Craig v. Ensey. 3. That the circuit court erred in finding in favor of the appellee and against the appellant, as there was no sufficient evidence of notice given by the appellee to the appellant to quit the premises sought to be recovered, the notice given in evidence being substantially insufficient and not properly served; 4. That the circuit court erred in excluding certain evidence offered by the appellant to prove that the appellee had practised a fraud upon her in leasing the hotel to her, and had rented a room in the same building with the hotel to another person, which was used in such a way as to injure her business as the keeper of such hotel; 5. That the circuit court erred in rendering judgment against the appellant, where, by the laws of the land, such judgment ought to have been in her favor; 6. That the circuit court erred in overruling the appellant's motion for a new trial. The second, third and fourth paragraphs of the appellant's answer, referred to in the first assignment of error, and struck out by the circuit court, not having been made a part of the record by a bill of exceptions, are not properly before us, and hence we cannot consider the question. of their sufficiency here. Buskirk Practice, 142; Shepard v. Birth, 53 Ind. 105; Ward v. Angevine, 46 Ind. 415; Oiler v. Bodkey, 17 Ind. 600. As to the complaint, to which the second assignment of error relates, no specific objection to it is pointed out to us here, and we see none, upon a careful examination of it. The third, fourth and fifth errors embrace matters only proper to be considered on a motion for a new trial; and, as these matters were not assigned as causes for a new trial, in the circuit court, we can not review them in this Branham v. Record, 42 Ind. 181. court. The first clause of the first cause assigned for a new trial, in the circuit court, did not constitute any lawful rea Harlen v. Watson et al. son for a new trial. The alleged "irregularity" did not occur on the trial, but antecedently to and independently of it, constituting a matter of itself proper to be assigned for error here, if relied upon as erroneous. The latter clause of said first cause for a new trial was too general and indefinite to be available in this court. The excluded evidence was in no manner identified or particularly referred to by it. White v. Rice, 48 Ind. 225; Morrow v. The State, 48 Ind. 432; Anderson v. The Greensburgh, etc., Turnpike Co., 48 Ind. 467; Meek v. Keene, 47 Ind. 77; Buskirk Practice, 244, 245, 246. No question was raised, upon the motion for a new trial, as to the improper admission of any evidence. The evidence, as admitted by the circuit court, tended strongly to sustain its finding. We can not therefore say, that the finding was not sustained by sufficient evidence. Nor can we hold that the finding was contrary to law. We see no error in the proceedings below. The judgment is affirmed, at the costs of the appellant. Petition for a rehearing overruled at November term, 1878. HARLEN V. WATSON ET AL. REVIEW OF JUDGMENT.-Cross Complaint for Review.-Fraudulent Conveyance.-Evidence.-Husband and Wife.-Demurrer. - Insufficiency of Complaint a Ground for Review.-Coverture.-Limitations.-Legal Disabilities. Practice.-Sheriff's Sale. In an action by B., against A., G. and others, to review a judgment in favor of G., against A. and B., rendered in an action by G., against A. and B., to set aside certain alleged fraudulent conveyances made through J., by S., to A. and B., the wife and minor child of S., A. filed a cross complaint against G., alleging, that, in the action sought to be reviewed, G.'s com 63 143 139 555 63 143 146 633 Harlen v. Watson et al. plaint against A. and B. alleged, that the conveyances attacked had been made by S., to defraud G. in the collection of a debt in his favor against S, existing prior, and merged in a judgment subsequent, to the making of such conveyances, and that S., from and after the rendition of such judgment, had been "wholly insolvent;" that A., on her own behalf and as guardian ad litem of B., had filed a cross complaint against G., alleging that, in consideration of money advanced by A. to S., her husband, to pay off a debt owing by him, and in consideration of her joining with him in a conveyance of certain other lands, he had promised to procure the conveyance to her of the land in controversy; that, either by mistake or otherwise, but without her knowledge or consent, he had taken such conveyance in his own name; that thereupon, without any intention on her part to defraud his creditors, and without any knowledge of her husband's indebtedness, and solely to carry out his agreement with her, she and her husband made the conveyance complained of to J., and J., at her request, had made the conveyance complained of to A. and B.; and that, at the time of such conveyances, S. was solvent; that a demurrer to such crosscomplaint, for insufficiency, had been sustained, to which A. had excepted; that thereupon judgment was rendered, setting aside such conveyances and subjecting the land in controversy to sale on execution to satisfy G.'s judgment against S.; that said land had been sold, and a certificate of purchase issued, to G., by the sheriff; that A. was, at the time of such action by G., and now is, a married woman. Prayer, that the sheriff be enjoined from conveying to G., that the judgment against A. and B. be reviewed, that the demurrer to A.'s said cross complaint be overruled, and that the title to the land be quieted in A, and B. A.'s cross complaint for review set out a transcript of the proceedings and judgment had in the action sought to be reviewed, which transcript, though not certified to by the clerk, was averred to be a full, true and complete copy thereof. Held, on demurrer, that A.'s cross complaint for review is sufficient. Held, also, that her cross complaint in the action sought to be reviewed was sufficient. Held. also, that G.'s demurrer to A.'s cross complaint for review admitted the truth of the allegation that the transcript of the former action was full, true and complete. Held, also, that, as A.'s cross complaint in the original action was not an answer to G.'s complaint, the demurrer to the former could not have been carried back and sustained to the latter. Held, also, that the allegations of such cross complaint, seeking affirmative relief, could not have been given in evidence under the general denial, which was also pleaded by A. Held, also, that the insufficiency of G.'s complaint was good ground for a review of the judgment, though no demurrer thereto was filed. Held, also, that such complaint was insufficient. Harlen v. Watson et al. Held, also, that the failure of A. to file her cross complaint for review, within three years after the rendition of the judgment sought to be reviewed, is avoided by the averment of her coverture as a legal disability. SAME.-Legal Disabilities. When Pleaded.-Demurrer.-Where a complaint shows upon its face that the action is barred by the statute of limitations, and also shows that the plaintiff is under no legal disability, it is insufficient on demurrer; but, where it does not affirmatively show that the plaintiff is under legal disability, such fact must be made to appear by answer. From the Tipton Circuit Court. J. E. Heller and D. V. Burns, for appellant. J. Green, D. Waugh, J. W. Robinson, A. Q. Jones and W. S. Ryan, for appellees. BIDDLE, J.-In 1875, Joshua K. Harlen, Jr., Rosa B. Harlen and John C. Harlen, by David N. Fisk, their next friend, brought this complaint to review a judgment rendered in 1870 against them and the appellant, at the suit of the appellees, declaring a deed purporting to convey certain lands to the plaintiffs, the defendants therein, and the appellant, to be fraudulent and void as against creditors, and decreeing the sale of said lands to satisfy certain claims in favor of the appellees against Joshua K. Harlen, Sr., the vendor in the deed. To the present complaint for review the appellant is made a party defendant. She appeared, and, admitting the facts as stated in the complaint, filed a cross complaint against the appellees, which substantially contains the following averments: That, on the 21st day of April, 1870, certain of the appellees filed their complaint against the appellant, Joshua K. Harlen, Sr., and Josiah M. Clark, and the other appellees herein, averring, that, on the 21st day of October,. 1868, Joshua K. Harlen, Sr., was the owner of certain described lands; that, on said day, the said Joshua K. Harlen, Sr., and the appellant, then his wife, conveyed the said lands to Josiah M. Clark, without any consideration,. VOL. LXIII.—10 Harlen v. Watson et al. and that said Clark, on the 24th day of October, 1868, conveyed the same to the said Joshua K. Harlen, Jr., Rosa B. Harlen and John C. Harlen and the appellant; that, prior to said conveyances, the said Joshua K. Harlen, Sr., was indebted to certain of the defendants herein, in large sums of money, for which they have since recovered judgments, sued out executions thereon, and exhausted the property of Joshua K. Harlen, Sr., which failed to satisfy said judgments, and that said conveyances were fraudulent, etc.; that, on the 6th day of May, 1870, she, for herself and as guardian ad litem of the minor defendants, the said Joshua K. Harlen, Jr., Rosa B. Harlen and John C. Harlen, filed their separate answers to said complaint in two paragraphs, the first being a general denial, and the second a cross complaint, showing that the appellant had paid full value for the property conveyed to her and said children, without knowledge of the existence of the indebtedness of the said Joshua K. Harlen, Sr., to the plaintiffs; that said conveyance was accepted by them without any fraudulent intent, and asked that the title to said lands be quieted in them; that to this cross complaint the plaintiffs filed their demurrer, for the reason that the same did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and exceptions reserved to the ruling; that such proceedings were had in said cause, that a verdict was returned at the May term, 1870, but no entry of judgment or decree was made or signed by the court during said May term, 1870; that, at a time subsequent to said term, a nunc pro tune entry of the finding and judgment in favor of said plaintiff's and against the appellant and others, and an order of sale of said premises, were made in said cause solely by J. V. Cox, clerk, as of the 16th day of May, 1870, " and said suit being determined went off the docket, and has never since been reinstated." 66 That, on the 19th day of December, 1870, said plaintiffs |