not so confined, as it is well settled, that acts | Fairbanks v. Warrum (1913) 56 Ind. App. 337, constituting fraudulent concealment may pre- 104 N. E. 983, 1141, and authorities there citcede, be concurrent with, or subsequent to, the ed. It could not be successfully maintained accruing of the cause of action. Boyd v. Boyd that all of said instructions were erroneous, (1867) 27 Ind. 429; Dorsey, etc., Co. v. Mc- and hence the rule stated is applicable here. Caffrey (1894) 139 Ind. 545, 38 N. E. 208, 47 [8, 9] Appellants also claim that the court Am. St. Rep. 290; Jackson v. Jackson, supra; erred in failing to give certain instructions Whitesell v. Strickler (1906) 167 Ind. 602, 78 tendered by them. Among such instructions N. E. 845, 119 Am. St. Rep. 524; Norris v. was one directing the jury to return a verHaggin, 136 U. S. 386, 10 Sup. Ct. 942, 34 dict for appellants. There was no error in L. Ed. 424. When we consider the evidence refusing to give such instruction as there was in the light of this rule, we are unable to say some evidence to sustain every material averthere was no evidence of concealment. There ment of appellee's complaint. An examinawas evidence of language used by appellant tion of the record discloses that the subjectAdolf Van Spanje, at the time he engaged ap-matter of the remaining instructions tendpellee to construct said houses, when considered by appellant, in so far as they correctly ered in the light of his relation to said brick stated the law, was substantially covered by company and their former business transac- the instructions given by the court on its own tions, that was well calculated to induce a motion. Under such circumstances there was belief in appellee that he was employed to no reversible error committed by the court construct such houses for said company. in refusing to give such instructions. J. F. There was evidence of later acts on the part | Darmody Co. v. Reed (1915) 60 Ind. App. 662, of said Van Spanje that were well calculated 111 N. E. 317; Vandalia R. Co. v. Parker to confirm such belief and deter appellee from (1915) 61 Ind. App. 146, 111 N. E. 637. making an investigation as to who was liable to him for the construction of such houses, such as directing appellee to have certain material used in such construction charged to said company, and in requesting appellee to take as much of its brick as possible, so as to help them out. From such facts and circumstances the jury may have drawn the inference that the said Adolf Van Spanje designedly induced such false belief on the part of appellee for the fraudulent purpose of causing him to construct said houses for appellants on the credit of said company. There was some evidence to establish facts from which such an inference might be properly drawn. Under such circumstances we are bound by the determination of the jury in that regard, although such evidence may have been strongly contradicted and not entirely satisfactory. Thompson v. Beatty (1908) 171 Ind. 579, 86 N. E. 961; Warner v. Jennings (1909) 44 Ind. App. 574, 89 N. E. 908; Hollingsworth v. Hollingsworth (1911) 50 Ind. App. 137, 98 N. E. 79; Monongahela, etc., Co. v. Walts (1913) 56 Ind. App. 235, 105 N. E. 160; Public Utilities Co. v. Cosby (1915) 60 Ind. App. 252, 110 N. E. 576.

[10] Appellants assigned a number of alleged errors in the admission and rejection of evidence, but have only presented one for the determination of this court. Such error relates to the ruling of the court in permitting appellee to testify as to what he understood from the declaration of appellant Adolf Van Spanje. The only reason urged in this court against the admission of such evidence is that such fact could not be established by parol evidence. Such ground of objection was not stated in the court below, and hence, under the well-settled rule, will not be considered on appeal. Malott v. Central Trust Co. (1906) 168 Ind. 428, 79 N. E. 369, 11 Ann. Cas. 879. [11, 12] However, there was no error in admitting such evidence. Its effect was to permit appellee to testify as to the belief which such declarations induced in him. Such belief was an essential element in appellee's right of recovery. Southern, etc., Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678; 12 R. C. L. § 109. Under such circumstances it was competent to prove such fact by the direct testimony of appellee. 10 R. C. L. § 116; Parrish v. Thurston (1882) 87 Ind. 437.

For the reasons stated, we conclude the court did not err in overruling appellants' motion for a new trial.

Finding no reversible error in the record, the judgment is affirmed.

[7] Appellants, in their motion for a new trial predicate error on the action of the court in giving certain instructions. The only evidence of any exception to the giving of such instructions taken by appellants appears in an entry of the court's proceedings in the following language: "And to the giving of said instructions by GAUMER v. REGISTER PUB. CO. et al. the court on its own motion the defendant excepts."

(No. 9564.)

(67 Ind. App. 658)

Such exception is in gross, or to such in- (Appellate Court of Indiana, Division No. 2.

RECORD

May 28, 1918.) structions as a whole. Under such circum1. CHATTEL MORTGAGES 208 stances available error cannot be predicated TIME-VALIDITY. on the giving of said instructions, unless all The rule that chattel mortgage not recordso given and excepted to were erroneous. | ed within 10 days, as required by Burns' Ann.

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TRANS

St. 1914, 7472, is prima facie void as to
third parties, with or without notice, does not
apply to the assignee of the mortgagee.
2. CHATTEL MORTGAGES 225(1)
FER OF PROPERTY-ESTOPPEL.
Where buyer from mortgagor of chattels
recognized the validity of the mortgage by de-
ducting the amount thereof from the purchase
price, he was estopped to deny the validity of
the mortgage.

Appeal from Superior Court, Lake County;
Chas. E. Greenwald, Judge.

Action by Frank C. Gaumer against the Register Publishing Company and another. Judgment for defendants, and plaintiff appeals. Reversed, with instructions.

Daniel B. Straley and Geo. E. Hershman, both of Crown Point, for appellant. Martin J. Smith, Frank B. Pattee, and Herbert T. Johnson, all of Crown Point, for appellees.

CALDWELL, C. J. Judgment was rendered against appellant by reason of his refusal to plead over on the sustaining of appellees' separate demurrers to his complaint. The substance of the complaint was as follows: December 2, 1912, Collins executed to Davison four promissory notes of that date, each in the sum of $500, maturing November 1, 1914, 1915, 1916, and 1917, respectively.

On

[1] The complaint contained certain allegations to the effect that the purchase of the mortgaged property by appellee company was not bona fide. Appellant's counsel stated in oral argument that no reliance was placed on such allegations, and we shall therefore assign to them no force or value.

Section 7472, Burns 1914, is to the effect that no assignment of goods by way of mortgage shall be valid against any other person than the parties thereto, where such goods are not delivered to the mortgagee or assignee and retained by him, unless the mortgage shall be properly acknowledged and recorded in the proper county within ten days after its execution.

The mortgage here was not recorded within ten days after its execution. The parties to the mortgage at the time of its execution were Collins and Davison. The mortgage, not having been recorded within the time

fixed by the statute, while valid as between Collins and Davison, was at least prima facie void as to appellees here, regardless of whether they had notice of its existence, actual or 42 N. E. 905; Ross v. Menefee, 125 Ind. 432, constructive. Stengel v. Boyce, 143 Ind. 642, 25 N. E. 545; Guyer v. Union Trust Co., 55 Ind. App. 472, 104 N. E. 82; Wolf v. Russell, 55 Ind. App. 660, 104 N. E. 603.

Davi

rule announced by these decisions governs
[2] We proceed to determine whether the
here. The special circumstances disclosed by
the complaint are as follows: Collins was in-
debted to Davison in the sum of $2,000 and
interest, as represented by the notes.
son held a mortgage against Collins' prop-
erty to secure the notes. As between them the
mortgage was valid, although not recorded
within ten days after its execution. The
notes and mortgage were assigned to appel-
lant by Davison. By the transfer of the notes
Collins became indebted to appellant rath-
er than Davison, in the sum thereby repre-
sented. As appellant was Davison's assignee,
the former and Collins. Reynolds v. Quick,
the chattel mortgage was valid as between
128 Ind. 316, 27 N. E. 621; Warner v. Warner,
30 Ind. App. 578, on 586, 66 N. E. 760. Such
being the situation, appellee publishing com-

the same date, to secure the payment of the notes, Collins executed to Davison a chattel mortgage on a certain printing outfit and newspaper plant located at Crown Point, Lake county. Under a certain provision of the mortgage all the notes were due by reason of the failure to pay certain of them at maturity. The mortgage was recorded in the proper county December 17, 1912, 15 days after its execution. Appellant is the owner of the notes and mortgage by virtue of certain assignments and indorsements. Appellee company is the owner of the property mortgaged by virtue of a purchase. Appellee Bibler is made a defendant by reason of a certain mortgage standing unreleased of record in her name, alleged to be paid and satisfied. Prayer for judgment in the sum of $2,500 and the foreclosure of the mortgage. The allegation of the complaint on which appellant relies in support of his assignment that the court erred in sustaining the demur-pany purchased the mortgaged property of rers is as follows:

"That the Register Publishing Company, one of the defendants herein, did not purchase and did not become the owner of said property until on or about the day of May, 1914, and that said mortgage was on record and unreleased and unsatisfied at that time, and that the said defendant Register Publishing Company, at the time of purchasing said property, took into consideration the indebtedness secured by said mortgage as a part of the purchase price for said property, and acknowledged said mortgage as a good, valid, and existing lien on and against said property."

It sufficiently appears that the property mortgaged was not delivered to, and retained by the mortgagee or his assigns.

Collins. While negotiating the purchase it knew or discovered the existence of the mort

gage. 'It thereupon acknowledged the validity of the mortgage and recognized that the sum thereby secured must be paid. Having agreed with Collins respecting the value of the property, and the amount of the purchase price thereof, Collins and the company further agreed that the amount secured by the mortgage should be deducted from the agreed purchase price, and that only the balance should be paid, which was accordingly done; that is, if the agreed purchase price was $5,000, something more than $2,000 was deducted therefrom by reason of the mortgage,

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"In theory he [the purchaser] has deducted the amount of the mortgage from the purchase low him to urge the invalidity of the mortgage, price, and it would clearly be inequitable to aland retain the amount thereof, which was in effect furnished by his grantor, and not apply it to the discharge of the mortgage.'

Here the mortgage was valid as between Collins and Davison and his assigns. Collins' liability on the notes is not questioned. He remains liable thereon as between him and appellant. It is expressly alleged that when appellee purchased the property it took into consideration the indebtedness secured by the mortgage as a part of the purchase price and acknowledged the validity of the mortgage. Under such circumstances this case comes easily within the authorities not only that the company may not be heard to contest the validity of the mortgage, but also that the mortgaged property thereby became the primary fund for the payment of the mortgage debt. See the following: Gregory v. Arms, 48 Ind. App. 562, 96 N. E. 196, and cases; Bunch v. Grave, 111 Ind. 351, on 355, 12 N. E. 514; Hancock v. Fleming, 103 Ind. 533,

treated as valid, and only the balance, or something less than $3,000, was paid. The facts as alleged do not amount to an express promise by the publishing company to pay and discharge the notes. Perhaps they do not amount to an unconditional implied promise to do so. It seems to us apparent, however, that Collins and the publishing company thereby contemplated that, as between them, the mortgaged property should at least constitute the primary fund for the payment of the notes; the alternative being the payment of the latter by the company. At any event Collins, while he has paid the notes as between him and the company, is not discharged of liability thereon as between him and appellant. The company, having received the full value of the notes by acknowledging and treating the mortgage as valid, now, while retaining such value, declares that the mortgage is void, and asks this court in its behalf to declare it so. The foregoing indicates our interpretation of the complaint. Under such circumstances may the publishing company be heard to say that the mortgage is invalid? In considering this question 3 N. E. 254; Atherton v. Toney, 43 Ind. 211; it should be remembered that the mortgage here is not a nullity. It was a valid instrument as between the parties. If invalid as presented here, it is invalid only as against the party who acknowledged its validity and on such acknowledgment received and retains the full sum by it secured.

On the involved subject the following is said in Jones on Chattel Mortgages (2d Ed.) § 487:

"One who has purchased property subject to a mortgage, so that the amount of the mortgage forms a part of the consideration of the purchase, cannot deny its validity."

The author in a note to such section refers to his work on Mortgages (sections 735-770) for a further discussion of the subject, and states that the rights and liabilities of one who purchases subject to a mortgage are for the most part the same whether the property be real or personal. In his work on Mortgages (volume 1, § 736 [3d Ed.]) the author

says:

"The amount of an existing mortgage having been deducted from the purchase money of the incumbered property, the grantee in effect undertakes to pay the amount of the purchase money represented by the mortgage to the holder of it, and he is as effectually estopped to deny its validity as he would be had he in terms agreed to pay such mortgage."

See, also, Jones on Mortgages (7th Ed.) § 744; United States, etc., Co. v. Keahey (Okl.) 155 Pac. 557, L. R. A. 1917C, 829; Johnson v. Thompson, 129 Mass. 398; Fuller v. Hunt, 48 Iowa, 163; Kellogg v. Secord, 42 Mich. 518, 3 N. W. 868; Russell v. Allen, 10 Paige Ch. (N. Y.) 249; Pinnell v. Boyd, 33 N. J. Eq. 190; Cobbey on Chattel Mortgages, 632.

Durham v. Craig, 79 Ind. 117; United States, etc., v. Keahey (Okl.) 155 Pac. 557, L. R. A. 1917C, 829, supra, note; Rice v. Sanders, 8 L. R. A., note page 316; 27 Cyc. 1342 et seq.; 11 C. J. 653.

We conclude that the complaint states a cause of action against appellee company. It results also that it is good as against appellee Bibler.

Judgment reversed, with instructions to overrule each demurrer filed to the complaint and for further proceedings in harmony with this opinion, and with permission to reform the pleadings if desired.

(97 Ohio St. 280) STATE v. LEHR. (No. 15553.) (Supreme Court of Ohio. March 5, 1918.) (Syllabus by Editorial Staff.) CRIMINAL LAW 510- ACCOMPLICE TESTIMONY-CORROBORATION.

In a prosecution for abortion, corroborating evidence of the accomplice testimony is not essential to a verdict of guilty.

Nichols, C. J., dissenting.

Error to Court of Appeals, Wayne County. of common pleas of abortion, and from a Joseph W. Lehr was convicted in the court judgment of the Court of Appeals reversing the judgment of conviction, the State of Ohio brings error, after leave granted therefor. Judgment of the Court of Appeals reversed, and judgment of court of common pleas af

firmed.

The defendant in error, Joseph W. Lehr, was convicted in the court of common pleas of Wayne county, Ohio, at the September

In the Keahey Case, supra, the court said term, 1915, upon a charge of having perof a similar situation:

formed an abortion upon one M. H., on the

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We find no error in the record to support the judgment of the Court of Appeals.

The judgment of the Court of Appeals is therefore reversed, and the judgment of the court of common pleas affirmed. Judgment reversed.

23d day of November, 1914. Upon trial had,, accused himself upon the witness stand. The the jury found the said Lehr guilty. The reason assigned by the court for the reversal defendant filed his motion for a new trial, of the judgment is contrary to what has been alleging the usual errors, which motion was the established law of Ohio in criminal proby the court of common pleas overruled. Er- cedure for more than a half century. ror was prosecuted to the Court of Appeals of Wayne county, which court reversed the judgment below on the sole ground "that there was not any evidence offered which corroborated or tended to corroborate the testimony of the accomplice, M. H." The state of Ohio now prosecutes error to this court, after leave granted therefor, to reverse the judgment of the Court of Appeals. Benton G. Hay, Pros. Atty., of Wooster, for the State. W. E. Weygandt, H. R. Smith, and John McSweeney, all of Wooster, for defendant in error.

PER CURIAM. No question of fact is before us. The question of the guilt or innocence of the defendant in error upon the facts of the case was determined by the courts below, and the only question here is a question of law.

The Court of Appeals in reversing the case had before it the claimed error that the verdict was contrary to the weight of the evidence, but they did not reverse upon that ground. They did, however, reverse on the sole ground "that there was not any evidence offered which corroborated or tended to corroborate the testimony of the accomplice, M. H.”

WANAMAKER, NEWMAN, JONES, MATTHIAS, and JOHNSON, JJ., concur. NICHOLS, C. J., dissents from the judgment.

(97 Ohio St. 321) KENT WATER & LIGHT CO. v. PUBLIC UTILITIES COMMISSION et al. (No. 15669.)

(Supreme Court of Ohio. March 5, 1918.)

(Syllabus by Editorial Staff.)

The Public Utilities Commission, entertaining the view that its valuation of a water company, was grossly excessive by reason of the company's withholding of certain information, should, before fixing the rates to be charged for water, have ordered a revaluation under the authority conferred by Page & A. Gen. Code Supp. 499-11.

Error to Public Utilities Commission. From an order of the Public Utilities Commission and others fixing a schedule regu

& Light Company, the company brings error. Order reversed, and cause remanded.

This brings us to the vital questions in the case: (1) Under the established law of Ohio is any corroborating evidence essential to a verdict of guilty? (2) If so, does the record disclose such corroborative evidence? One of the earliest and best considered cas-lating rates to be charged by the Kent Water es definitely declaring the rule of law with reference to the testimony of accomplices is that of Allen v. State, 10 Ohio St. 288. The court at that time was composed of such eminent judges as Brinkerhoff, Scott, Sutliff, Peck, and Gholson, and they all concurred in the syllabus and judgment. The fifth paragraph of the syllabus reads:

"While it is the duty of the court, in their discretion, to advise the jury not to convict of felony upon the testimony of an accomplice alone, without corroboration, there is no rule of law preventing a jury from convicting upon the uncorroborated testimony of an accomplice.'

This doctrine is cited with approval in State v. Robinson, 83 Ohio St. 136, 93 N. E. 623, 21 Ann. Cas. 1255. It is sound and salutary law.

The jury in the instant case were so instructed. They did convict. Under this doctrine it is immaterial as to whether there was or was not corroborating evidence. But the record does disclose corroborating evidence, particularly that of Frank W. Wood, and for aught that we may know there may have been further corroborating evidence in the appearance, manner, and conduct of the

Mather & Nesbit, of Akron, and Miller, Thompson, Dunbar & Martin, of Columbus, for plaintiff in error. Joseph McGhee, Atty. Gen., and C. A. Radcliffe, of Lancaster, and Britton S. Johnson, of Kent, for defendants in error.

PER CURIAM. Plaintiff in error is complaining of a schedule fixed by the defendant in error, regulating rates which plaintiff in error may charge its water consumers in the village of Kent, Ohio.

Prior to the fixing of the rates, a valuation of the utility had been had by the Utilities Commission. The valuation was fixed at the sum of $127,113.31.

[1] Complaint is made that on the basis of such valuation the rates fixed by the commission will enable complainant to earn but 42 per cent. This, it is claimed, is unreasonable, in fact, confiscatory. The court is of opinion that such a return on capital invested is inadequate, and, if the valuation of the utility is correct, then the order fixing

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NICHOLS, C. J., and

WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur.

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