.-A purchaser of real estate of a decedent's estate, who pays off a general debt of such decedent at the request of an heir in order to prevent the real estate being sold to pay such debt, is entitled to be subrogated to the lien the creditor had on such realty by virtue of his claim as against such heir; and such lien is prior to a mortgage executed by an heir of such decedent prior to such payment.

DECEDENTS' ESTATES.-Extent of Creditor's Lien on Realty.--A creditor of an estate has a lien for his claim on the entire realty of the estate, and can not be confined to a particular part of it.

From the Madison Circuit Court.

H. D. Thompson, for appellants.

W. A. Kittinger and L. M. Schwinn, for appellee.

MCBRIDE, J.-John Chaplin died intestate, in Madison county, owning certain lands in that county. He left surviving him, as his sole heirs, a widow, six living children, and the heirs of a deceased daughter. Appellant Solomon C. Chaplin is one of the children, and was appointed administrator of the estate.

Appellant Caroline Gillett and the appellee, Emma Sullivan, are daughters of said decedent. Solomon C. executed to them a mortgage on his undivided interest in said land,

Chaplin et al. v. Sullivan.

to secure to each the sum of $350, loaned him by each, both being secured by the same mortgage.

The widow had partition of the land, and one-third was set off to her in severalty.

The administrator then applied for, and procured, from the Madison Circuit Court, an order to sell the remaining two-thirds of said land to pay debts of said estate, showing in his application a deficiency of personal assets amounting to $1,000.

To avoid the necessity for and expense of an administrator's sale of the land, the appellee bought the shares of all of said heirs, except appellant Solomon C., and agreed with each of them, as a part of the consideration, to pay their proportionate share of said debts.

Appellant did not sell her his interest in the land, but requested her to pay his share of the debts, and promised to reimburse her for so doing. She paid all the remaining debts of the estate, amounting to $1,214.25. This would

make the share of each $173.46.

There was some conflict in the evidence as to just what the contract was, relative to her reimbursement for the sum paid by her for appellant on said debts, but as it appears from the special finding that the court accepted her version, under our rule we can not disturb the finding.

This suit was brought by appellee to foreclose the mortgage, and to recover, against Solomon, a judgment for said sum paid by her for him on said indebtedness.

With reference to the latter claim she also asks to be subrogated to the rights of the creditors of decedent, and to have said sum declared a lien on said land, senior, to said mortgage.

Two questions are raised on the pleadings. Solomon answered by general denial, and by set-off. Appellee replied a set-off to his set-off. A motion by Solomon to strike out the reply of set-off was overruled, and this ruling appellant insists is erroneous.