ing for the sale of the following described real estate in Carroll county, Ind., to wit: "The northwest fractional quarter of section thirty-one, township twenty-four north, range one west, containing 14712/100 acres of land." He made the appellants, Abner T. Bowen, John A. Cartwright, and Edward W. Bowen, a firm doing business under the name and style of A. T. Bowen & Co., and a firm doing business under the name and style of the Citizens' Bank, defendants to his petition; alleging in his petition that Harvey J. Ball had executed a mortgage to the Citizens' Bank of Delphi, Ind., bearing date of the 4th day of October, 1892, for the sum of $1,500, with 8 per cent. interest; that the same became due on the 4th day of September, 1893, and one mortgage executed by Harvey J. Ball and wife to the said A. T. Bowen & Co., bearing date March 2, 1893; that the said mortgage executed by Harvey J. Ball and wife to said A. T. Bowen & Co. does not set forth the amount secured by said mortgage, and your petitioner does not know what said mortgage secures; that the said Citizens' Bank and the said A. T. Bowen & Co. also held a large amount of notes which were assigned to them by the said Harvey J. Ball as collateral security. And he makes the said A. T. Bowen & Co.'s Bank and the Citizens' Bank parties hereto, that the amount of their liens may be ascertained and fixed by the court; and that he be authorized to pay the amount found due the said Citizens' Bank and the said A. T. Bowen & Co., out of the proceeds of said sale. Other lien holders were also made parties, and the petitioner asks the court that the defendants, including the appellants, be required to answer the petition, and to set up the amounts of their liens. The appellants appeared, and filed answer. The substance of the answer is: That the appellants held several notes signed by the said Harvey J. Ball, with others: One for $1,434.98, dated February 21, 1893, due one month after date, upon which have been paid different amounts; two notes for $200, each dated July 1, 1889, due on the 1st of January, after date, which had been assigned in writing to the appellants; one note dated March 10, 1893, due two months after date, for $840.60, with interest; one note dated December 22, 1890, due one year after date, for $461, with interest, at the rate of 8 per cent.; one note dated March 12, 1890, due seven months after date, for $147.87, with interest; one note dated March 10, 1893, due in three months after date, for $1,000, with interest, upon which some payments had been made; one note dated November 19, 1888, due in nine months from date, for $100, assigned to the appellants in writing, with attorney's fees; one note dated January 2, 1892, due on the 1st day of September, 1892, for $35, with interest, and assigned to the appellants; one note dated January 2, 1892, due the 1st day of January,

1893, for $35, with interest, and assigned to the appellants. That all of these notes were secured by a mortgage upon the land described in the petition, executed by the said Harvey J. Ball and Eunice A. Ball, his wife, on the 2d day of March, 1893. The description in the mortgage is as follows: "Harvey J. Ball and Eunice A. Ball, his wife, of Carroll county, state of Indiana, mortgage and warrant to A. T. Bowen & Company, of Carroll county, in the state of Indiana, the following real estate, in Carroll county, in the state of Indiana, to wit: [describing the land;] and to secure any notes that may be given for a renewal of said notes, or any part thereof, or for interest thereon, and any future advances or other indebtedness due, or that may hereafter become due, the mortgagees or either of them, from the mortgagors or either of them, to the amount of $10,000.00." The answer avers that the appellants admit they have and hold a lien on the real estate described in said petitioner's petition in the sum of $3,999.90; that the same consists of promissory notes made, executed, and delivered by the said Harvey J. Ball upon different occasions and at different times to the said A. T. Bowen & Co., and upon certain notes that were executed by the said Harvey J. Ball to different parties, and assigned by said parties, in writing, to the said A. T. Bowen & Co., and upon certain other notes which were by the said Ball assigned, in writing, to the said appellant herein, all of which notes are long since due, and remain wholly unpaid. That copies of each of said notes and the mortgages securing the same are each filed with and made a part of the answer, and that said notes were given for renewal of certain notes which were surrendered up at the time of the giving, and assigning the notes to said Bowen by said Ball, and for other indebtedness due said Bowen, and for advancements made to said Ball. The appellants aver that said mortgage was duly recorded on the 30th day of March, 1893, in the records of the recorder's office of Carroll county, Ind.; that said notes are secured by said mortgage. And the appellants ask in their answer that their lien be ascertained and protected in the decree ordering the sale of the property, and that the same be paid out of the proceeds of the sale. The appellee, Ratcliff, filed a demurrer to the appellants' answer, which was sustained by the court, to which ruling the appellants reserved an exception. The court thereupon rendered judgment against appellants for costs, and ordered that said real estate be sold by said assignee.

The objection urged to this answer of appellants is that there is no sufficient description of the debt secured by the mortgage. A mortgage, to be effective, must in some way describe and identify the indebtedness it is intended to secure. Philbrooks v. McEwen, 29 Ind. 347; Brick v. Scott, 47 Ind. 299. Lit

eral accuracy in describing the debt secured by the mortgage is not required, but the description of the debt must be correct, so far as it goes, and full enough to direct attention to the sources of correct information in regard to it, and be such as not to mislead or deceive, as to the nature or amount of it, by the language used. New v. Sailors, 114 Ind. 410, 16 N. E. 609; Ogborn v. Eliason, 77 Ind. 395; Insurance Co. v. Finch, 84 Ind. 305; 1 Jones, Mortg. §§ 70, 343. In New v. Sailors, supra, this court said: "It is essential that the character of the debt and the extent of the incumbrance should be defined with such reasonable certainty as to preclude the parties from substituting other debts than those described, thereby making the mortgage a mere cover for the perpetration of fraud upon creditors. Pettibone v. Griswold, 4 Conn. 158." An examination of the clause of the mortgage describing the indebtedness secured leads to the conclusion that the description of the indebtedness is not complete; that something is omitted. The clause is: "And to secure any notes that may be given for renewal of said notes, or any part thereof, or for any interest thereon," etc. The notes referred to by the words "said notes" are not described in the mortgage, and are therefore not secured thereby. That being the case, no notes given in renewal thereof would be secured by the mortgage held by appellants. Under the allegations in the answer, the words "or other indebtedness due, or that may hereafter become due," etc., must be held to mean indebtedness other than future advances, or indebtedness evidenced by promissory notes.

The mortgage, thus construed, in the light of the allegations in the answer, secures no indebtedness which was evidenced by promissory notes when the mortgage was executed. There are, however, two notes filed with and made a part of the answer, dated March 10, 1893; one calling for $840.60, and the other for $1,000. These notes were given after the mortgage was executed. The answer alleges that the notes filed therewith, and made a part thereof, "were given for advancements made to said Ball." This allegation could only apply to the two notes mentioned; and if they were given for advances made after the execution of the mortgage, and on the faith thereof, they are secured by it, but, if given for or in renewal of indebtedness not secured by the mortgage, they are not secured by it. Under the allegations of the answer, none of the notes filed with and made a part thereof come fairly within the terms used in the mortgage except the two described. How much this could be changed by averment and explained by extraneous evidence we need not and do not decide. New v. Sailors, supra. think the two notes dated March 10, 1893, were sufficiently described in the mortgage, aided by the allegations in the answer, to render said answer good against the demur

We

rer.

Whether the two notes named are secured by the mortgage can be determined from the evidence when the cause is tried. The rule in this class of cases is that the mortgagee is entitled to recover only so much as he shows affirmatively is due. Any doubt or uncertainty should operate against the mortgagee, and not in his favor. Kline v. McGuckin, 25 N. J. Eq. 433; 1 Jones, Mortg. § 378.

For the reasons given, the court erred in sustaining the demurrer to appellants' answer. Judgment reversed, with instructions to overrule the demurrer to appellants' answer, and for further proceedings in accordance with this opinion.

1. In an action for support by a wife against her husband, where the complaint did not state what amount would be necessary to the maintenance of the plaintiff and her children, as required by section 6978, 3 Rev. St. 1894 (section 5133, Rev. St. 1881), it was fatally defective.

2. The court overruled a demurrer to a complaint, but sustained a motion requiring the plaintiff to make the complaint more specific, and, according to the statement of the clerk in the transcript, the plaintiff complied; but the motion and ruling thereon were not made a part of the record by bill of exceptions, nor did the transcript recite what was inserted in the complaint to make it more specific. Held, that the motion and the ruling thereon were no part of the record, and, the record failing to show that any change was made in the complaint, such ruling was reversible error.

3. Appellant must present a record on appeal that affirmatively shows that the error he complains of has been committed.

Appeal from circuit court, Ripley county; Thomas C. Batchelor, Judge.

Action by Mary J. Arnold against Robert F. Arnold, her husband. From a judgment for plaintiff, defendant appeals. Reversed.

Saml. M. Jones, for appellant. J. O. Cravens, for appellee.

MCCABE, C. J. The appellee sued the appellant, as her husband, for support, under the statute, on the ground that he had abandoned her without making any provision for the support of herself, or herself and children. The trial court overruled a demurrer to the complaint, and sustained the appellee's motion to strike out the second paragraph of appellant's cross complaint. The issues framed were tried by the court, resulting in a finding and judgment for the appellee. A part of the decree was to the effect that, on failure of appellant to pay or replevy the judgment, the specific personal and real property mentioned in the complaint was ordered to be sold on an order of sale issued upon the judgment.

The

only proper assignments of error are (1) that the circuit court erred in overruling the demurrer to the complaint; (2) in sustaining appellee's motion to strike out appellant's cross complaint; (3) in overruling appellant's motion for a new trial; and (4) in overruling appellant's motion in arrest of judgment.

The action was prosecuted under the act of 1881 (3 Burns' Rev. St. 1894, §§ 6977-6982; Rev. St. 1881, §§ 5132-5137). The complaint showed that the marriage was a second one for both parties, and that the children involved were the children by the appellee's former husband. Sections 6978, 6979, 3 Rev. St. 1894 (sections 5133, 5134, Rev. St. 1881), are the only ones material to the controversy here. The latter section provides that: "The court may make such orders and allowances in the nature of alimony out of the husband's estate, as may seem just and equitable and for the best interests of such wife and children; and the court may also order the real or personal property of such husband, or both, or any part thereof to be sold to the highest bidder for cash on time upon such terms and in such manner, and with such reasonable notice of sale as the court may direct; and the court may also order the leasing of the real estate, or a part thereof, and direct that the rents thereof be applied to such allowances of alimony." The objection urged to the complaint is that it in no way states what amount will be necessary to the maintenance of the appellee, or of herself and her children. Section 6978, 3 Rev. St. 1894 (section 5133, Rev. St. 1881), provides, among other things, that "the complaint shall also state the circumstances and mode of life of the husband and wife, and the sum necessary for the support of the wife and children if there be any." The action is purely statutory, and could not be maintained at common law, though the statute makes the action partake of the nature of a suit in equity. Harding v. Harding, 144 Ill. 588, 32 N. E. 206. The action having for its only foundation, in law, the statute, there must be at least a reasonably fair attempt in the complaint to bring the case within the terms and conditions of the statute. No one would suppose that in a complaint of this sort, under this statute, a statement of the circumstances and mode of life of the husband and wife could be omitted without making the complaint fatally defective. These elements are made important, by the statute, to a judicial determination of the merits of the action, and the same language in the statute imperatively requires the complaint to state the sum necessary for support, etc. The sum necessary is a question of fact, and that fact the statute requires to be stated in the complaint. In Boys v. Simmons, 72 Ind., at page 599, this court said: "The appellant's suit is purely a statutory proceeding, as, without the statute, he surely could not

maintain such suit. In such a case the appellant must state such facts in his complaint as would clearly entitle him to the statutory remedy. * For, in a suit au

thorized by and brought under the provisions of a statute which gives a certain and specific remedy in a given case, the facts stated in the complaint must be sufficient to bring the case within the purview of the statute, and to entitle the complaining party to the specific remedy therein provided." In Storms v. Stevens, 104 Ind., at pages 47, 48, 3 N. E. 401, this court said: "Where a statute creates a new right, and prescribes a mode of enforcing it, that mode must be pursued, to the exclusion of all other remedies. Such has been the settled law in this state for more than sixty years, and such is the law elsewhere. Lang v. Scott, 1 Blackf. 405; Butler v. State, 6 Ind. 165; Martin v. West, 7 Ind. 657; McCormack v. Railroad Co., 9 Ind. 283; Toney v. Johnson, 26 Ind. 382; 1 Wait, Act. & Def. p. 42." It is true, the statute in question is a remedial one, and entitled to a liberal construction, with a view to advance the remedy. Harding v. Harding, supra; Tousey v. Bell, 23 Ind. 423; Draining Co. v. Norris, 37 Ind. 424; Turnipseed v. Schaeffer, 76 Ga. 109; Railway Co. v. De Busk, 12 Colo. 294, 20 Pac. 752. But still there must be a complaint filed, stating some facts, before relief under the statute can be afforded to any party pursuant to its provisions. And the section from which we have quoted also provides that: "Such complaint shall set forth the marriage of the parties, the name and ages of the children living with or supported by the wife, and at least one of the grounds of action as specified in the preceding section; and it | shall also describe, as specifically as possible, the property of the defendant husband, real or personal, in the state of Indiana, and allege the probable value thereof. Where the co-defendant or defendants are indebted in any manner to the husband, or have any property rights, credits or choses in action of the husband in their possession or under their control, such fact shall be stated, and the probable amount of such indebtedness or the value of such rights, credits, choses in action or property." And then follows the provision already quoted, requiring the complaint to state the sum necessary for the support of the wife and children, if there be any. The grounds of action specified in the preceding section, at least one of which is required to be stated in the complaint, are: "(1) When the husband shall have deserted his wife or his wife and children without cause, not leaving her or them sufficient provision for their support. (2) When the husband shall have been convicted of a felony and imprisoned in the state prison, not leaving his wife or his wife and children sufficient provision for her or their support. (3) When the husband is an habitual drunkard and by rea

son thereof becomes incapacitated or neglects to provide for his family, and (4) when a married man renounces the marriage covenant, or refuses to live with his wife in the conjugal relation according to the true intent and meaning of the institution of marriage." Some one of these causes, together with each and every one of the other facts specified in the section quoted, are required by the act to be stated in the complaint, in order to maintain the action. If the courts

can dispense with one of the specific facts required outside of the above-named causes, they can dispense with all of them. When the objection is taken by demurrer, as was the case here, they cannot dispense with the allegation of the sum necessary for the support, etc. See Carr v. Carr, 6 Ind. App. 377, 33 N. E. 805.

But it is contended by the appellee that the demurrer was not overruled to the present complaint; the same, as is claimed, having been amended after the ruling on the demurrer. After the demurrer was overruled the appellant moved the court to require the appellee to make the complaint more specific, which motion was sustained; and the appellee complied with that requirement, as is stated in the transcript by the clerk. But the motion and ruling thereon are not made a part of the record by bill of exceptions, nor do we find even a recital in the transcript what was inserted in the complaint to make it more specific. It is only where all the essential facts necessary to show the ground upon which a ruling of the trial court was made that no bill of exceptions is necessary to present such ruling for review on appeal. State v. Cooper, 103 Ind. 75, 2 N. E. 238. This rule can only be applied to cases where the error, if error occurred, is apparent upon looking at what properly belongs to the record without the aid of a bill of exceptions. In speaking of matters which appear on the record, only such things as pertain to the record legally, in the absence of a bill of exceptions, are meant. Scotten v. Divilbiss, 60 Ind. 37; Lippman v. City of South Bend, 84 Ind. 276; Hancock v. Fleming, 85 Ind. 571. Collateral motions, such as the one here, together with the action of the court thereon, must be made a part of the record by a bill of exceptions, or the same will form no part of the record. Turnpike Co. v. Sidener, 40 Ind. 424; Scotten v. Divilbiss, supra; Boil ▼. Simms, 60 Ind. 162; School Town of Princeton v. Gebhart, 61 Ind. 187; Myers v. Conway, 62 Ind. 474; Merritt v. Cobb, 17 Ind. 314; Board v. Montgomery, 109 Ind. 69, 9 N. E. 590. There is therefore nothing before us but the complaint, and the action of the trial court in sustaining a demurrer thereto for want of sufficient facts as to the question arising upon that ruling. The record failing to show that any change was made in the complaint. material or immaterial, after overruling the demurrer there

to, it follows from what we have said that such ruling was reversible error. If we are wrong in this, and it be true that it was the duty of the appellant to show affirmatively that the complaint demurred to was the same complaint set out in the record, and that he has not done so, still the motion in arrest of judgment raised the question of the sufficiency of the complaint, as it now appears in the record, and the overruling of that motion is assigned for error. It is established law that appellant must bring a record here that affirmatively shows that the error he complains of has been committed.

As the questions arising on the other errors assigned may not arise on another trial, we deem it unnecessary to consider them. The judgment is reversed, and the cause remanded, with instructions to sustain the demurrer to the complaint.

(140 Ind. 179)

STROUP v. STROUP et al. (Supreme Court of Indiana. Feb. 19, 1895.) VALIDITY OF TRUST DEED-RESERVATION OF CON. TROL IN BENEFICIARY-TESTAMENTARY CONVEYANCE-FRAUD ON DOWER RIGHTS-EVIDENCE.

1. When fraud is relied on in a pleading, the facts constituting it must be alleged.

2. A complaint alleging that plaintiff's de ceased husband fraudulently sold land owned by him, and enticed plaintiff to join in the conveyance, and with the proceeds of the sale purchased the land in suit, and without plaintiff's knowledge, and with intent to defraud her of an inchoate dower interest therein, caused the land to be conveyed to their son, the defendant, in trust for the husband, who retained the power of disposition over it, with a life estate in him, and remainder to his children, properly presents the question of the validity of the transaction as affecting plaintiff's interests in the land purchased.

3. Under Rev. St. 1894, § 3403 (Rev. St. 1881, § 2981), providing that a conveyance of land to a trustee whose title is merely nominal, and who has no power of disposition or management, shall be deemed a direct conveyance to the beneficiary, where a father purchased land, and caused it to be conveyed to his son, subject to a life estate in the father, who retained the power of disposition and management, and reserved the proceeds of any sale which he might direct to his own use, the land to go upon his death to his children, the trust being void, the title to the land vested in the father.

4. Where a grantor conveyed land to his son, reserving a life estate in and the power of disposition and management over it, and the proceeds of any sale of it to his own use, and upon his death, if the land remained unsold, it was to go to his children, the conveyance operates as a will, such being the manifest intention of the grantor.

5. Where it appears from a conveyance that the estate conveyed is reserved to the grantor during life, and that the deed is not to take effect till his death, it will be construed to be testamentary in its character.

6. Where a husband purchases land, and causes it to be conveyed in trust for himself to another, reserving a life estate in it and the power of disposition over it to his own use, he has an equitable interest, to which dower may attach.

7. Where one, intending to defeat his wife's dower, has land purchased by him conveyed to another, but secures to himself the full use and disposition thereof, the conveyance being in fraud of the wife, she may, before or after the husband's death, recover that part of the land which would have fallen to her as dower had the husband been actually seised.

Appeal from circuit court, St. Joseph county; Daniel Noyes, Judge.

Action by Fianna Stroup against Daniel F. Stroup and others to recover one-third in fee of lands purchased by her husband, and held in trust for him at the time of his death. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Walter Funk and A. L. Brick, for appellant. A. Anderson and L. Hubbard, for appellees.

HACKNEY, J. In the year 1881, Daniel B. Stroup and the appellant were husband and wife, and that relation continued until he died, intestate, in the year 1892, leaving, him surviving, the appellant and the appellees, as his widow and only heirs at law. In January, 1881, he owned in fee simple a tract of land in St. Joseph county, which he sold for $6,400, his wife, the appellant, joining in the conveyance. Later, and in the same month, he purchased another tract of land, in said county, for the consideration of $12,943.73, which sum was paid by him, though $3,940.73 was paid of the said purchase and from the earnings of said tract. The deed conveying the tract so purchased was, at his direction, so made as to convey the fee to the appellee Daniel F. Stroup, subject to a life estate in said Daniel B. Stroup, and "to have and to hold the same unto the said Daniel F. Stroup, and his executors, to his and their issue, forever, upon the trust following, that is to say: The said Daniel F. Stroup and his heirs and executors in trust are, on the commencement of said trust estate, to enter on and take possession of and rent or farm said land to the best possible advantage, and, as soon as can be consistently done, shall sell and convey said land to such person or persons, and on such terms, and for such price or prices, as to him and them shall seem meet, either at public or private sale, with or without notice thereof; and the net proceeds of such sale shall first pay the widow of said Daniel B. Stroup, if he leaves one surviving him, the sum of one thousand dollars ($1,000) dollars, and the residue of said net proceeds he or they shall divide equally among such children of said Daniel B. Stroup (including said Daniel F. Stroup, if he be then living) as may be living at the time of such distribution: provided that if either be dead, leaving them issue surviving them, the issue of such deceased child shall take such decedent's share: provided, however, that if, at any time during the life of Daniel B. Stroup, he, the said Daniel B. Stroup, shall request the said trustee and shall join in a deed therefor, the said v.39N.E.no.12-55

trustee shall sell and convey said land in fee to such person or persons and upon such terms and uses as the said Daniel B. Stroup shall direct, and shall render and pay over and deliver to such Daniel B. Stroup all money and securities received on such sale." The appellant, claiming as widow the onethird, in fee, of the lands so purchased, sued the appellees in three paragraphs of complaint, seeking to quiet title against the claim of the appellees as to said interest. Each paragraph alleges the foregoing facts and the additional facts that the said Daniel B. Stroup, in causing said lands so purchased to be conveyed to Daniel F. Stroup, desired and intended to cut off any claim of the appellant to an interest in said lands as his wife and as his widow, and that said lands, at the death of her husband, were of the value of $15,000. The first paragraph alleged that, with this purpose in view, the decedent fraudulently sold said tract, so first owned by him, and enticed the appellant to join in the conveyance thereof and with the same purpose, and, intending to defraud the appellant of an inchoate interest in said lands so purchased, caused the same to be conveyed as aforesaid, without her knowledge or consent. The second paragraph differs from the first in that it does not charge a fraudulent intent in selling said tract so first owned by the decedent. The third paragraph differs from the second only in its allegation that she signed the deed to the land conveyed by her husband "with the understanding and expectation from her husband, through his representation at the time, that he would buy other real estate with the * proceeds of the sale of the same, in which she would have her one-third interest." To these several paragraphs of complaint the circuit court sustained the appellees' demurrer for want of sufficient facts, and this ruling is the question for review.

In support of the ruling of the lower court, appellees' learned counsel insist that there are no allegations of actual or positive fraud, without which the complaint should be held insufficient; that the suit does not attack the conveyance in which the appellant joined, and alleges no active fraud in procuring her to so join, and, in consequence, the act of purchasing other lands, and causing them to be conveyed as alleged, was but the disposition of personal property, upon which there was no legal restraint by an interest of the appellant in lieu of dower; and that, the husband never having been seised of the lands in suit, the wife could have no inchoate interest therein, and would take nothing therefrom as widow. It is true that, ordinarily, the facts constituting the alleged fraud must be pleaded, and are not supplied by epithets. Curry v. Keyser, 30 Ind. 214; Bodkin v. Merit, 102 Ind. 293, 1 N. E. 625. This rule would defeat the allegation of fraudulent enticement to the appellant to join in the conveyance, but if it can be maintained that an invest