Russell v. Russell et al.

ment will not be reversed, if on the examination of the whole case substantial right and justice have been observed and done.

From the Grant Circuit Court.

J. Brownlee and H. Brownlee, for appellant.
A. Steele and R. T. St. John, for appellees.

PETTIT, J.—This was a suit for the partition of real estate. The appellant was the second wife and widow of John Russell, and had no child by him, and she was the plaintiff or petitioner below; and the appellees were the defendants below, and were the children of John Russell by a former wife. There was a partition of the real estate, setting off to the appellant one-third of the same in value for her life. Questions are sought to be raised and presented to this court as to the proceedings, but it is not pretended that one-third of the real estate in value was not set off to the appellant for life; and the only question really presented to us (for all others resolve themselves into this) is, was the appellant, being the second wife and widow of John Russell, without a child by him, entitled to a life estate or a fee simple in his real estate? In the well and thoroughly considered case of Longlois v. Longlois, ante, p. 60, we held that the widow in such a case was only entitled to a life estate in the realty, and we adhere to that ruling. If that ruling is right, no wrong was done to the appellant, as she has got set off to her onethird of the real estate for her life.

The judgment is affirmed, at the costs of the appellant.

ON PETITION FOR A REHEARING.

PETTIT, J.-A petition for a rehearing has been filed, in which it is insisted that the judgment ought to have been reversed instead of affirmed. It seems to have been the determined purpose of the appellant to have the lands sold, supposing and claiming that, in such event, she would be entitled to one-third of the money absolutely. In this she was and is mistaken. She had but a life estate in the lands, and

Russell v. Russell et al.

if the principal was sold, she could not have the value of the principal, but only so much as her life interest was worth. The first set of commissioners appointed made and reported a partition of the lands, which was set aside at the instance of, and on exceptions of, the plaintiff below, appellant here.

The second set of commissioners reported and made partition. The appellant excepted, alleging that the lands were not susceptible of partition, and that one-third had not been. set off to her. These propositions were denied by the appellees; and a jury was empanelled to try these issues, without any objection, but apparently with the consent of the parties and the court, who, after hearing the evidence, found that the lands were divisible, but that one-third thereof had not been set off to the plaintiff. The court on this finding very properly set aside this report, because one-third of the lands in value had not been set off to the widow.

The appellees, all being adults, filed a written consent that one-third of the lands in value might be set off to the plaintiff without any regard to any injury to their remaining twothirds.

The third set of commissioners appointed reported that the lands were not divisible without injury to the owners. The appellant moved the court to confirm this report, but the appellees filed exceptions to and moved to set it aside. The appellant's motion was overruled, and the appellees' motion sustained, the jury having found the lands divisible as demanded in the petition for partition.

The fourth set of commissioners made partition, giving the appellant one-third of the lands for life.

The appellant's counsel then filed a paper that is called, in the transcript and in his brief and petition for a rehearing, a cross complaint." How the appellant in this case could file a cross complaint," we can not imagine. She might have filed an amended or supplementary complaint in a proper case, if done in time, but in this case she could not file a 66 cross complaint."

The paper filed as a "cross complaint," in substance, states

Cochran et al. v. Nebeker et al.

that at the time the application was filed for partition, asking that one-third of the lands should be set off to her for life, she did not know that she was entitled to one-third thereof in fee simple, but that she has discovered that she is so entitled; and that the defendants threaten to disturb her possession, enjoyment, and improvement of the lands, which places a cloud on her title, and makes it less valuable in market. This paper, called a "cross complaint," ought to have been rejected or stricken out on motion, but as it was disposed of on a demurrer for want of sufficient facts, no error was committed. It showed no right on the part of the plaintiff for any action of the court in her favor. The last report of the commissioners was confirmed on exceptions to it by the appellant and answers to them by the appellees. The last report, its confirmation, and judgment gave the appellant one-third of the real estate in value for life. This was what she was entitled to, and no more.

For technical errors, if any such existed, we can not reverse the judgment below, if substantial right and justice have been observed and done, on the examination of the whole case. 2 G. & H. 122, sec. 101; 2 G. & H. 278, sec. 580.

The petition for a rehearing is overruled, at the costs of the petitioner.

COCHRAN ET AL. v. NEBEKER ET AL.

PROMISSORY NOTE.-Material Alteration.-Suit on a promissory note, payable in a bank in this State six months after date, or before if made out of the sales of certain machines named, and having a condition annexed thereto that the same was not to be paid if sales of said machines were not made equal to the amount of the note within the time limited for the payment thereof.

Held, that if, after signing and delivery, without the knowledge or consent

Cochran et al. v. Nebeker et al.

of the maker, the condition was taken from the note, this was a material alteration.

SAME.-Liability of Maker.-The fact that such promissory note was payable at a bank in this State did not make the maker liable upon it, as thus altered, in an action thereon by an indorsee. SAME.-Presumption as to Who Made Alteration.-Pleading.-When an instrument is altered after its execution, it will be presumed, until the contrary is shown, that the alteration was made by the party claiming under it, or by one under whom he claims; and it is not necessary, in an answer setting up that an instrument sued on has been altered, to allege that it was altered by the party claiming under it, or by one under whom he claims. SAME.-Burden of Proof.-When the signing and delivery of an instrument sued on are admitted, but it is claimed in answer that it has been altered in a material part, the burden is on the defendant to prove its material alteration.

SAME.-Alteration by Stranger.-Where the alteration is shown to have been made by a stranger to the instrument, and is therefore a mere spoliation, the rights of the parties under the instrument as it was before the alteration will not be affected thereby.

SAME.-Questions of Law and Fact.-Whether an alteration is material or not is a question of law for the court. Whether the alteration was made or not, whether by consent or not, and whether fraudulently or not, are questions of fact.

From the Fountain Circuit Court.

C. M. Ristine and G. Me Williams, for appellants.
L. Nebeker and S. M. Cambern, for appellees.

DOWNEY, J.-Suit by the appellees, as indorsees, against the appellants, as the maker and the payee and indorser of a promissory note payable in a bank in this State. The note was payable six months after date, or before if made out of the sales of Drake's Horse Hay Fork and Hay Carrier.

The defendant Cochran, the maker, answered in three paragraphs:

1. A general denial.

2. That when the note was executed it had a condition annexed thereto, that the same was not to be paid if sales of said machines were not made equal to the amount of the note within the time limited for the payment thereof; that the writing sued on in this case is not the instrument he signed and delivered, for that the same has been altered, in this, that

Cochran et al. v. Nebeker et al.

the condition heretofore recited has been taken off, and that the same was done after the signing and delivery thereof, by some one to the defendant unknown, and without the knowledge or consent of the defendant.

The third paragraph of the answer is not materially different from the second. Both the second and third paragraphs were verified by the oath of Cochran.

On demurrer for want of sufficient facts, the court adjudged both the second and third paragraphs of the answer bad. Drake was defaulted, Cochran withdrew his general denial, and there was judgment for the plaintiffs.

It is assigned as error that the court improperly sustained the demurrers to the second and third paragraphs of the answer.

As we understand the allegations of the paragraphs in question, the condition that the note was not to be paid unless sales should be made to the amount of the note, within the time that the note had to run, was legally a part of the note at the time of its execution, and that after the execution of the note, and without the consent of the defendant, this part of the note was detached, thus changing the note from one payable on a condition to one payable unconditionally. We think this was a material alteration of the note. Had the note remained as it is alleged to have been at the time of its exccution, it would not have been a negotiable note, on account of its being payable only upon the happening of the condition, and the plaintiff, to recover on it, must have alleged and shown that sales had been made by the defendant to the amount of the note, as contemplated by the condition. If we should hold that the alteration was not thus material, the defendant would be compelled to set up as a defence, that he had not sold machines to an amount equal to the amount of the note, thus throwing upon him the burden of pleading and proving as a defence the fact that the sales had not been made, when the plaintiff should take upon himself the burden of alleging and proving that such sales had been made.

The fact that the note was payable at a bank, and therefore negotiable as an inland bill of exchange, cannot make the