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Ratts wholly falled to do; that after the of that question. The demurrer to appellee's expiration of 20 days relator placed the facts complaint should have been sustained. before the township trustee, who duly noti [3] Another question is presented, however, fied Ratts of the probable cost of rebuilding which is certain to arise on a further trial or repairing the partition fence; that Ratts of the issues in dispute, and should here restill refused to repair the same, whereupon ceive consideration. It developed at the trial relator demanded that the trustee cause the below that the agreement between relator east half of such fence to be rebuilt or re- and Lyman E. Hamilton was oral in charpaired, but the trustee wholly failed and reacter, and Ratts claimed to have no notice fused so to act. Prayer for the issuance of a of the same prior to his purchase of the land writ of mandamus to compel such action un- which he now owns. To cover this element der the provisions of section 7379, Burns of the case appellant tendered an instruc1914.

tion in the following language: It is earnestly contended by appellant (1) "A covenant or agreement between two adthat the above statute imposes no mandatory joining landowners concerning a partition fence duty on the trustee where partition fences separating the lands of one from the lands of

the other does not run with the land so as to are divided for maintenance by contract be be binding on the grantee of either, or succestween the adjoining owners; and (2) that, in sive grantees, if such grantees are purchasers any event, no such duty is imposed where without notice of said covenant or agreement. the existence of the alleged contract is in dis- So, if you find from the evidence in this case

that George V. Ratts bad no notice, actual or pute. We deem it unnecessary here to de constructive, at any time, of the existence of termine the first question suggested, but are any such agreement or covenant between Peof the opinion that appellant is correct in his ter M. Hamilton, the relator herein, and Ly

man E. Hamilton, his brother, a remote granlatter contention.

tor of said Ratts, concerning the building, re[1] An action for mandate lies against of pair, and maintenance of the fence line in disficers "to compel the performance of any act pute, then, in that case, I instruct you that he which the law specifically enjoins, or any agreement or covenant did not run with the

was a purchaser without notice, and that said duty resulting from any office, trust, or sta- land as to said Ratts, and your verdict should tion.” Section 1225, Burns 1914. But a com- be for the defendant.' plaint in mandamus, to repel' a demurrer, This instruction was refused by the court, must state a clear legal right on the part of and its action thereon is challenged by appelthe relator to the relief which is sought, and lant's motion for a new trial. show a clear legal duty of defendant to per The relator's lands are located south of form the act demanded. Paddock v. State ex the partition fence, and under the law (secrel., 114 N. E. 217; State ex rel. v. Graham, tion 7378, Burns 1914) the duty rests on him 183 Ind. 53, 55, 108 N. E. 111.

to maintain the east half of that fence. The Ordinarily, mandamus will not lie to en- statute, however, clearly recognizes the right force the performance of contracts, since of adjacent landowners to contract and agree legal and equitable remedies afford adequate among themselves as to what portions of a relief. State ex rel. v. Trustees of Salem partition fence shall be built and kept in reChurch, 114 Ind. 389, 396, 16 N. E. 808; Har- pair by the respective parties in interest, rison School Twp. v. McGregor, 96 Ind. 185; and we have, then, to consider whether the State ex rel. v. Marion Light & Heating Co., contract in this case placed on Ratts the 174 Ind. 622, 624, 92 N. E. 731. This is es-duty of maintaining the east half of the pecially true where the existence of the con- fence in question. tract which forms the basis of the mandatory A covenant running with land, so as to action" is in dispute between the interested make the owner of one subject to the other, parties. Harrison School Twp. v. McGregor, constitutes an easement or interest in said supra, 96 Ind. p. 189.

land, and, as such, it can attach and continue In the present case no duty rests on Ratts, only under such circumstances as are sufas the owner of the land lying north of the ficient to charge the owner of the servient fence in question, to maintain the east half estate at the time of its acquirement with of such fence, unless by virtue of contractual knowledge, actual or constructive, of its es. obligations. Appellee's complaint assumes istence. A parol contract between adjacent the existence of such a contract, but does landowners concerning the maintenance of a not allege that Ratts has conceded its exist- partition fence does not afford such notice, ence, or that the validity thereof has been and the authorities are uniform to the effect adjudicated by a court of competent jurisdic- that such an agreement does not constitute tion. It is shown that Ratts disregarded re a covenant running with the land. Kentucky lator's notice to repair or rebuild and, in the Cent. R. Co. v. Kenney, 82 Ky. 154, 156 ; absence of contrary averments, it must be Kneale v. Price, 29 Mo. App. 227, 231; Guilpresumed that his refusal was in good faith, foos v. N. Y. Cent., etc., R. Co., 69 Hun, 593,

[2] The existence of the contract relied on 594, 23 N. Y. Supp. 925; St. Louis, etc., R. was a question on which Ratts was entitled Co. v. Todd, 36 Ill. 409. to his day in court (State ex rel. v. Jamison, The instruction above set out embodies Auditor, 142 Ind. 679, 683, 42 N. E. 350), and this principle, and should have been given at it cannot be said that the statute here makes appellant's request. If it should appear that the trustee a tribunal for the determination Ratts is, in fact, under no legal obligation

ES.

ATION

to build the east half of the fence in contro-, 6. HUSBAND AND WIFE 333(0)-ALIENA

TION versy, it would follow beyond question that

OF AFFECTIONS–EVIDENCE-ADMISSI.

BILITY. appellant could not be compelled to maintain

In an action for alienation of the husband's the same on his refusal so to do.

affections against his parents, the wife's tesJudgment reversed, with instructions to timony as to what her husband and sister-insustain appellant's demurrer to appellee's the parents with such acts, is inadmissible.

law did, in the absence of evidence connecting complaint, and for further proceedings not

[Ed. Note. For other cases, see Husband and inconsistent herewith.

Wife, Cent. Dig. $ 1124; Dec. Dig. Om333(6).]

7. HUSBAND AND WIFE 333(1)-ALIENALAIRY, C. J., and MYERS, J., concur in TION OF AFFECTIONS-GOOD FAITH. conclusion.

A parent may always in good faith and for the best interests of his child advise and coun

sel with him, and, where advice is given, the (63 Ind. App. 444)

presumption is that it was induced by feelings DAYWITT et al. v. DAYWITT. (No. 9182.) | the child's good.

of the highest parental affection, and only for (Appellate Court of Indiana, Division No. 2. Wife, Cent. Dig. $ 1124; Dec. Dig. Cw333(1).]

(Ed. Note. For other cases, see Husband and Jan, 2, 1917.)

8. EVIDENCE 121(16)-RES GESTÆ-ALIEN1. HUSBAND AND WIFE 334(1)-ALIENA ATION OF AFFECTIONS-Good FAITH. TION OF AFFECTIONS-MEASURE OF DAMAG

In the wife's action against her husband's

parents for alienation of his affections, the par. The services, conjugal affection, and society ents should bave been permitted to testify as of a husband are valuable property, and, in a

a part of the res gestæ that at the time of marsuit by the wife for alienation of the husband's riage of their son and of his wife's illness they affections, the measure of damages is the value took them into their home and paid for medical of the husband of whom she has been deprived. services for the wife, and supplied them with a

dwelling place. [Ed. Note-For other cases, see Husband and Wife, Cent. Dig. $ 1125; Dec. Dig. Om334(1).] Cent. Dig. $ 337; Dec. Dig. Cw121(16).]

[Ed. Note.-For other cases, see Evidence, 2. APPEAL AND ERROR 882(12)-SCOPE OF REVIEW-INVITED ERKOR.

9. EVIDENCE 121(16)-RES GESTÆ-ALIEN.

OF AFFECTIONS-GOOD FAITH. In an action by the wife for alienation of the husband's affections against his parents, the husband's affections, she contended that her

Where, in the wife's suit for alienation of the parents cannot complain of an instruction to sister-in-law and family were permitted to move find for the plaintiff if either of them malicious- into a house supplied by the parents for the purly alienated the husband's affections from his wife, where they requested an instruction of pose of driving her out, the parents should have the same nature, so that error, if any, was in- been permitted to show, as a part of the res

gestre, the arrangement made for occupancy of vited.

the house. (Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $ 3602; Dec. Dig. Om882 Cent. Dig. & 337; Dec. Dig. em121(16).)

[Ed. Note.-For other cases, see Evidence, (12).)

10. TRIAL Cw140(2)—CREDIBILITY OF WIT3. APPEAL AND ERROR @ 216(1)-WAIVER OF OBJECTIONS-INSTRUCTIONS.

NESS-QUESTION FOR JURY. Where ample opportunity was afforded two tions offered as part of the res gesta were made

It is a question for the jury whether declaradefendants to have three forms of verdict subo in good faith, or were manufactured evidence mitted instead of two, one to find for plaintiff for use in the wife's suit for alienation of affec and one for defendants failing to submit form to

tions, find against one only if found guilty, but they made no request therefor at the proper time,

[Ed. Note.-For other cases, see Trial, Cent. they could not complain of an instruction to Dig. § 335; Dec. Dig. Om140(2).) find for the plaintiff if either of them did the 11. EVIDENCE 118"RES GESTÆ." act charged.

The term “res geste" includes the surround(Ed. Note. For other cases, see Appeal and ing facts of a transaction and accompanying Error, Dec. Dig. Om 216(1); Trial, Cent. Dig. declarations as well to explain the act done, or $ 627.]

for showing a motive for acting, although such

declarations aside from this doctrine may be 4. TRIAL em 194(14) - INSTRUCTIONS-INVAD- said to partake of hearsay. ING PROVINCE OF JURY. An instruction in action for alienation of Cent. Dig. &$ 297–302; Dec. Dig. Om118.

(Ed. Note.-- For other cases, see Evidence, husband's affections that, if the jury found that defendants did the acts charged and thereby

For other definitions, see Words and Phrases, alienated the husband's affections, and if it First and Second Series, Res Gestæ.] found that the acts were done purposely without 12. APPEAL AND ERROR 99412)-REVIEW just or probable cause, it could infer that such

CREDIBILITY OF WITNESSES. acts were done maliciously, but that in case it

The question of credibility of witnesses is should so find, whether such inference should be for the jury, and not for the court on appeal. drawn is for the jury to determine from the evidence, is not objectionable as invading the

(Ed. Note.–For other cases. see Appeal and province of the jury to determine whether the Error, Cent. Dig. 88 3902, 3903 ; Dec. Dig.

994(2).] acts were malicious.

(Ed. Note.--For other cases, see Trial, Cent. Appeal from Circuit Court, Clinton CounDig. 8 464; Dec. Dig. Ow194(14).]

ty; Joseph Combs, Judge. 5. TRIAL 260(1)-INSTRUCTIONS.

Action by Helen Daywitt, by her next Refusal of requested instructions substan- friend, Jane Stewart, against Albert Daywitt tially covered by those given affords no ground and others. Judgment for plaintiff, and de for complaint.

[Ed. Note. For other cases, see Trial, Cent. fendants appeal. Reversed, and new trial Dig. & 651; Dec. Dig. Om 260(1).)

granted.

James V. Kent and Thomas M, Ryan, both with this evidence before them the jury was of Frankfort, for appellants. Leonard J. told in the instruction that, if they found for Curtis and Strawn & Robison, all of Frank- the plaintiff, they might, in calculating her fort, for appellee.

damages, consider both loss of service and

loss of companionship. Such terms and exIBACH, P. J. This action was brought pressions embrace the elements which go to by appellee, an infant, and wife of Lawrence make up the value of the husband; conseDaywitt, by her next friend, against appel- quently the instruction given contained sublants, who were the parents of said Law- stantially all that was included in the iurence, to recover damages because they had struction refused, although not so clearly willfully, maliciously, and wrongfully alien- stated. ated the affection of her husband, and had It is also contended that there was error maliciously and wrongfully induced him to in the giving of instruction No. 3 of the drive her from their home, and wrongfully court's own motion. This instruction is as persuaded him to abandon her and their follows: children without support.

"In order for the plaintiff to recover in this The questions in the record presented for cause, it must be shown by the evidence that the our determination relate to the court's re- defendants, or one of them, alienated the affec

tions of the plaintiff's husband from her, or by fusal to give to the jury certain instructions some acts of theirs caused the separation of the requested by appellants, aud in giving others plaintiff and her husband. And it must also be on the court's own motion, for admitting ir- shown by the evidence that the defendant's con

duct in so doing was malicious, or that the acts relevant testimony, and for excluding com-causing the said alienation of affections, or seppetent testimony.

aration, were done through malice. And, if you Appellants first contend that instruction 11 find from the evidence that the defendants, or requested by them should have been given, tions of plaintiff's husband, and did thereby

either of them, did cause the alienation of affecand is as follows:

cause the plaintiff and her husband to separate, "You are instructed that the damages in a case then it is a question of fact for you to deterof this character is to be measured by the value mine from all of the evidence given in the cause of the husband of whom the wife has been de- whether or not the acts of the defendant, or prived, and if you should find for the plaintiff defendants, were done maliciously, or were done in this case, you would have the right to con- in good faith for the best interests of their son. sider, in determining the question of damages, When a father and mother are charged with the the treatment of the plaintiff by her husband alienation of a husband's affection, the quo during their marital life and before the aliena- animo is the important consideration; that is, tion of the husband's affections, if such aliena- from what motive did the parents act? Was it tion has been shown by the evidence, and you malicious, or was it inspired by a proper regard may also consider in that connection the hap for the welfare and happiness of the child. The piness or lack of happiness which prevailed in reciprocal obligations of parent and child last the home of the plaintiff and her husband before through life and the duty of discharging them such alienation, and any other facts shown by does not cease by the marriage of the child. the evidence which show the domestic relations When trouble and disagreements arise between of the plaintiff and her said husband prior to the married pair, the most natural prompting of such alienation, if you find in fact that such the child direct it to find solace and advice unalienation has occurred."

der the parental roof. All legitimate presump[1] Without approving the form of this act only for the best interests of the child. The

tions in such cases must be that the parent will instruction, we concur in the legal proposi. law recognizes the right of the parent in such tion involved that the services, conjugal af cases to advise the son or daughter, and when fection, and society of a husband is valuable in a separation, the act does not

give the injured

such advice is given in good faith, and results property, and in a suit by the wife for the party a right of action. In such a case the moalienation of her husband's affections the tives of the parents are presumed to be good measure of damages is the value of the hus- until the contrary is made to appear. band of whom she has been deprived.

sumption of good faith on the part of the par

ents is like any other presumption that may who demeans himself toward his wife as a arise, and it may always be overcome by evidutiful, kind, and loving husband is much dence to the contrary. So it is for you to demore valuable to her than one who has been termine from the evidence in this cause wheth

er or not the defendants or either of them did cruel, indifferent, and neglectful of her. cause the alienation or separation charged in And it is evident that the trial court consid- the complaint, and, if so, whether or not their ered an instruction embodying such legal motive in so doing was malicious. If you find

from the evidence that the defendants or either proposition proper in view of the facts of the of them did the acts charged and with the recase; for on its own motion the following sult as charged, and that the acts were done instruction was given:

through malice, then your verdict should be for “In case you find for the plaintiff you may either of them did cause the alienation or ser

the plaintiff. But unless you find that they or take into consideration what, if any, damages aration charged, and that it was done through she has sustained on account of the loss, if malice, then you should find for the defendants." any, of the services of her husband; also you may consider, if the evidence shows, what, if [2] The next to the last sentence of this any, damages she has sustained on account of the loss, if the evidence shows, of the society, instruction is the portion particularly criticompanionship, affection, and protection of her cized, and the objection is that the jury is husband."

not instructed as to a finding against the deThe record discloses that the appellants fendants separately, and that only two forms were permitted to show the character of the of verdict were submitted, one a finding for home life of plaintiff and her husband, and the plaintiff, and the other a finding for the

This pre

man

defendants. In other words, appellants con [5] Other instructions tendered by appel. tend that the instruction directed a verdict lants were refused, but there is no ground against both defendants if the proof showed for complaint, for the reason that the court only one of them guilty. The charge sub- fully covered them by other instructions ject to this criticism, but the state of the given. entire record shows that its giving was [6] Objection is made to the action of the harmless, and that appellants are in no posi- court in admitting in evidence, over appeltion to ask for a reversal because it was lants' objection, certain acts of appellee's given.

husband on the day of, and the day precedThe record shows that an instruction ten- ing their separation, also the conduct of her dered by appellants and given to the jury sister-in-law toward her on the same days, was of the same nature, so that, even if all of which acts were done in the absence of there was error in the form of the instruc- appellants, and also in admitting in evidence tion now contended for, it was an invited over objection the following statement made error, and appellants must be charged with by appellee's husband to appellee's mother in it, and they cannot now complain. Domestic her presence: Block Coal Co. v. De Armey, 179 Ind. 592, "My father says if you don't take the woman 100 N. E. 675, 102 N. E. 99.

and kids and get off the place he will kick you

off.” [3] Again, ample opportunity was afforded appellants to have three forms of verdict

We are not unmindful of our statute and submitted to the jury instead of two, and, the universal rule which requires the pronot having made such request at the proper

tection of marital communications, but we time, it seems to us in view of the entire do not consider that the class of evidence record that such contention is without merit objected to falls within the letter or spirit at this time.

of the statute or within the rule that conAppellants also condemn instruction 4 giv. fidential communications between husband en on the court's own motion. In this in- and wife are not admissible in evidence in struction the court said:

favor of the wife in a suit by her against the "Malice is defined as a disposition or intent parents of her husband for the alleged aliento injure another or others for the gratification ation of his affections. Neither does it of anger, jealousy, hatred, revenge, or the like; fall within the rule that conversations beactive malevolence; a deliberate intention to do tween persons not parties to the action, had evil either with or without personal ill will; a willfully framed design to do another an injury in the absence of the parties against whom If you find that the defendants or either of the same were introduced, are not competent them did the acts charged in the complaint, and evidence. thereby caused the alienation or separation as alleged, and if you find that the said acts were

To support one of the material averments done purposely and without just or probable of the complaint it was essential for appelcause, then you may infer that such acts were lee to show the loss of the affections of her done maliciously. But in case you so find husband and that she was driven from her whether or not such inference should be drawn from the acts of the defendants is for you to home on account thereof. The evidence obdetermine from the evidence in this cause.” jected to was competent for that purpose and

[4] The objection raised is that the court none other, and to make her case it was necinvaded the province of the jury, and it is essary for the appellee to go further and argued that it was for the jury to determine show that the cause of their separation was not only whether or not it should draw the occasioned by the misconduct of the hus. inference of malice, but whether or not any band's parents. given state of facts would warrant such in But what the husband and sister-in-law ference. In this instruction, in defining mal. did, in the absence of other evidence, in some ice, the court followed the instruction used manner connecting the appellants with it, by the court and approved by this court in would have no probative value against apthe case of Kelso v. Kelso, 43 Ind. App. 115, pellants, and would be no proof to support 86 N. E. 1001. The jury is there informed, that issue. The fact that appellee's hus. if they found that the wrongful acts charged band reported that his father had made a in the complaint were committed as charged, threatening statement, which report may and were done purposely and without prob- have had some influence on appellee's conable cause, then they might infer malice, but duct, could not be taken as any evidence that in any event it was for them to determine the parents had actually made such a state from all of the evidence whether such infer- ment, and would be no proof that appellants' ence should be drawn.

conduct occasioned the withdrawal of her There is no direction for them to so find; husband's affections. no such words as "must" or "ought” are It is further contended that the court errused. There could have been no objection ed in refusing to admit in evidence declaraurged if the court had simply informed the tions of the appellants as a part of the res jury that malice need not be proven by direct geste showing the absence of malice. Our evidence, but it may be inferred from all the courts have many times held that declaraevidence introduced, and we believe that in tions made at the time of the transaction ineffect is what the jury were told and that quired about, and which are a part of the

ford, 58 Ind. App. 665, 107 N. E. 308; Doe 282, 283, 10 Am. Rep. 22, this language is V. Reagan, 5 Blackf. 217, 33 Am. Dec. 466; used: Lockwood . Rose, 125 Ind. 588, 595, 25 N. "It is well established

that in all E. 710; Bingham v. Walk, 128 Ind. 164, 172, cases, civil or criminal, where evidence of an act 27 N. E. 483.

done by a party is admissible, bis declarations,

made at the time, having a tendency to eluci[7] In all cases like the present malice date, explain, or give character to the act, are must be shown; the quo animo is the chief also admissible. They are a part of the transsubject of inquiry. A parent may always action, and for that reason are admissible; and in good faith and for the best interests of of the declaration is concerned, whether it be

it makes no difference, so far as the admissibility his child advise and counsel with him, and, in favor of or against the party making it.” where advice is given, the presumption is that it was induced by feelings of the high

If the money was given the husband, it was est parental affection and only for the child's competent for the purpose of showing the abgood. Reed v. Reed, 6 Ind. App. 317, 33 N. sence of malice that it was furnished for the E. 638, 51 Am, St. Rep. 310.

express benefit of appellee and to relieve her

wants. [8] Appellee has been permitted to show for her by appellants on account of her seri

If large sums of money were paid acts of disapproval of her marriage with ap. ous illness, it was competent to show the abpellants' son when they were informed that such marriage was a necessity, but it was that he had informed appellants of the seri

sence of malice by proving by the physician shown that shortly thereafter they both lived with appellants in their home for some could only be restored through an operation.

ous condition of appellee, and that her health considerable time, and were living there that the fact that appellants received inforwhen the baby was born. Appellant then of- mation of appellee's critical condition and fered to show that when their son, who was that such information caused him to act was only 18 years of age and was without money as much a part of the case as the fact that or work, requested permission to bring his she was brought to appellant's home, there wife to their home that appellants told him operated upon, and all expenses paid by aphe could and they might live with them as pellants, and this is especially true, since their children, and when he was 21 years of appellee insisted that she was forced to reage the father would help him to get a start turn to appellants' farm against her will. on the farm.

[9] Again, appellee strongly contended that There was evidence that appellants had at appellants allowed their daughter to move different times shortly after his marriage into a part of the house occupied by herself given their son money. They offered to show and husband for the purpose of driving her that this was done on the request of their son out. The arrangement made between the and because he had reported to them that parties concerning the occupancy of the house appellee was sick; that he was out of work and the conduct of the farm were also a and needed the money to take care of her. part of the res gestæ, and it should have They also offered to show that immediately been shown to disprove malice. after appellee's baby was born a serious oper [10] There are many kindred declarations ation became necessary on account of lacer- which should not have been excluded, the ations due to childbirth, and that the doctor jury should have received them, and it was came to them and informed them that an for them to say whether the declarations of. operation was necessary, and that such doc- fered as a part of the res gesta were made tor was then instructed to prepare for and in good faith or were merely manufactured operate upon appellee. This offer was refus- evidence to be used in their own behalf. ed, but the court did allow the fact to be It has been held that "it is no objection to shown that appellant had paid all the ex- such declarations that they are self-serving, penses occasioned by appellee's sickness. if they are part of the res gestæ.” McCon

Appellee introduced evidence that while nell v. Hannah, 96 Ind. 105. she and her husband lived on the farm, and [11] The term "res gestæ" includes the while appellants were living on an adjoining surrounding facts of a transaction and acfarın, appellants permitted their daughter companying declarations as well to explain and son-in-law to move into the same house the act done, or for showing a motive for actoccupied by .appellee and her husband. Ap-ing, although such declarations, aside from pellants offered to prove, for the purpose of this doctrine, may be said to partake of showing absence of malice, a contract made hearsay. 24 Am. & Eng. Ency. of Law (2d with their daughter and her husband, at a Ed.) 662; 34 Cyc. 1642; Porter v. Waltz, 108 time when it was believed that appellee had Ind. 46, 8 N. E. 705, and cases cited; Carr finally left her husband, and appellee's hus. v. State, 43 Ark. 99, 103. band, concerning the occupancy of the house

In the case last cited the rule is announced and the operation of the farm.

in the following language: Since the question of good faith controls in “Circumstances and declarations which are these cases, we believe that the proof of contemporaneous with the main fact under confered was a part of the res gestæ and should sideration or so nearly related to it as to illus

trate its character and the state of mind, sentihave gone to the jury.

ments, or dispositions of the actors are parts In the case of Hamilton v. State, 36 Ind. of the res gesta."

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