denied by the verdict of the jury, we must now treat the application in this case as made at the request of appellant and clearly within the prohibition of the statute. [2] It is further contended, however: (1) That section 5308, Burns 1914, cannot affect the contract between the relief department and appellee, for the reason that said to recover the same. Olvey v. Jackson, 106 Ind. 286, 4 N. E. 149; Bertha v. Sparks, 19 Ind. App. 431, 49 N. E. 831. No error appearing, the judgment of the circuit court is affirmed. (68 Ind. App. 102) MOORE v. MCCLAIN et al. (No. 9493.) * contract was made in the state of Ohio and (Appellate Court of Indiana, Division No. 2. is not subject to regulation in this state; and (2) that the statute in question places a burden on interstate commerce and is therefore invalid. The first of these contentions is based on the fact that, while appellee's application was signed in Indiana he did not become a member of the relief organization until he was accepted by its superintendent at Cleveland, Ohio. Assuming, without deciding, that the relief agreement, treated separately, is to be considered as a contract made in Ohio, that fact alone will not permit its operation in Indiana in violation of the laws of this state. In the application which was signed by appellee, the regulations of the relief department were expressly made a part of the conditions of his contract of employment with appellant, and that contract was executed and performed within the state of Indiana. When the terms or nature of a contract show that it is to be performed in another country or state, then the place of making the contract becomes to that extent immaterial, and the law of the place of performance governs in determining the rights of the parties. 2 Elliott on Contracts, § 1119, and authorities cited; Old Dominion Copper, etc., Co. v. Bigelow, 203 Mass. 159, 174, 89 N. E. 1035. [3] Furthermore, the rule of comity does not require the enforcement of a contract entered into in another state when it is in violation of a positive legislative enactment which is declarative of the public policy of the forum. Lake Shore, etc., R. Co. v. Teeters, 166 Ind. 335, 342, 77 N. E. 599, 5 L. R. A. (N. S.) 425; Sondheim v. Gilbert, 117 Ind. 71, 78, 18 N. E. 687, 5 L. R. A. 432, 10 Am. St. Rep. 23; Carstens Packing Co. v. Southern Pac. Co., 58 Wash. 239, 242, 108 Pac. 613, 27 L. R. A. (N. S.) 975. [4] The second of appellant's contentions, as stated above, has, in all its substance, been heretofore considered by this court in Baltimore, etc., R. Co. v. Hagan, supra, and in Baltimore, etc., R. Co. v. Miles, 184 Ind. 719, 112 N. E. 524, and there denied on the ground that the Indiana law is not a regulation of interstate commerce, and affects the same only incidentally, if at all. We are satisfied with our previous holdings. April 12, 1918.) 1. TRUSTS 95-CONSTRUCTIVE TRUSTS. The court cannot construct a trust where the misconduct amounts merely to breach by a grantee of an absolute deed of his oral agreeundue influence connected with the transaction ment to reconvey, and there was no fraud or in its inception. 2. MORTGAGES 38(1) EVIDENCE AS TO CHARACTER OF TRANSACTION-SUFFICIENCY. strument was a deed rather than a mortgage. Evidence held to sustain finding that an in3. MORTGAGES 32(5) — ABSOLUTE DEED — EXISTENCE OF DEBT. In determining whether an absolute deed to one who discharged indebtedness on the land is a mortgage, the absence of a promise by the grantor to repay grantee at any specific time the amounts so paid out by him, while not conclusive, is a circumstance more favorable to the grantee than the grantor. Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge. Action by John F. Moore against William T. McCrain and another. From judgment for defendants, plaintiff appeals. Affirmed. George T. Pattison, of Danville, Alfred R. Hovey and Means & Buenting, all of Indianapolis, and J. J. M. La Follette, of Bloomington, for appellant. Emsley W. Johnson and Joseph W. Hutchinson, both of Indianapolis, for appellees. IBACH, C. J. The complaint in this case is in three paragraphs. The first, which is in the usual form of a suit to quiet title under section 1116, Burns 1914, is not now relied upon and need not be given consideration. The second and third paragraphs proceed upon the theory of an equitable ownership of certain lands described in a warranty deed executed by appellant, and it is sought to have such deed declared a mortgage and upon the payment of the amount found due appellees thereon that appellant's title to the lands described be quieted in him. The substance of certain averments of each of these paragraphs, which become material to the disposition of this appeal, are: The defendant Wm. T. McClain had, as administrator of the estate of Sarah A. Moore, deceased, appellant's mother, settled the same. Prior to April 7, 1900, plaintiff (appellant) had purchased of the several [5] Since appellant deducted from appel- heirs their interest in and to said real eslee's wages without lawful warrant the tate and had assumed all incumbrances thereamount sued for in this action, and as such on. That said land had been ordered sold to wages were fully earned and payable under pay debts of said estate, and that defendhis contract of employment, no demand was ant (appellee) had as administrator proposed necessary as a condition precedent to a suit to furnish a sufficient amount of money to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. plaintiff to meet said obligations, the amount | gage. On August 8, 1899, the former husof which was ascertained to be $1,500. On band of decedent and plaintiff's two brothers said date plaintiff conveyed said real estate by a deed absolute on its face to defendant. Said deed was intended by the parties and was in fact a mortgage given to secure the repayment of said $1,500 to defendant, and being the money advanced by him to pay the debts of the said Moore estate and prevent a sale of the lands. It may be noted here that there are no other averments in either paragraph of the complaint from which it might be contended that the complaint proceeds upon the theory that the deed was obtained by fraud or undue influence, except the averments that appellee obtained title to the particular lands while he was administrator of an estate in which they were involved. On the other hand, there are averments to be found in each paragraph which would indicate that it proceeded upon the theory that such deed was fairly obtained, but that the defendant refused to perform the agreement made when the deed was executed that he would reconvey when the amount found due was paid by plaintiff. Appellee answered the complaint by general denial. A trial by the court resulted in a finding and judgment in his favor. It is from this judgment, over appellant's motion for a new trial, that the appeal is taken. The only error assigned and relied on for a reversal is predicated on the overruling of the motion for a new trial, and the causes argued are that the decision of the court is not sustained by sufficient evidence and is contrary to law. The contention of appellant seems to be that the conveyance in form of a deed absolute on its face was in fact a mortgage to secure a loan, and that in equity it should be so declared, while it is insisted by appellee that his deed was absolute, and that an agreement which was made to reconvey the land constituted a conditional sale of which appellant did not avail himself, and therefore he is not entitled to relief. deeded to plaintiff their interest in the lands involved. On April 7, 1900, plaintiff executed and delivered to defendant William McClain a deed to the said lands for the consideration of $1,500, and the deed, was recorded May 18, 1900. McClain paid the school fund mortgage amounting to $826 and the Wilson mortgage of $531, both of which were released of record. The evidence further shows that the lands were described as a 30-acre tract, valued when the deed was executed at from $50 to $100 per acre. Outside of the deed and certain letters which passed between the parties, the evidence was oral and in the main conflicting. Appellant's further evidence tended to show that when the deed was executed appellee agreed to convey the same lands to him whenever the total sum paid by appellee above the amount received by him from the use of the lands was repaid, and that appellee agreed not to sell the land, but that he would hold it and reconvey whenever it was so redeemed. This is denied by appellee, who claims that he told appellant that if he ever concluded to sell he (appellant) should have the refusal. Appellee also testified that after appellant had possession of the farm for several months, after his mother's death, and before her estate was settled, he came to appellee and stated, in substance, that he would be unable to pay the interest on the loans. much less the principal, and have anything left to pay the expenses of obtaining an ed ucation and wanted appellee to take it off his hands. At that time appellant stated further: "One reason I want you to take it is I believe you will give me an opportunity to buy it back the others, if they got it through a foreclosure of some time if I am ever able. Perhaps some of a mortgage, would deprive me of that privilege." There is also evidence that on petition to sell the land at administrator's sale to pay debts the land was appraised at $1,350. Appellee had solicited bidders, but was unable to obtain any. At the beginning of the trial, the parties There is ample evidence, also, from which stipulated as follows: On November 3, 1898, the court could, and doubtless did, conclude Sarah A. Moore was the owner of the real that appellee did not possess or exert any estate described in the complaint. On that improper influence over appellant and did not day she died intestate, leaving surviving her take any unfair advantage of him in the as sole heirs at law the plaintiff and his two whole course of the transaction; but appelbrothers. On November 23, 1898, defendant lant insists that the trial court should have William C. McClain was appointed and quali- taken the contrary view, because the prefied as administrator of said decedent's es- sumption must obtain that an unfair and untate and continued to serve as such adminis- just advantage was taken of appellant betrator until January 27, 1900, when he was cause of the peculiar confidential relations discharged. While in life Sarah A. Moore which existed between the parties, and relies had executed two mortgages on said land, on that principle of law which has been anone to the state of Indiana for $700 and in-nounced by the courts in the following or terest at 6 per cent., and another for $450 similar language: with same interest to Isabelle Wilson. the time of decedent's death there was due $84 and interest on the school fund mortgage and $54 interest on the Wilson mort At "If one obtains the legal title to property by virtue of confidential relations and influence cording to the rules of equity and good conunder such circumstances that he ought not acscience retain the benefits thus acquired, a court of equity, in order to administer complete jus- | Another principle akin to the foregoing, and which appellant also contends is controlling here, has been very clearly stated recently by our Supreme Court in the following language: "There are certain legal and domestic relations with respect to which the law raises a presumption of trust and confidence on one side and a corresponding influence on the other. * * Where such a relation exists between two persons and the one occupying the superior position has dealt with the other in such a way as to obtain a substantial advantage, the law will presume that an improper influence was exerted and that the transaction is fraudulent. Westphal v. Williams, 107 N. E. 92, 93. [1] While the doctrine announced in these cases is well grounded and should always be applied in proper cases, it cannot be applied unless the evidence is sufficient to show actual or constructive fraud. In other words, the fraud out of which the court can construct a trust must be at the inception of the transaction. The court cannot construct a trust where the misconduct amounts simply to a breach of the contract to convey where there was no fraud or undue influence con nected with the transaction in its inception. Westphal v. Williams, supra; Alexander v. Spaulding, 160 Ind. 176, 181, 66 N. E. 694. In Westphal v. Williams, supra, the Supreme Court, in applying section 4012, Burns 1914, announced the universal holding of the courts to be that an express parol trust cannot be impressed upon lands conveyed by deed absolute on its face, but that: "Constructive trusts do not fall within the provisions of this statute and are excluded therefrom by the exception of such trusts as may arise by implication of law. A constructive trust arises in cases when the transaction involved is tainted by fraud actual or constructive. * * In such cases, the court does not act upon and enforce parol agreements to hold land in trust as the primary thing. It is the fraud or undue influence connected with the original transaction which justified the court in constructing a trust and holding the wrongdoer responsible as a trustee maleficio." [2, 3] It follows that appellant's claim must finally rest on the single proposition that the instrument in question is a mortgage and was so intended when made. We might agree with appellant that there are circumstances and some testimony from which the court might have inferred that the instrument was a mortgage, 1. e.: That by reason of their relationship appellee and appellant did not deal at arm's length; that there was an existing debt and that this instrument was executed to secure it; that the parties intended the deed in question as a mortgage and so understood it at the time of its execution; that the consideration paid was inadequate. But We are re that is not the question here. It is sons. It also shows that the indebtedness Appellant concedes, and such seems to be the law, that every case of this kind must be determined according to the circumstances surrounding it. Wolfe v. McMillan, 117 Ind. 587, 590, 20 N. E. 509. It is settled law that while courts are inclined to regard a transaction as a mortgage rather than a conditional sale, when the contract on its face shows a conditional sale and there are no facts explaining or contradicting its terms, the courts will carry it into execution. Hays v. Carr, 83 Ind. 275, 284. The view which may be taken of the evidence most favorable to appellant is that he had the privilege or option to repurchase the land within five years for a sum to be arrived at by computation which would wholly reimburse appellee. If such was an undisputed fact, still it would not be sufficient upon which to declare the deed a mortgage. Hays v. Carr, supra; Rogers v. Beach, 115 Ind. 413, 415, 17 N. E. 609. Regardless of the option, whether as stated by appellant or by appellee, appellant never availed himself of it, but shortly after the deed was executed purchased other lands in another county and never attempted to gain title to these lands until more than 14 years had passed, during which time appellee cultivated the lands, made numerous repairs and improvements. During all these years, according to appellant's testimony, he made no claim to the land except a single conversation which he testified took place at Franklin. This conversation was denied by appellee. This was all that was done by appellee to indicate in the slightest degree that he under stood the deed executed by him was a mortgage. When the circumstances enumerated are taken together with the evidence of appellee as to the true character of the transaction, we cannot say that the decision of the court is not sustained by sufficient evidence. The weight of the evidence was for the trial court, and the principles of law applicable to the facts proven have been properly applied. Judgment affirmed. (67 Ind. App. 425) REED v. FARMERS' BANK OF FRANK- Appeal from Circuit Court, Monroe County; Robt. W. Myers, Judge. Action by the Farmers' Bank of Frankfort against Harriet Reed, executrix, and others. Judgment for plaintiff, and the named defendant appeals. Affirmed. Jess B. Fields, of Bloomington, for appellant. Joseph E. Henley and George W. Henley, both of Bloomington, for appellee. HOTTEL, J. This is an appeal by appellant from a judgment for $889 in appellee's favor in an action brought by it in July, 1911, in the Monroe circuit court, on a note for $580.50 payable to the order of the "Wallace Manufacturing Company at the (Appellate Court of Indiana, Division No. 1. Bloomington National Bank, Bloomington, April 12, 1918.) ASSIGN 1. APPEAL AND. ERROR 719(1) error. 2. ABATEMENT AND REVIVAL 50 EXECUTORS-SUBSTITUTION IN SUIT. Burns' Ann. St. 1914, § 2829, forbidding action by complaint and summons against any executor on contract, etc., does not apply to a case where action was not brought against an executrix, but against her husband before his death, and upon her substitution as the representative of his estate she appeared in the action, so that, under section 318, as to voluntary appearance, there was no need for summons. 3. PARTNERSHIP 212 - PLEADING PART NERSHIP NOTE. In action on partnership note, stating a common cause of action against all of its members, the fact that one of them died and his executrix was substituted for him as defendant, since it did not affect the cause of action, or make it a claim against the estate of the deceased partner, did not make essential to the complaint averments showing there were no partnership assets out of which plaintiff could make its claim and no solvent partner living. 4. APPEAL AND ERROR 761-BRIEFS-SUF FICIENCY. Where appellant's motion for new trial contained 16 separate grounds, and her points and authorities, stated, under heading "On the Admission of Evidence," numerous general propositions without applying them to any particular ground of said motion, this was not a compliance with the rules. 5. WITNESSES 180 TRANSACTIONS WITH DECEASED-OBJECTIONS. In action on a partnership note where executrix of a deceased partner was substituted for him as a defendant, after a surviving partner had identified without objection an exhibit tending to prove the partnership, an objection to such identification that it was incompetent under Burns' Ann. St. 1914, § 521, as to testimony as to transactions occurring during the lifetime of a decedent, came too late. 6. WITNESSES 174 LIFETIME OF DECEDENT. TRANSACTIONS IN In such action, testimony of a surviving partner that he signed the note, being directly antagonistic to his interest, was admissible under Burns' Ann. St. 1914, § 526, excepting from the provisions of section 521 et seq., as to witnesses as to matters occurring during decedent's lifetime, a party adverse to the party calling him. Ind.," and signed by "Garrison Brick Com- [1] Under points and authorities in her brief, appellant challenges the action of the court in overruling her motion to dismiss the complaint as to her. It will be observed that such ruling is not challenged by any assignment of error, and hence is not presented for our determination. We might add in this connection that the only reason suggested by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 262 119 NORTHEASTERN REPORTER appellant in her points and authorities, in support of her contention that the cause should have been dismissed as to her, is that furnished by section 2829, Burns 1918, which provides that no action shall be brought by complaint and summons against any executor, administrator, and any other person or persons or his or their legal representatives on contract, etc. [2] The answer to this contention is that this action was not brought against the executrix, but against her deceased husband before his death. Upon her substitution as the representative of the estate of the deceased husband, she appeared to the action, and Section there was no need for a summons. 318, Burns 1914. Appellant has not set out in her brief the complaint, the note sued on, or the demurrer to the complaint, or the memorandum filed therewith. This is not a compliance with the rules of the court; but, under her points and authorities and under the heading "On Overruling Appellant's Demurrer to Complaint," appellant states two general propositions which appellee has in effect treated as being a sufficient challenge of the complaint, and we will likewise so treat said propositions. They are, in substance, as follows: (1) That such complaint does not allege facts showing the authority of C. P. Garrison to sign said note as and for the members of the firm constituting the "Garrison Brick Company"; and (2) that such complaint does not contain averments showing that there are no partnership assets out of which appellee could make its claim and no solvent partner living. As affecting said first ground of objection, the amended complaint contains said general averment, indicated supra, that the defendants Samuel P. Reed, Charlie P. Garrison, and John H. Huntington, by the firm name and style of the Garrison Brick Company, executed said note, and also the specific averThat C. P. Garrison, the ments as follows: person who signed the firm name and style of "Garrison Brick Company" to said note by himself as manager, is the same person as Charlie P. Garrison, one of the defendants herein; that, at the time said defendant C. P. Garrison signed the firm's name to said note, he was a member of said firm of Garrison Brick Company, and was the manager thereof, and as such member and manager was authorized by said firm to sign and execute said note, and that he was acting within the scope of his authority and within the scope of the firm's business, and has a right to execute and deliver said note to the These averments, we think, payee thereof. are a complete answer to appellant's first objection. In support of its second objection, appellant cites the case of Weyer et al. v. Thornburgh, Adm'r, 15 Ind. 124. This case simply holds that inasmuch as partnership creditors have a priority in the distribution of part nership assets, and individual creditors can [3] As before indicated, this action was the ordinary suit on a note executed by the partnership. It was not a claim against the estate of a deceased member of such partner. ship, but a complaint against all the members of such firm. The complaint stated a common cause of action against all of such members, and the fact that one of them died and that the executrix of his will was substituted as his defendant did not affect appellee's cause of action on said note, or make the averments insisted on by appellant essential or necessary thereto. Appellant's right to have partnership property, if there is any, exhausted before the property of the estate of her decedent, could have been reached in another way. [4] Appellant's motion for a new trial contains 16 separate grounds. In her points and authorities, under the heading "On the Admission of Evidence," she states numerous general propositions without applying them to any particular ground of said motion. This was not a compliance with the rules. German Fire Ins. Co. v. Zonker, 57 Ind. App. 696, 108 N. E. 160; Chicago, etc., R. Co. v. Dinius, 180 Ind. 596, 103 N. E. 652. However, the particular ground of the motion for a new trial to which some of said propositions were intended to be directed is fairly inferable from their wording, and appellee so interprets such propositions and discusses them. These will be considered and deterIn suits in which an executor or mined. The first of said propositions is as follows: administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate. Section 521, Burns 1914. [5] Appellee has assumed, and doubtless properly so, that this proposition is directed to the admission of the evidence of the defendant Garrison in relation to the identification of Exhibit A. The record, however, shows that Garrison identified said instrument and testified without objection that he and Reed had signed it. This evidence authorized the admission of such exhibit as evidence, provided, of course, that it was material. The exhibit, in fact, proved or The aptended to prove the partnership. pellant at this point objected on the ground that it was "an effort to prove a partnership existing between this defendant and another defendant which will affect the rights of the |