cial order was entered and signed upon the record authorizing the trustee to borrow any money, we must hold that the verdict of the jury was not sustained by sufficient evidence, and was contrary to law. It follows that the court below erred in overruling appellant's motion for a new trial.

The judgment is therefore reversed, with instructions to the trial court to sustain appellant's motion for a new trial, and for further proceedings in accordance with this opinion.

(49 Ind. A. 627)

PRICE et al. v. SWARTZ. (No. 7,551.) (Appellate Court of Indiana, Division No. 2. March 12, 1912.)

1. COURTS (§ 85*)-RULES-EFFECT-SUPREME COURT.

A Supreme Court rule, which has been adopted and published, has the force and effect of law, and is binding upon the court as well as upon the parties.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 294, 296-301; Dec. Dig. § 85.*1 2. APPEAL AND ERROR (§ 756*)-BRIEF-SUF

FICIENCY.

Where the appellant's brief did not disclose the issues, judgment, or errors relied on, or contain any recitals of the evidence in narrative form or set out the motion for new trial even in substance, it failed to comply with Supreme Court rule 22 (55 N. E. v), providing that the brief shall contain a clear and concise statement of errors relied on and so much of the record as is necessary to show such errors, and it was insufficient to present any question for review.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. & 3091; Dec. Dig. § 756.*] Appeal from Circuit Court, Lake County;

Willis C. McMahan, Judge.

Action by Milbert F. Price and another against Harry D. Swartz. From a judgment for defendant, plaintiffs appeal. Affirmed.

C. N. Morton, for appellants. Herbert S. Barr and Harold H. Wheeler, for appellee.

ADAMS, J. Rule 22 of the Supreme and this court (55 N. E. v) provides that "the brief of appellant shall contain a short and clear statement, disclosing (1) the nature of the action; (2) what the issues were; (3) how the issues were decided and what the judgment or decree was; (4) errors relied upon for reversal; (5) a concise statement of so much of the record as fully presents every error and exception relied on, referring to

examination of the brief, without looking at the record, and, to the extent that the rules are complied with, the errors assigned will be determined, and others will be considered waived. Chicago, etc., R. Co. v. Wysor Land Co., 163 Ind. 288, 294, 69 N. E. 546, and cases cited.

The appellant's brief in this case does not disclose how the issues were decided or what the judgment was. The errors relied upon for reversal are not set out, nor is any reference made in the brief to the assignment of errors. There is no recital of the evidence in narrative form, but 40 pages of appellant's brief are devoted to extracts from the evidence in the form of questions and answers. At the close of the argument, appellants ask that the judgment be reversed, and a new trial granted on account of the error of the court in overruling their motion for a new trial. Neither the motion for a new trial, nor the substance thereof, is set out in the brief. We have, however, examined the motion, as the same appears in the record, and find that the insufficiency of the evidence to sustain the verdict is not assigned as a cause for a new trial.

Appellee having directed our attention to the failure of appellant to comply with the rules, and appellants having failed to ask leave to amend their brief, it is not within our power to ignore or arbitrarily refuse to consider the question thus presented. Albaugh Bros. v. Lynas, 93 N. E. 678.

[1] When a rule of court is adopted and published, it has the force and effect of law, and is binding upon the court as well as upon the parties. Such rule is a law of practice, extending to all litigants coming within its purview, and who have a right to assume that it will be uniformly enforced in conservation of their rights, as well as in securing

the prompt and orderly dispatch of business. Magnuson v. Billings, 152 Ind. 177, 180, 52 N. E. 803.

[2] The appellants having failed to comply with the rules of this court in the preparation of their brief, no question is presented for our consideration. King v. State ex rel., 93 N. E. 1082.

The judgment is affirmed.

(49 Ind. A. 654) NEWHAUS et al. v. BRENNAN et al. (No. 7,535.)

(Appellate Court of Indiana, Division No. 1.

March 15, 1912.)

1. DEEDS (§ 128*)-RULE IN SHELLEY'S CASE. The rule in Shelley's Case is recognized in Indiana as a rule of property, and not one of construction.

the pages and line of the transcript. If the sufficiency of the evidence to sustain the verdict or finding in fact or law is assigned, the statement shall contain a condensed recital of the evidence in narrative form, so as to present the substance clearly and concisely. ** It has often been held that appellant's brief must be so prepared that all questions presented by the assignThe words "heirs" or "heirs of the body," ment of errors can be determined from an 'in their primary and strict legal meaning, are

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 413-415; Dec. Dig. § 128.*] 2. DEEDS (§ 128*)-"HEIRS"-"HEIRS OF THE BODY."

to convey another and different meaning clearly indicated by the instrument.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 413-415; Dec. Dig. § 128.*

For other definitions. see Words and Phrases, vol. 4, pp. 3241-3271; vol. 8, pp. 76777678.]

3. DEEDS (§ 128*)-RULE IN SHELLEY'S CASE -APPLICATION.

words of limitation, and not of purchase, and that the title so conveyed is clear, free and must be so construed, unless the language em- unencumbered; that she is lawfully seized of ployed clearly indicates that they are intended the premises aforesaid, as of a sure and indefeasible estate of inheritance in fee simple and that she will warrant and defend the same against all claims whatsoever." Said deed was duly acknowledged and recorded, and Julia T. Brennan and her husband and coappellee, Bernard T. Brennan, immediately took possession of said real estate, have since remained in exclusive possession thereof, and have made valuable improvements thereThe grantor died about 1893. On April 15, 1908, Henry Newhaus, who claimed title under the above deed, executed a mortgage on the real estate thereby conveyed, with covenants of warranty, to appellant Kajetan J. Bauer, to indemnify said Bauer, as surety, on a certain note to appellant German-American National Bank. Appellees thereupon brought this action to quiet title to the real estate, to have the deed construed, and to cancel the mortgage.

A deed conveying land to the grantee for her natural life and providing that, in the event of her death, the property should go to her brother, and containing a warranty of the land to her and to her heirs and assigns forever, passed a fee-simple title under the rule in Shelley's Case.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 413-415; Dec. Dig. § 128.*]

Appeal from Superior Court, Allen County; F. S. Roby, Special Judge.

Action by Julia T. Brennan and others against Henry Newhaus and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

H. C. Hanna, J. F. Rodabaugh, and Barrett & Morris, for appellants. C. A. Hays and E. V. Harris, for appellees.

on.

The court also found that the actual consideration of the deed in question on the part of Julia T. Brennan was the services rendered by her to said Franciska A. Wagner; that the part of the deed not set out in italics was a printed form, and the parts italicized were written in by the scrivener; that the deed was made out as the grantor intended it should be and the scrivener did not make any mistake in writing it. Upon these facts the court concluded the law to be (1) that appellee Julia T. Brennan is the owner in fee simple of the real estate described in the above deed; (2) that her title thereto should be quieted as against all appellants.

Appellants admit the correctness of the facts as found, but separately challenge each of the conclusions of law. No good purpose can be subserved in this case by a detailed consideration of the numerous propositions advanced by the respective parties to overthrow or sustain the judgment of the lower court. They all lead to the single question: Does the language of the deed bring the case within the rule in Shelley's Case? The trial court answered this question in the affirmative.

FELT, C. J. This is a suit to quiet title to certain real estate, and involves the construction of a deed purporting to convey said real estate. The facts of the case were found specially by the trial court in substance as follows: Appellant Henry Newhaus and appellee Julia T. Brennan are brother and sister, and Franciska A. Wagner, grantor in the deed involved, was their aunt. From the time she was 13 years of age until she was 20 years old said appellee Julia T. Brennan worked in the household of her said aunt, who on September 6, 1889, duly executed and delivered to her the following instrument: "This indenture witnesseth: That Franciska A. Wagner, widow and sole legatee of Henry C. Wagner, deceased, of Allen county, in the state of Indiana, in consideration of fifteen hundred dollars and love and affection to her paid by Julia T. Brennan, the receipt whereof is hereby acknowledged, do grant, bargain, sell and convey to the said Julia T. Brennan for and during her natural life, her heirs and assigns Appellant contends that the language emforever, the following real estate in Allen ployed in the deed does not bring the case county, in the state of Indiana, as follows, to within the rule, and relies mainly upon the wit: [Description omitted.] The above de- following decisions to sustain that contention: scribed property is to remain in possession Earnhart v. Earnhart, 127 Ind. 397, 26 N. E. of the said Julia T. Brennan during her nat- 895, 22 Am. St. Rep. 652; Mcllhinny v. McIlural life and in the event of her death the hinny, 137 Ind. 411, 37 N. E. 147, 24 L. R. A. property is to go to her brother, Henry New- 489, 45 Am. St. Rep. 186; Adams v. Merrill, 45 haus. Together with all the privileges and Ind. App. 315, 85 N. E. 114, 87 N. E. 36; appurtenances to the same belonging; to Adams v. Alexander, 159 Ind. 175, 64 N. E. have and to hold the same to the said Julia 597. In each of the foregoing and many T. Brennan, her heirs and assigns forever, other cases cited by appellant it was either the grantor, her heirs and assigns covenant- held that the rule in Shelley's Case did not ing with the grantee, her heirs and assigns, apply, or that the language employed clearly *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

expressed the intention of the grantor, and | granting clause and the habendum are clear

Appeal from Circuit Court, Marion Coun- bailee, such bailee, on account of the relaty; Charles Remster, Judge.

[2, 3] Appellee insists that an allegation as to the ownership of the property by the plaintiff at the time of the alleged conversion is unnecessary to the sufficiency of the complaint in this case, for the reason that it appears from the averments of the comFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

interest therein as could support an action | hold goods described at the time they were for its value.

stored with the defendant; but it does not follow as a necessary inference from this averment that he was such owner at the time they were alleged to have been con

may have sold the property, or may have been otherwise divested of his title, between the time the goods were stored and the time of the conversion, in which event he would not be entitled to recover.

The averments of the complaint in this case, showing the relation of bailor and bailee between the plaintiff and the defendant, simply show that such a relation ex-verted several months later. The plaintiff isted between them as would estop the defendant from denying the title or interest of the plaintiff in the property bailed at the time of the bailment, or from setting up any title or adverse interest held, either by himself or another; but it does not take the place of an averment that the plaintiff had, in fact, such a title or interest therein as entitles him to compensation for its loss. Bertram v. Cook, 44 Mich. 396, 6 N. W. 868. In the case last cited, Cook brought a suit in ejectment to recover from Bertram the possession of a quarter section of land. From the evidence it appeared that Bertram held a tax deed for the land, and that he was in possession thereof and had made valuable improvements thereon. He had these improvements appraised by the jury, with a view to recovery therefor if he lost, and Cook had the value of the land, exclusive of the improvements, appraised by the jury for a like purpose. Cook introduced evidence showing that while he was in peaceable possession of said real estate by James M. Spear, his tenant, Bertram collusively obtained possession from his tenant, which possession he retained until suit was brought. Cook thereupon insisted that Bertram was estopped from disputing his title, as Spear was, who had wrongfully let him in, and the trial court so held. In passing upon the question, the Supreme Court said: "For the purpose of recovery of possession, this ruling was correct. It appears, however, that (Appellate Court of Indiana, Division No. 1.

the circuit judge treated the estoppel as equivalent to an admission of title in fee, and he directed a verdict accordingly. This was plainly erroneous." The jury found that the value of the land, without the improvements, was $4,508, and thereupon Cook elected to abandon the land to the defendant, and the court ordered judgment in his favor for the value so fixed. Upon this question, the court said: "Now, when it is borne in mind that Cook had established no title, but had only by his parol evidence estopped Bertram from disputing his present right to possession, it is manifest that there was no basis for such a judgment."

The case of McCreery v. Nordyke, supra, is relied on by appellee as holding that a complaint for conversion which shows the relation of bailor and bailee is sufficient without a direct averment of ownership or right of possession in the plaintiff. In that case, the complaint was questioned for the first time by assignment of error in this court, and it was held sufficient under the liberal rule applied to uphold pleadings when first attacked on appeal. The question in this case is presented by demurrer to the complaint, and for that reason the case relied on cannot be treated as authority. We think that this complaint is wanting in a material averment, and it cannot be held to state a cause of action. The rule announced in the case last cited should not, in our opinion, be further extended. The demurrer to the complaint should have been sustained. Judgment reversed, with directions to sustain the demurrer to the complaint.

1.

(49 Ind. A. 629) MIAMI COAL CO. v. GARDNER. (No. 7,499.)

March 13, 1912.)

MASTER AND SERVANT (§ 260*) — ACTION
FOR INJURIES-COMPLAINT NEGATIVING AS-
SUMPTION OF RISK.

The complaint, in a servant's action for personal injuries, averred that defendant, before plaintiff was injured, knew, or might have known, of the dangerous position of a water pipe with reference to a track, and that the wheels of cars run upon the track were likely to strike such pipe, and thereby derail the dangerous condition of the pipe; that plaintiff cars; that defendant gave no notice of the was employed as a coal miner, and on the day of his injury was requested by defendant's bank boss to drive a mule and haul coal along the track without notice that the pipe was near the rail, or that it was dangerous. Held, that the complaint sufficiently negatived plaintiff's assumption of risk.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 844-848; Dec. Dig. § 260.*] 2. MASTER AND SERVANT (§ 258*) - ACTION FOR INJURIES-COMPLAINT KNOWLEDGE OF DEFECT GENERAL TERMS.

[4] A material fact will not be inferred in aid of a pleading, unless such fact is a necessary inference from the other facts pleaded, and the only inference that can be drawn therefrom. Bemis Indianapolis, etc., Co. v. Krentler, 167 Ind. 653, 79 N. E. 974; Pittsburgh, etc., R. Co. v. Peck, 165 Ind. 537, 76 A complaint, in a servant's action for inN. E. 163; Indianapolis, etc., R. Co. v. Ray, juries, which avers that the defendant negligently loaded with coal a defective car and 167 Ind. 236, 78 N. E. 978. It is averred "negligently" furnished it to plaintiff to be that plaintiff was the owner of the house-hauled on its track, sufficiently avers defend