court, that, because the witness or witnesses "had no reason or motive for remembering" the admissions by the relatrix, "but little reliance" should be placed upon their testimony. However considered, the instruction is erroneous.

The sixth instruction given by the court is as follows:

"The relatrix and defendant have testified, and they are both interested in the event of the suit. This fact should be considered in weighing their evidence, in connection with the other facts and circumstances which I have indicated apply to witnesses generally."

We think that this instruction is also erroneous. It very clearly discredits the parties named because they are interested in the event of the suit. The charge is that it was the duty of the jury to consider the fact that the parties named were interested in the event of the suit. The jury would not understand that, on account of that interest, greater weight was to be given to the testimony of the interested parties. Very clearly, they understood that they were to give less weight to that testimony. In speaking of a similar charge, it was said, in the case of Dodd v. Moore, 92 Ind. 397:

"The jury have the right, in all cases, in weighing and settling conflicts in testimony, to consider the interest which the witnesses may have in the result of the litigation; and it is proper to instruct them that they may exercise that right. It may be that in many cases witnesses unconsciously warp and color their testimony by reason of interest, and it may be that in many instances witnesses purposely falsify by reason of such interest; but whether such is the fact in any given case is a question of fact to be left to the jury. Surely, the courts cannot say, as a matter of law, that because a witness may have an interest in the litigation, less weight should be given to his testimony."

The reasons that condemned the instructions in that case condemn the above instruction in this case. See, also, as in point, Woollen v. Whitacre, 91 Ind. 502, and cases there cited; Nelson v. Vorce, 55 Ind. 455; Greer v. State, 53 Ind. 420; State v. Sutton, 99 Ind. 300; Hartford v. State, 96 Ind. 461; Thomp. Charg. Jur. 58, 59.

Here, again, the instruction applies alike to the relatrix and to appellant, but that in no way cures the error. But for the instructions casting discredit upon appellant's testimony because of his interest, the jury might have given full credit to his testimony, and rendered a different verdict.

The fifth instruction is open to the same objection. So much of it as needs to be here set out is as follows:

"The jury are the judges of the credibility of the witnesses, and, in determining the weight to be given to the testimony of the different witnesses, you should consider the relationship of the witnesses to the parties, their interest in the event of the suit," etc.

Here, again, it is enjoined upon the jury as a duty, in determining the credibility of witnesses, to consider their interest in the event of the suit, and their relationship to the parties; and, here, again, by the phraseology of the instructions, discredit is thrown upon the classes of witnesses named. One of the witnesses in this case, and one of the most important witnesses for appellant, was his father, who contradicted the relatrix upon the vital points in the case. By the above instruction, discredit is thrown upon his testimony, by reason of his relationship to ap

pellant. The jury had a right to consider that relationship if they thought it worthy of consideration, and might have been instructed as to that right, but to enjoin it as a duty implied infirmity in the testitimony, by reason of the relationship.

In these instructions the court not only invaded the province of the jury, but indicated to them that, as a matter of law, the testimony of some of the witnesses was entitled to less credence than the testimony of others. For these reasons the judgment must be reversed.

Many other questions are discussed by appellant's counsel, but as they may not arise upon another trial, it is not necessary that we should decide anything in relation to them.

The judgment is reversed, at the cost of the relatrix, and the cause remanded, with instructions to the court below to sustain appellant's motion for a new trial.

(105 Ind. 237)

HEBERD V. WINES and others.

Filed January 28, 1886

1. NEW TRIAL-MOTION FOR, AFTER TERM-WHAT IT MUST SHOW.

A written motion for a new trial, although made after the term at which the judgment was rendered, need not definitely show the time of the rendition of the judgment, nor that a proper bond or undertaking has been filed, when the record otherwise shows it.

2. SAME-MOTION TO SET ASIDE ORDER GRANTING NEW TRIAL MUST BE WELL TAKEN AS A WHOLE.

Where one of two defendants is entitled to a new trial as of right, it is not available error for the court to overrule a motion by the plaintiff to set aside the order granting a new trial, when such motion is not limited to so much of the order as granted a new trial to the defendant not entitled thereto.

8. HUSBAND AND WIFE-USE OF WIFE'S MONEY-DEED MADE TO HUSBAND BY MISTAKE EFFECT.

Where a husband borrows his wife's money to buy real estate, and afterwards, while solvent, purchases other real estate, which, by agreement with each other and with the vendor, is to be deeded to the wife in payment of the money already borrowed, but, by mistake, the deed is made to the husband, the wife becomes the real and equitable owner thereof from the time of the purchase, with rights superior to those of the judgment creditors of the husband. 4. JUDGMENTS-LIENS ONLY ON ACTUAL INTEREST OF DEBTOR IN LANDS.

Judgments are simply liens on the actual interest of the debtor in lands, and do not stand in the way of the enforcement of prior equitable interests therein. Appeal from Green circuit court.

Cullop, Shaw & Kessinger, for appellant.

Rose & Short and Alexander & Letsinger, for appellees.

ZOLLARS, J. Appellee Morrison brought this action against appellees Wines and Wines and appellant, to quiet the title to certain lots in Bloomfield. He alleged in his complaint that, in addition to other sources of title, he derived title through a sale by the auditor for delinquent taxes. Appellant filed a cross-complaint against Morrison and Wines and Wines, in which he set up that on the twenty-second day of October, 1873, he recovered a judgment against appellee William Wines;

that at the time the judgment was rendered, and until the sale for taxes, and the purchase by Morrison in 1881, said Wines was the owner of the lots in controversy, and that hence the judgment was a lien thereon. He asked that the judgment might be declared to be a lien upon the lots, prior to any legal or equitable claim by William Wines, or his wife, Nancy J. Wines. William Wines filed an answer to this crosscomplaint; but it is not in the record. Nancy J. Wines filed a separate answer to appellant's cross-complaint, and also a cross-complaint against appellee Morrison, and her husband, William Wines. In her crosscomplaint, as well as in one paragraph of her answer, she set up that she was the real and equitable owner of the lots; that her husband purchased them for her, and paid for them with her money, which came to her from her father's estate; and that, without her knowledge and consent, and by mistake, the deed for the lots was taken in the name of her husband. She asked that her title to the lots might be quieted as against the claims of the other parties to the action. The case, having been put at issue by answers and replies, was submitted to the court for trial. The court found against Nancy J. upon her cross-complaint; that Morrison had no title to the lots, but was entitled to a first lien for the amount paid by him at the tax sale; that the judgment in favor of appellant was a lien upon the lots, junior to that in favor of Morrison, but superior to any claim by William Wines or Nancy J. Wines, except such interest as she might have as the widow of her husband, should she survive him. Judgment was rendered accordingly. At the next term of the court, Nancy J. and her husband filed a motion for a new trial, as of right under the statute. Rev. St. 1881, §§ 1064, 1065. This motion was sustained, and a new trial granted. At the succeeding term appellant filed a motion to set aside the order granting a new trial. This motion was overruled, and he excepted.

The contention by appellant is that the new trial was improperly granted, for two reasons.

The first is that the written application, or motion therefor, having been made at a term of the court subsequent to the rendition of the judgment, should have more definitely shown the rendition of the judgment, the time when rendered, and that the proper undertaking had been filed, although the record otherwise shows the filing thereof. In support of this contention the case of Crews v. Ross, 44 Ind. 481, is cited. The case of Physio-Medical College v. Wilkinson, 89 Ind. 23, is a complete answer to this contention. In that case the case of Crews v. Ross, supra, was disapproved.

The second reason relied upon is that the motion for a new trial was a joint motion by William Wines and Nancy J. Wines; that William Wines was not entitled to a new trial as of right; and that, therefore, the joint motion by him and his wife was improperly sustained. The argument that appellant applies to the ruling of the court applies with more force to his motion to set aside the order granting a new trial. It is clear that Nancy J. Wines was entitled to a new trial as a matter of right. This is conceded. Appellant's motion to set aside the order granting a

new trial was not limited to so much of the order as granted a new trial to William Wines. It was directed to the whole order, which embraced also the granting of a new trial to Nancy J. Wines. As to her, the motion to set aside the order was not well taken, and was properly overruled. It was not an available error, therefore, to overrule appellant's motion for the setting aside of the whole of the order granting a new trial. There is no available error in overruling motions and objections, where they are not well taken as a whole. Feeney v. Mazelin, 87 Ind. 226; Robertson v. Garshwiler, 81 Ind. 463; Elliott v. Russell, 92 Ind. 526; Carver v. Carver, 97 Ind. 497; Wolfe v. Pugh, 101 Ind. 293; Louisville, N. A., etc., R. Co. v. Falvey, 3 N. E. Rep. 389, (present term.) There was no error that appellant can make available in the overruling of his motion to set aside the order granting a new trial. It would have been of but little consequence to appellant to have the order granting a new trial set aside. as to William Wines, and not as to Nancy J. Wines, because, if she was the owner of the lots, his judgment was not and could not be made a lien upon them.

Upon the second trial the court rendered a personal judgment against William Wines in favor of appellant for the amount of his claim; found and adjudged that Nancy J, Wines was and had been the real owner of the lots, and quieted her title thereto, subject to the claim and lien in favor of Morrison for the amount of taxes paid by him.

Appellant's motion for a new trial, and his assignment of errors in this court alleging error in the overruling of that motion, call in question the sufficiency of the evidence to sustain the finding and judgment of the trial court. The evidence tends to establish the following facts: William and Nancy J. Wines were married in 1856. Shortly after that, Nancy J. received from her former guardian, and from her grandfather's estate, $875, mostly gold coin. This money passed into the hands of the husband, who purchased a farm, and used the money in paying for it, telling his wife that he would settle with her. He sold this farm, and bought another with the proceeds. At this time, the wife, Nancy J., insisted that something should be settled upon her and in her name, as an equivalent of her money used by the husband. She often made the same demand. During this time and subsequently there was an understanding that the husband should not only account to the wife for her money, but also for interest thereon. In 1869 her money, with accumulated interest, amounted to about $2,000. In that year the property in controversy was purchased at an agreed price of $1,500. The negotiations for the purchase of the property were carried on by the husband and wife. The understanding between them and the vendor was that it was purchased for the wife, and that the deed should be made to her. The agreement between the husband and wife was that the property should be hers, as an equivalent of the money the husband had received from her, and the accumulated interest thereon. The deed, however, was made to the husband. How this happened is not very satisfactorily explained. The evidence creates a strong inference that it was by the mistake of the scrivener, or the neglect of the parties to properly

direct him. The wife did not know of this mistake for more than a year after the deed was made. Five hundred dollars were paid at the time the deed was made, and the husband executed to the vendor his two notes of five hundred dollars each, secured by a mortgage upon the property. One of the notes was afterwards paid. These payments were made by the husband, but for the wife, as a means of returning to her what he had received from her. The second note was assigned by the vendor and payee. The assignee required a new mortgage to be executed by both William and Nancy J. Wines. This was executed in 1871. The note not having been paid at maturity, the mortgage was foreclosed in 1874, and the property sold. Before the expiration of the year allowed for redemption the certificate of purchase was bought and assigned to the wife, Nancy J. Wines. Here, again, the husband furnished the money for the purpose of saving the property for her, and as a means of returning to her what he had received from her. At the time the property was purchased and the first payment made, the husband, William Wines, was solvent, and, so far as shown by the evidence, was solvent when the other payments were made.

Under this evidence we think it clear that Nancy J. Wines was the real and equitable owner of the lots from the time of the purchase, although the legal title was lodged in the husband. Her money paid for the lots. The payments by the husband were just as much payments by her as if he had first refunded the money to her, and she had paid it over to the vendor. By the understanding and agreement of the parties the lots were hers. William Wines had no present interest in them, although the legal title was in him. The legal title would have been in Nancy J. but for a mistake or oversight.

It is settled in this state that judgments are simply general liens upon whatever interest the judgment debtor may have in lands, and no more; that such liens do not stand in the way of the enforcement of prior equitable interest in such lands; and that, where the judgment debtor has no interest except the naked legal title, the lien of a judgment does not attach. Hays v. Reger, 102 Ind. 524, S. C. 1 N. E. Rep. 386, and cases there cited; Boyd v. Anderson, 102 Ind. 217, S. C. 1 N. E. Rep. 724, and cases there cited; Foltz v. Wert, 2 N. E. Rep. 950, (present term;) Wright v. Jones, ante, 281, (present term.)

The lots having been paid for with the money of Nancy J., and the agreement having been that she should have the deed, and be the owner of the lots, it was the duty of William Wines, after the mistake in the deed was discovered, to have conveyed the legal title to her. If he had performed that duty, appellant, as a judgment creditor simply, could not have been heard to complain or object. In such a case it would not have been necessary to inquire as to whether or not, by reason of the statute of frauds, or for any other reason, Nancy J. might have coerced such a conveyance. Bremmerman v. Jennings, 101 Ind. 253. He did not make a conveyance, but the court below accomplished the same thing by adjudging Nancy J. to be the owner of the lots, and quieting her title thereto. It accomplished, in effect, what should have been voluntarily