Wilson, Administrator, v. Stewart et al.

art, as his widow, and Sarah White, intermarried with one William White, James J. Stewart, Matilda J. Stewart and Reuben E. Stewart, as his children surviving him; and that Eli Shumack has since become the administrator of his estate, in place of Daniel Fisher, who was executor of the decedent's last will.

The defendant Elizabeth Stewart demurred separately to the complaint, and her demurrer was sustained.

Upon a trial between the plaintiff and the other defendants, judgment was rendered against the estate of the said David Stewart, for the amount due upon the notes, and against the children of the said decedent, Stewart, above named, for the reformation of the mortgage, as prayed for, and for a foreclosure of it, as so reformed, upon two-thirds of the mortgaged lands.

The plaintiff, declining to' amend his complaint, or to further plead, as against the said Elizabeth Stewart, judgment was rendered in her favor upon her demurrer.

Error is assigned only upon the decision of the court sustaining Mrs. Stewart's demurrer to the complaint.

The objection urged to the sufficiency of the complaint, as against Mrs.Stewart, is, that, as it showed her to have been married woman at the time of the execution of the mortgage, the facts alleged did not make out a proper case against her for the reformation of the mortgage, and authorities are cited to sustain that position. This court, however, upon full consideration, has recently held that the deed of a married woman may be reformed in any matter of description merely, in the same manner, and to the same extent, as if she had been unmarried at the time of its execution, and that we still consider to be the better and more reasonable rule, as applicable to the system of laws adopted in this State for the alienation of property. Hamar v. Medsker, 60 Ind. 413; Carper v. Munger, 62 Ind. 481.

Following these authorities, we are led to the conclusion

Humphrey v. Thorn et al.

that the court erred in sustaining Mrs. Stewart's demurrer to the complaint.

In the assignment of error in this court, and the issuance and service of notice of this appeal, the names of James J. Stewart and Matilda Stewart, two of the defendants below, are omitted from amongst the names of the appellees, and for that reason counsel for the appellees move to dismiss the appeal.

This appeal is really and only from the judgment in favor of Mrs. Stewart; and her codefendants below are unnecessary parties to the appeal.

The motion to dismiss the appeal is therefore overruled. The judgment below, in favor of Elizabeth Stewart upon her demurrer to the complaint, is reversed, at her costs, and the cause remanded, with instructions to overrule her demurrer and for further proceedings.

HUMPHREY v. THORN ET AL.

VENDOR'S LIEN.-Lands Conveyed to Purchaser's Wife.-Judgment.-Promissory Note.-The vendor of a tract of land, at the request of the purchaser, conveyed part thereof to the latter's wife and the residue to the purchaser, taking of the latter, for an unpaid balance of the purchasemoney, his promissory note. Such note becoming due and remaining unpaid, the vendor obtained personal judgment thereon against the purchaser, and, the latter having died insolvent, the judgment plaintiff instituted an action to enforce a vendor's lien against the whole of such tract of land, for the amount of such judgment.

Held, on such facts, that the plaintiff is entitled to the lien sought. JUDGMENT.-Extent of Relief Granted. The extent of the relief to be granted by a judgment is restricted to the relief prayed for in the complaint, only in cases where there is no answer.

SAME.-Supreme Court.-Petition for Rehearing.-The fact that the judg ment of the Supreme Court, in a case wherein an answer was filed, is broader than the relief prayed for in the complaint, is not ground for a rehearing.

From the Montgomery Circuit Court.

Humphrey v. Thorn et al.

R. B. F. Peirce, P. S. Kennedy and W. T. Brush, for appellant.

W. A. Tipton, M. D. White and C. M. Travis, for appellees.

BIDDLE, J.-Complaint by appellant, to enforce a vendor's lien against certain lands.

No question is presented upon the pleadings.

Verdict and judgment against the appellant. He appeals to this court, and insists that the verdict is contrary to the evidence and contrary to law, and, by a motion for a new trial, has presented these questions for our consideration.

There is no serious conflict in the evidence; it proves the following facts beyond any fair ground of dispute:

In March, 1873, the appellant sold to George Thorn a certain farm, for the consideration of four thousand eight hundred dollars, four thousand dollars of which was to be paid to the appellant by W. C. Lockhart: for the remaining eight hundred dollars, George Thorn executed his note to the appellant. At the request of Thorn, three-fourths of the land was conveyed by the appellant to Thorn's wife, and the remaining fourth to Thorn himself. Thorn failed to pay the note of of eight hundred dollars, and in May, 1875, the appellant recovered judgment against him for eleven hundred and eleven dollars and nineteen cents, founded upon the note. Thorn became insolvent, and died without having paid any part of the judgment.

There is no dispute in the case, except as to the amount of the judgment accruing upon the note executed by Thorn to the appellant.

We know of no reason, and none has been shown to us, why, upon this state of facts, the appellant is not entitled to his vendor's lien on that part of the farm conveyed to George Thorn, and also on the entire tract sold.

The appellees insist, however, that the sale of the farm

Humphrey v. Thorn et al.

was made to Thorn's wife, and not to Thorn. We think the evidence is overwhelmingly the other way. But it does not seem to us material whether the sale was made to Thorn or his wife; there is no dispute about the fact that one-fourth of the farm was conveyed to Thorn, and, as to that, the vendor would have his lien, although the other three-fourths were conveyed to his wife.

We are not deciding the case upon the weight of evidence; we can not see any evidence against the substantial facts which entitle the appellant to his vendor's lien. It seems to us that the error committed consists in the application of the law to the facts, and not in the insufficiency of the facts to sustain the vendor's lien.

The judgment is reversed, at the costs of the appellee, and the cause remanded, with instructions to sustain the motion for a new trial, and for further proceedings.

ON PETITION FOR A REHEARING.

BIDDLE, J.-The appellee desires a rehearing, upon the ground that the judgment is broader in the opinion than is prayed for in the complaint. The facts averred in the complaint authorize the judgment pronounced in the opinion. The court is confined, in granting relief, to the prayer in the complaint, only in cases where there is no answer; in all other cases any relief may be granted consistent with the complaint. 2 R. S. 1876, p. 188, sec. 380; Colson v. Smith, 9 Ind. 8; Mandlove v. Lewis, 9 Ind. 194; Resor v. Resor, 9 Ind. 347; Hunter v. McCoy, 14 Ind. 528. This case, as an answer was filed, comes within the above rule. The vendor is entitled to his lien on all or any part of the land sold, as between the vendor and the vendees, as well on the part conveyed to Mary C. Thorn as on the part conveyed to George Thorn. The opinion is modified accordingly. He need not assert his lien against all the land unless he wishes to, but the fact that all the land is not included in

j

Tucker et al. v. Gardiner.

the prayer of the complaint affords no ground to support a petition for a rehearing. The petition is overruled.

Opinion filed at May term, 1878.

Petition for a rehearing overruled at November term, 1878.

TUCKER ET AL. v. GARDINER.

PROMISSORY NOTE.-Action before Justice of the Peace.-Practice.-Pleading.-Supreme Court.-On appeal to the Supreme Court, in an action on a promissory note, commenced before a justice of the peace, wherein the note itself was the only cause of action filed, the record contained copies of the note only as they were set out in the justice's transcript and the bill of exceptions containing the evidence.

Held, that an objection, that no cause of action was on file in the circuit court, can not be made for the first time in the Supreme Court. SAME.-Failure of Justice to Transmit Note.-Motion to Dismiss Action.— Where, on appeal of such action to the circuit court, the justice fails to transmit the note with the transcript, the proper practice for the defendant is to move to dismiss the suit for want of a cause of action.

SAME.-Cause of Action.-The note itself is a sufficient cause of action in such a suit.

SUPREME COURT.- Weight of Evidence.-The Supreme Court will not disturb a finding on the mere weight of evidence.

From the Union Circuit Court.

L. H. Stanford, J. E. Tucker and C. L. Seward, for appellants.

J. Yaryan and J. L. Yaryan, for appellee.

Howк, C. J.-The appellee sued the appellants, in this action, before a justice of the peace of Union county.

The only complaint or cause of action filed before the justice by the appellee was a promissory note, of which the following is a copy:

“College CorNER, April 20th, 1866. "One year after date I promise to pay to the order of