Wallace v. Furber. moves the court to reject all pleadings herein of the defendant Thomas A. Goodwin, the same having been filed by Morrow & Trusler and J. A. Henry as attorneys for said Goodwin, for the reason that in his complaint the plaintiff made said Goodwin a defendant herein, and said Morrow & Trusler and J. A. Henry, from the commencement of this suit, have been and still are the plaintiff's attorneys. Said Wallace further moves the court to reinstate the default taken against said defendant Goodwin, on said Wallace's cross-complaint herein, which default was set aside by the court April 7th, 1874, upon a motion submitted by the plaintiff's said attorneys without notice to Wallace, and which motion was not in writing, and was. not supported by affidavit." Which motions the court overruled, to which action of the court said Wallace excepted. The following is the entry of the setting aside of the default mentioned in the above motion: "Comes now Wallace by counsel, and the default here-tofore taken against Thomas A. Goodwin on cross-complaint of Wallace is set aside, and thereupon said Goodwin files a demurrer thereto." He filed afterward other pleadings looking to issues on the cross-complaint of Wallace, which cross-complaint the court ordered docketed as a separate action. The court overruled the motion of Wallace above copied. · If Wallace was present in court when the motion was made and acted upon, it rendered formal notice, etc., to him unnecessary. The record shows that the default was set aside, as it well might have been on his motion. That part of the motion which sought to set aside the pleadings of Goodwin to the counter-claim of Wallace, because filed by the attorneys of the plaintiff in the original suit, was not necessarily erroneously overruled. The simple fact that Morrow, Trusler and Henry were attor Price et al. v. Jennings. neys against Goodwin in the suit of Furber to foreclose a mortgage, did not necessarily render them incompetent to act as attorneys for Goodwin in a suit by Wallace against him. If the claims in the two proceedings were of separate and distinct natures, so that the employments of Morrow, Trusler and Henry did not place them upon opposite sides of the same or cognate questions, they might be so employed. Such was the fact. The question between Furber and Goodwin had no relation to the question between Wallace and Goodwin. Goodwin made default upon the claim of Furber. He denied the claim of Wallace, which was in no way connected with that of Furber. Some other points are made, but they are immaterial. We discover no error in the record. The judgment is affirmed, with costs. PRICE ET AL. v. JENNINGS. MECHANIC'S LIEN.-Material Man.-Action Against Subsequent Purchaser.Pleading. In an action by a material man, against A. and his wife and B. and her husband, to enforce a lien, the complaint alleged, that, at a dato specified, the plaintiff had furnished to A. certain material to be, and which was, used in the erection of a building or a certain lot belonging to A.; that, within sixty days thereafter, the plaintiff had caused a proper notice of his intention to hold a lien on said premises for the value of said materials to be duly recorded; and that A. and his wife had thereafter conveyed said premises to B. Held, on demurrer, that the complaint is sufficient. SAME.-Answer by Purchaser, that the Builder was an Infant.-Disaffirm ance.-B. answered in such action, alleging, that, without notice of the plaintiff's claim, she had purchased, and received a conveyance for, said premises, from A., and had caused such conveyance to be duly recorded; and that A., at the date such materials had been furnished, was an infant, and had since, in the action at bar, disaffirmed the contract of purchase of such material, by pleading his infancy. Price et al. v. Jennings. Lield, on demurrer. that B. had the right to avail herself of the infancy of A. as a defence, and that the answer is sufficient. SAME.-Infant Holding Himself Out as of Age.-Necessaries.- Conveyance.-The plaintiff in such action replied to such answer, alleging, that, at the time said materials were furnished, A. had held himself out as of full age; that the plaintiff had no information to the contrary; that the conveyance by A. to B. was made without consideration; and that the materials furnished were necessaries. Held, on demurrer, that such materials were not necessaries, that the fact that A. had held himself out as being of full age was immaterial, and that the reply is insufficient. SAME.-Evidence.-Declarations and Admissions of Infant as to his Age.Title to Real Estate. The admissions or declarations of A., that he was of full age, though made while the title to such land was in him, are not admissions affecting such title, and are incompetent evidence against B., in such action. From the Henry Circuit Court. J. Brown, J. M. Brown and R. L. Polk, for appellants. M. E. Forkner, for appellee. PERKINS, J.-Complaint against Benjamin G. Price and Price, his wife, Charles T. Price and Lydia M. Price, his wife, alleging, that, on the 1st day of September, 1875, said Benjamin G. Price was the owner in fee of certain real estate (particularly describing it); that, between the said 1st day of September and the 21st day thereof, said Benjamin was engaged in building a dwellinghouse on said real estate, and that the plaintiff sold and delivered to said Benjamin, between the two dates aforesaid, building materials to be used in said house, of the value of four hundred and eighty-nine and 21-100 dollars. The plaintiff further alleges, that, on the 6th day of October, 1875, he filed a notice of intention to hold a lien on said property for the price of said materials, and he makes a copy of said notice an exhibit in said complaint, and avers that the notice was duly recorded, on said 6th day of .October, in the record of mechanics' liens, etc. The plaintiff further alleges, that, since the recording of said notice of Price et al. v. Jennings. lien, the said Benjamin and wife have sold said real estate to Lydia M. Price, one of the above defendants, and that she claims to be the owner, etc., and that her husband is the above named defendant, Charles T. Price. The plaintiff prays a foreclosure of the mechanic's lien, etc. A demurrer to the complaint was overruled, and exception entered. Answer by all the defendants, the general denial. Separate answer of infancy by Benjamin G. Price, to which a demurrer was overruled. Lydia M. Price answered separately, that, on the 4th day of October, 1875, she purchased said real estate of Benjamin G. Price, for a valuable consideration, without notice of any lien, receiving a conveyance, which she caused to be duly recorded; that said Benjamin was an infant when he purchased said materials for said house; that they were not necessaries; and that he had disaffirmed said contract of purchase by pleading his infancy in this action. A demurrer to this paragraph of answer was overruled, and exception entered. A reply in two paragraphs was filed: 1. General denial; 2. That, at the time said Benjamin purchased the materials, he held himself out as being of age, etc., and that plaintiff had no information that he was not; that the materials were necessary for and were actually used in the house; that said Lydia received the conveyance of the real estate without consideration, etc. A demurrer was overruled to this second paragraph of reply, and exception noted. A trial by jury followed, resulting in a verdict for the plaintiff for the amount of his claim, and a decree that the mechanic's lien be foreclosed against the property; but no personal judgment against any defendant was rendered. A motion for a new trial was overruled, and exception VOL. LXII.-8 Price et al. v. Jennings. reserved. The evidence is in the record. Errors are properly assigned in this court. The complaint in this case was sufficient. It averred that the materials were furnished for the particular building. Crawford v. Crockett, 55 Ind. 220. The court erred in overruling the demurrer to the second paragraph of reply. That reply was based upon two erroneous theories: 1. That an infant may be legally liable on his contracts, if he simply holds himself out as of age when making them; 2. That material for building a house is a necessary, within the meaning of the law making infants liable for necessaries. Neither of the above mentioned theories is correct. As to the first, Carpenter v. Carpenter, 45 Ind. 142, is in point. As to the second, see Price v. Sanders, 60 Ind. 310. It has been held to be the general rule of law, that none but the maker of a voidable contract and his personal representatives and privies in blood could avoid it, but this has been doubted in this State in cases of usury. Cole v. Bansemer, 26 Ind. 94. And privies in estate may do so with the maker's consent, and may avail themselves of his avoidance when it has taken place. Borum v. Fouts, 15 Ind. 50. It is assigned for error that the court erred in overruling. the motion for a new trial. A ground on which the motion was made was, that the verdict was not sustained by the evidence. The jury found that Benjamin G. Price was over twenty-one years of age. The evidence on this point was as follows: Benjamin G. Price, Elizabeth Rhodes, Eliza Hunt, Eliza Senex and Lydia M. Price, the mother of Benjamin G., testified, that said Benjamin G. was born in the Summer of |