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higher offense bars a prosecution for all in- , 3. CRIMINAL LAW Cm1130(3) APPEAL cluded offenses. State V. Hattabough, 66


TRIAL Good FAITH SETTING OUT SUBInd. 223, and cases cited.

STANCE. [4] In the course of the opinion in the case Where the substance of accused's motion for of Fritz v. State, supra, the court says: new trial is set out in his brief, an effort being

“When the state prosecutes and convicts for made in good faith to comply with the Supreme the affray, she assumes that the act or acts com- Court rules requiring such motion to be set out, Initted by the defendant constituted that of the question presented will be considered and fense; and, having had the conviction, she can

determined. not be heard to say that the same act or acts (Ed. Note.-For other cases, see Criminal constituted another and different misdemeanor, Law, Cent. Dig. 88 2965, 2968; Dec. Dig. and obtain another conviction therefor." 1130(3).]

A single act may constitute two or more 4. WEAPONS Om14 "DRAWING DANGEROUS distinct and separate offenses; and if the WEAPON''-ELEMENTS OF OFFENSE. language quoted is to be understood as mean

That a pistol drawn on another is loaded, ing that, in such a case, the state must elect sault, are not elements of the crime of drawing a

or that there is present ability to make an asupon which offense it will proceed, and that deadly or dangerous weapon, under Burns' Ann. a conviction of one offense will bar a prosecu- St. 1914, § 2344, but the criminal act denounced tion for the other, we cannot regard it as a thereby is the drawing, or threatening to draw, proper statement of the law. It has been son, the purpose of the act being to prevent fool

a pistol or deadly weapon upon another per. held that a single sale of intoxicating liq- hardy acts, whereby human life and limb are enuors made by a person not having a license dangered, by making them crimes and punishing to a person under 21 years of age constitutes them.

[Ed. Note.--For other cases, two separate offenses, and that the one of

see Weapons,

Cent. Dig. § 19; Dec. Dig. Om 14.] fending may be convicted of both. State v. Gapen (1906) 17 Ind. App. 524, 45 N. E. 678, 5. WEAPONS m14PROSECUTION-DRAWING

WEAPON. 47 N. E. 25.

In a prosecution under such statute, admis(5) In view of what has been said it seems sion of evidence of motive, such as evidence of clear that the trial court committed no error other quarrels and transactions not connected in admitting the evidence in question and with the charge, is error, since the criminality of

the act does not depend on motive. other evidence of a like character. It was

(Ed. Note.-For_other cases, see Weapons, proper for the jury to consider such evidence Cent. Dig. & 19; Dec. Dig. Om 14.] together with other evidence in the case in 6. CRIMINAL LAW E369(1)—EVIDENCE-OTH. determining whether or not appellant was en ER OFFENSES. gaged in operating a place where intoxicating The proof of other crimes or occurrences of liquors were sold in violation of law.

similar nature is permissible in the trial of a Other questions sought to be raised are not constituting the crime under investigation bas

criminal charge only in those cases where the act properly presented, and cannot be considered. been clearly established, and the motive, intent, The record and briefs disclose no reversible or guilty knowledge of the defendant is in issue.

(Ed. Note.-For other cases, see Criminal Judgment affirmed.

Law, Cent. Dig. $ 822; Dec. Dig. Om369(1).]

7. CRIMINAL LAW a 369(1) EVIDENCE-OTH. MORRIS, J., concurs in result


The state will not be permitted to depart from the issue and introduce evidence of extrane

ous misconduct that has no natural connection (185 Ind. 587)

with the pending charge, and which is calculated UNDERHILL V. STATE. (No. 23112.)

to prejudice the accused in his defense, (Supreme Court of Indiana. Nov. 23, 1916.) Law, Cent, Dig. § 822; Dec. Dig. Om369(1).]

[Ed. Note.-For other cases, see Criminal 1. CRIMINAL LAW 1032(1) APPEAL NE


BOR-PRESUMPTION, MOTION TO QUASH AFFIDAVIT. Since the taking effect of act approved March sumed harmful unless the contrary is made to

The admission of improper evidence is pre4, 1911 (Acts 1911, c. 157, § 3, Burns' Ann. St. 1914, § 348), as to necessity of making objec

appear. tions to complaint by demurrer or answer, ac

[Ed. Note.-For other cases, see Criminal cused cannot question the sufficiency of the affi. Law, Cent. Dig. $$ 3094, 3095; Dec. Dig. davit for the first time by an assignment of er

1163(3).) ror on appeal; no motion to quash having been 9. CRIMINAL LAW 117042(1) - EVIDENCE – made.

FAILURE OF ACCUSED TO TESTIFY AT FORMEB (Ed. Note. For other cases, see Criminal TRIAL Law, Cent. Dig. 8 2627; Dec. Dig. m1032(1).] Compelling accused to testify that he did not 2. CRIMINAL LAW Ow1178-APPEAL-BRIEFS-testify at a previous hearing of the case is re


error, since evidence of his failure 80 COUBT.

to testify is inadmissible. Error is waived by failure of accused to state

(Ed. Note.-For other cases, see Criminal any proposition or point in his brief relating to Law, Cent, Dig. § 3129; Dec. Dig. it, as required by the rules of the Supreme 11704(1).] Court.

10. WITNESSES 198(1)-PRIVILEGE-ATTOR[Ed. Note.-For other cases, see Criminal NEY AND CLIENT. Law, Cent. Dig. 88 3011-3013; Dec. Dig. Om An accused cannot be compelled to testify as 1178.]

to a communication made by him to his attorney


for the purpose of receiving professional ad-, ed to this and the Appellate Court as to envice.

able the several members of either tribunal [Ed. Note.- For other cases, see Witnesses, readily to understand the questions which Cent. Dig. 88 747, 748, 753; Dec. Dig. 198(1).]

are presented for decision, without resort to

the record in the case then under consideraAppeal from Circuit Court, Henry Coun- tion. Where a good-faith effort to comply ty; Fred C. Gause, Judge.

with such rule appears to have been made, Alfred C. Underhill was convicted of un- the question so presented will be considered lawfully drawing a pistol upon the person of and determined. Repp v. Indianapolis, O. & another, and appeals. Reversed and ordered, S. Co. (1916) 111 N. E. 614. In this case the with instructions.

substance of the motion for a new trial is Forkner & Forkner, of New Castle, for ap- set out in the brief. pellant. E. B. Stotsenburg, Atty. Gen., and Appellant contends that to constitute an Charles O. Mogle, of New Castle, for the offense under section 2344, Burns 1914, the State.

evidence must show that the weapon drawn

was loaded, and that the appellant had the ERWIN, J. Appellant was charged, by present ability to injure John A. Weidenaffidavit, in the mayor's court of the city bach. Upon this contention is based appelof Richmond, with unlawfully drawing a lant's first six causes for new trial. It has certain dangerous and deadly weapon, to been said by this court that a person standwit, a pistol, upon the person of John A. ing on the opposite side of even a narrow Weidenbach. A trial in the city court re- street from another, pointing an unloaded sulted in a conviction from which an appeal pistol, or a pistol not shown by any evidence was taken to the Wayne circuit court, and to have been loaded, at the other, and threata change of venue was there taken from that ening to use it upon him, may be guilty of court to the Henry circuit court, where a tri- an offense under section 2068, Burns 1894. al by jury resulted in a finding of guilty and Section 2344, Burns 1914, has the same projudgment that appellant be fined in the sum vision. Th offense is not an ass Klein of $250, and that he be committed to the In- v. State (1893) 9 Ind. App. 365, 36 N. E. 763, diana State Farm for a period of 90 days. 53 Am. St. Rep. 354. From this judgment this appeal is prosecuted.

[4] It is the drawing, or threatening to The errors assigned are: (1) That the court draw, a pistol or other deadly weapon upon erred in overruling appellant's motion for another person that is the criminal act in new trial; and (2) that the affidavit does not the section under consideration. Plummer state a public offense, or facts sufficient to v. State (1893) 135 Ind. 308, 319, 34 N. E. 968. constitute a public offense.

It was to prevent foolbardy acts, whereby [1] No motion to quash the affidavit was human life and limb are endangered, by ever made by appellant. Since section 3 of making them crimes and punishing the same, the act approved March 4, 1911 (Acts 1911, that the statute against drawing deadly p. 415, § 348, Burns 1914) took effect, the weapons upon another was enacted. Siberry right to question the sufficiency of the aff. v. State (1897) 149 Ind. 684, 697, 39 N. E. davit for the first time by an assignment of 936, 47 N. E. 458. We are of the opinion error on appeal has not existed. Robinson that appellant's contention must fail, for the v. State (1912) 177 Ind. 263, 97 N. E. 929; reason that it was not necessary to prove Boos v. State (1914) 181 Ind. 562, 105 N. E. that the pistol was loaded, and that there 117; Robinson v. State (1915) 110 N. E. 980. was a present ability to commit an assault. (2) Appellant has also waived any error

(5) Appellant under his motion for new by failing to state any proposition or point trial contends that the court erred in permitin his brief relating to it, as required by the ting the witness Weidenbach to answer the rules of this court. Robinson v. State, 110 question: N. E. 980, supra.

"Now on the Saturday preceding this day (the [3] Appellee contends that the first assign- day pamed in the affidavit) state whether or not ment of error presents no question, for the fendant”

you had any trouble with Mr. Underhill, the dereason that the motion for a new trial is not over appellant's objection, on the ground set out in the brief of appellant, as required and for the reason that: by the rules of this court, and cites Gilmore

“There is no evidence tending to show any v. State (1912) 177 Ind. 148, 97 N. E. 422, connection between the two transactions. Those where this court says:

transactions were entirely separate and distinct, “It has uniformly been held that if appellant and whatever occurred on a former occasion out does not set out in his brief the motion for a there on the farm is not admissible in this trial, new trial or the substance thereof, or grounds as to what occurred on this occasion, when assigned therefor, relied on for reversal, no ques: there is no question of motive or intent intion as to the correctness of the court's action in volved.” overruling said motion is presented."

Appellant also moved to strike out the anConceding that the above rules may be in- swer for the same reasons which was likevoked in a proper instance, it must also be wise overruled by the court. The court's rulborne in mind that their purpose is to guide ing was based upon the right to show motive the preparation of briefs which are present- in doing the act. As seen in the case of Si


berry v. State, supra, there is no question of S. K. Ruick, of Indianapolis, for appellant. motive in issue in such a case as this. E. B. Stotsenburg, Atty. Gen., and Alvah J.

[6, 7] The proof of other crimes or occur- Rucker, Asst. Atty. Gen., for the State. rences of similar nature is only permissible in the trial of a criminal charge in those cas ERWIN, J. Appellant was tried and cones where the act constituting the crime un- victed, on a charge of operating a blind tiger der investigation has been clearly establish- in the city of Indianapolis. Trial was had by ed and the motive, intent, or guilty knowl- the court, without the intervention of a jury. edge of the defendant is in issue. Kahn v. The only question presented by the assignState (1914) 182 Ind. 1, 105 N. E. 385. The ment of errors is the sufficiency of the evistate will not be permitted to depart from dence to sustain the finding of the court. the issue and introduce evidence of extrane- We have examined all the evidence in the ous misconduct that has no natural connec- case as shown by the bill of exceptions, and tion with the pending charge, and which is are of the opinion, without setting out a calculated to prejudice the accused in his de- synopsis of it, that there is sufficient evifense. Rock V. State (1915) 110 N. E. 212, dence to warrant the court in finding appeland cases cited. The trial court, therefore, lant guilty as charged. A part of the evicommitted error in this and many other rul-dence was testimony, given by the police offiings made involving the same question. cer who arrested appellant, that appellant

[8] Where improper evidence has been in- said to him, in effect, after his arrest, that terposed, it will be presumed to be harmful, it was necessary for him (appellant) to do unless the contrary is made to appear. Rock some business unlawfully, for the reason that v. State, supra. By reason of the error in ad- he could not make any money and confine mitting evidence of other quarrels and trans- himself to legitimate business. Other eviactions of similar and different nature not dence was introduced, during the progress of connected with the charge being tried, the the trial, which, independent of the item judgment should be reversed.

above referred to, was, in the opinion of this [9] Appellant contends that the court erred court, sufficient to authorize the court trying in compelling the appellant to testify that he the case to infer that appellant had violated did not testify on a previous hearing of the the statute under which he was being pros

This evidence must have been intro- ecuted. duced for the purpose of showing the defend Judgment affirmed. ant's admission that he did draw a pistol upon the person of John A. Weidenbach. As

(63 Ind. App. 119) suming that the appellant might have been

YORK et al. v. COOPER. (No. 9088.) a witness, and testified in his own behalf in (Appellate Court of Indiana, Division No. 2. the former hearing at Richmond, still he was

Nov. 26, 1916.) not bound to do so; and the fact that he did 1. TRIAL m 400(2)—PROCEEDINGS-MOTIONS. not should not have been received as evi.

Motions to modify, strike out, or add to dence of his guilt. The court committed re- special findings, are not recognized by the Code versible error in overruling appellant's ob- of Procedure but the remedy is by motion for

new trial. jection to the question. Broyles v. State

(Ed. Note.-For other cases, see Trial, Cent. (1874) 47 Ind. 251.

Dig. $ 950; Dec. Dig. ww 400(2).] [10] Appellant also objected to the state 2. APPEAL AND ERROR Omw1078(6)-SCOPE asking him concerning communications to his RECORD-SUFFICIENCY. attorney and his attorney to him.

A party

No question is presented as to overruling mocannot be compelled to testify to a communi- tion for new trial where there is no attempt

to comply with Court Rule 22, cl. 5 (55 N. Ê. cation made by him to his attorney for the vi), requiring the brief to contain a condensed purpose of receiving professional advice. record of the evidence and argument. The court erred in overruling appellant's ob [Ed. Note.-For other cases, see Appeal and jed ons to such questions. Aspy v. Botkins Error, Cent. Dig. § 4261; Dec. Dig. (1902) 160 Ind. 170, and cases cited on page

1078(6).] 174, 66 N. E. 462. For the reasons above

Appeal from Circuit Court, Starke County; mentioned the judgment should be reversed, Francis J. Vurpillat, Judge. which is accordingly ordered, with instruc

Suit by John Cooper against Miles N. tions to the court below to sustain appel- York and others. Judgment for plaintiff, lant's motion for a new trial.

and defendants appeal. Affirmed.

Guy R. York, of Peru, Charles H. Peters,

of Knox, and John F. Lawrence, of Peru, (185 Ind. 598)

for appellants. Burson & Burson, of WinROSE v. STATE. (No. 23106.)

amac, for appellee. (Supreme Court of Indiana. Nov. 24, 1916.)

Appeal from Criminal Court, Marion Coun IBACH, J. Appellee brought this action ty; James A. Collins, Judge.

against appellants to quiet title and fore Earl Rose was convicted of operating a close a lien on certain real estate. The comblind tiger, and he appeals. Affirmed. plaint is in two paragraphs; the first be

ing in the ordinary form of a complaint to 2. APPEAL AND ERROR Om782—DISMISSAL quiet title, and the second sought to reform

GROUNDS—WANT OF JURISDICTION. a certain contract and to foreclose a lien

When it appears from the record that the created thereby. There was a trial by the appellate tribunal is without jurisdiction, it be

comes its duty, on motion, on suggestion of court, and on request a special finding of counsel, or on its own motion, to proceed no facts, with conclusions of law stated there- further except to dismiss the appeal." on, filed, the court concluding as a matter Error, Cent. Dig. 88 3123, 3124; Dec. Dig. Come

[Ed. Note.-For other cases, see Appeal and of law that appellee was entitled to a refor-782.] mation of the contract and a foreclosure of the same as a purchase-money llen. Judg-ty; Nathan A. Whitaker, Judge.

Appeal from Circuit Court, Morgan Counment followed the conclusions of law. The errors assigned and relied on for re- tinsville against Mary K. Wilt and others.

Claim by the First National Bank of Marversal are: (1) Overruling appellants' motion to modify the court's findings of facts

From a judgment for plaintiff, defendants

appeal. Dismissed. by striking out special finding No. 3. (2) Overruling appellants' motion to modify the Ayres & Ayres, of Indianapolis, and w. court's special findings of facts, by striking S. Shirley and Homer L. McGinnis, both of out special finding No. 4. (3) Overruling ap- Martinsville, for appellants. Eph. Inman, of pellants' motion for a new trial.

Indianapolis, and Bain & Branch, of Mar[1] No question is presented by either the tinsville, for appellee. first or second assigned errors. Motions to modify, strike out, or add to the special FELT, J. This suit was begun by appelfindings are not recognized by our Code of lee by filing a claim in the Morgan circuit Procedure. The sole remedy is furnished court against the estate of James F. Carney, by a motion for a new trial. Chicago, etc., deceased, and others, to collect the amount R. Co. v. State ex rel., 159 Ind. 237, 241, due on a certain promissory note executed 64 N. E. 860, and cases cited ; Citizens' Trust by the decedent as principal and by one AnCo. v. National, etc., Supply Co., 178 Ind. drew J. Watson as surety, and payable to ap167, 177, 98 N. E. 865, 41 L. R. A. (N. S.) pellee. The case was tried on an amended 695.

claim against said estate of which Samuel [2] As to the third assigned error, there M. Guthridge was administrator. Other perhas been no effort on the part of appellants sons were joined as defendants as follows: to comply with clause 5, Rule 22 (55 N. E. Andrew J. Watson, surety on the note and vi), and without searching the record this to whom the decedent executed two mortcourt would be unable to determine what gages on real estate to indemnify him against questions were sought to be presented by loss as such surety and therein expressly the motion for new trial, or whether in fact agreeing to pay the debt secured, and Etta such a motion was filed or ruled on. No D. Carney, widow of the decedent, Elsie A. question is therefore presented by this as- and Willard L. Kinneman, alleged owners of signment. Reeves & Co. v. Gillette, 47 Ind. the mortgaged real estate, and Mary K. Wilt, App. 221, 223, 94 N. E. 242.

the holder of a mortgage which she contendJudgment affirmed.

ed was senior to the indemnifying mortgage executed to Watson, Appellee, the claimant.,

sought an allowance against the estate and (64 Ind. App. 649)

a personal judgment against Watson for WILT et al. v. FIRST NAT. BANK OF MAR- the amount of the note, interest, and attorTINSVILLE. (No. 9155.) *

neys' fees, and foreclosure of the mortgage (Appellate Court of Indiana. Nov. 23, 1916.) both the estate and Watson were insolvent.

executed to Watson. It was alleged that 1. EXECUTORS AND ADMINISTRATORS Ow256(5) Appellant Wilt filed a separate answer, in


which she alleged, in substance, that at and Under Burns' Ann. St. 1914, 88 2977-2980, prior to the time of the execution of the inrelating to appeals from decisions connected demnifying mortgage there was a valid and with decedents' estates, requiring bond to be filed within 30 days from the decision and the subsisting mortgage lien on the real estate; transcript to be filed within 90 days after filing that subsequent thereto Watson released his the bond, where an action on the note of a mortgage, and she thereafter took a new decedent signed by one of the defendants as surety, and to foreclose an indemnity mort-mortgage and furnished the money to pay gage given by decedent to the surety, could the first and prior mortgage, and her lien not be maintained except by filing claim against should be declared senior to the indemnifythe pending estate of the deceased maker of the note, and the transcript on appeal was filed ing mortgage relied upon by appellee. Kinne162 days after the judgment for the claimant, man and Kinneman filed special answers. the appeal must be dismissed, though the only The court sustained appellee's demurrers to assignments of error are by appellants other said special answers. Whereupon such anthan the administrator.

(Ed. Note.-For other cases, see Executors swering defendants refused to plead further, and Administrators, Cent. Dig. $$ 854-856, reserved their exceptions, and elected to 915-917; Dec. Dig. Om 256(5).]

stand upon the rulings on their demurrers.

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prwFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied. Transfer denied.


The court thereupon allowed the claim The proceedings in this case clearly invoked against the estate in the sum of $1,245, and the probate jurisdiction of the trial court, costs, rendered a personal judgment against and in no other way could appellee have obWatson, the surety, and decreed foreclosure tained the full relief sought and obtained of the mortgage against all the defendants. by the judgment rendered. Mary K. Wilt and Kinneman and Kinneman .[2] The question presented is jurisdictionexcepted to the rulings and judgment against al, and when it appears from the record that them, prayed and were granted an appeal, the court is without jurisdiction it becomes and have assigned as error the rulings of the the duty of the appellate tribunal, on motion, court in sustaining appellee's demurrers to on suggestion of counsel, or on its own motheir several special answers.

tion, to proceed no further, except to dismiss [1] Appellee contends this court has not the appeal. Vail v. Page, supra, and cases acquired jurisdiction of this appeal for two cited; Harrison National Bank v. Clubertreasons: (1) The decision or judgment ap- son, 147 Ind. 611, 45 N. E. 657, 47 N. E. 13; pealed from is one "growing out of a matter Mumford Co. v. Terry, 43 Ind. App. 339, 87 connected with a decedent's estate”; (2) no N. E. 253. appeal bond has been filed.

The appeal is dismissed. The judgment appealed from was rendered on July 8, 1914, and the transcript was filed

CALDWELL, C. J., HOTTEL, P. J., and on December 17, 1914, 162 days after the IBACH and MORAN, JJ., concur. MCNUTT, rendition of the judgment. If the appeal is J., not participating. governed by sections 2977-2980, Burns 1914, controlling appeals from decisions connected

(63 Ind. App. 95) with decedent's estates, the appeal cannot be sustained, for the statute requires persons

GREATHOUSE et al. V. HARRISON. appealing from such decisions, other than ad

(No. 9093.) ministrators and executors, to file bond with. (Appellate Court of Indiana, Division No. 2 in 30 days from the date of the decision un

Nov. 21, 1916.) less more time is procured in conformity with 1. MORTGAGES 315(1)-SALE OF PREMISESthe statute, and the transcript must be filed BONA FIDE PURCHASER-RELEASE BY Mis. within 90 days after filing such bond. An appeal is taken from the judgment as an en- plaintiff claimed he had released of record by

In an action to foreclose a mortgage which tirety and must be considered. Sterne v. mistake, where the legal title to the property Vert, 108 Ind. 232–234, 9 N. E. 127; Beard has passed to one of defendants since the rev. Hosier, 58 Ind. App. 14–17, 107 N. E. 558, title, must show either that such defendant

lease was made, plaintiff, in order to defeat such The character of the proceeding is not chang- holds as a mere volunteer, or fraudulently, or ed because the only assignments of error that no consideration was paid by him. are made by appellants other than the ad.

(Ed. Note.-For other cases, see Mortgages, ministrator of the decedent's estate. Section Cent. Dig; $8 942, 943, 945, '946, 948; Dec.

Dig. Om315(1).] 2977, supra, provides that “any person con- 2. DEEDS Paw 196(2) – VALIDITY – BURDEN OF sidering himself aggrieved by any decision PROOF. of a circuit court,

growing out of A deed fair and valid on its face is evidence any matter connected with a decedent's essailed by proof that it was obtained by the

of an honest transaction, and until it is astate, may prosecute an appeal" on conditions fraud of the grantee, he is not required to adstated. If the judgment appealed from duce any evidence in its support. grows out of “any matter connected with the [Ed. Note.-For other cases, see Deeds, Cent. decedent's estate," the transcript was filed Dig. 8 649; Dec. Dig. ww196(2).) too late to comply with the statute.

Appeal from Circuit Court, Shelby CounThe basis of the whole suit is the note ex-ty; Alonzo Blair, Judge. ecuted by the decedent and a mortgage like Action by Theodore F. Harrison against wise executed by him. Suit upon such note Archie Greathouse and others. From a judg. could not have been maintained against the ment for plaintiff, defendants appeal. Reestate in any other way except by filing a versed and remanded for new trial. claim against the pending estate of the de Clarke & Clarke, of Indianapolis, Wray & ceased maker. Section 2829, Burns 1914. In Campbell, of Shelbyville, and John W. BowVail v. Page, 175 Ind. 126, 93 N. E. 705, our lus, of Indianapolis, for appellants. Alfred Supreme Court recently considered this ques- R. Hovey, of Indianapolis, John A. Tindall, tion, and Morris, J., who wrote the opinion, of Shelbyville, and Franklin McCray, of In. reviewed the decisions, and among other dianapolis, for appellee. things said, "The test applied in the determination of the question is whether or not IBACH, J. Appellee brought this action the probate jurisdiction of the trial court against appellant Greathouse and a number was involved," and held that, in cases where of other defendants to recover on a note exsuch jurisdiction has been invoked, the ap- ecuted by one Henderson and to foreclose a peal is governed by sections 2977–2980, supra. mortgage given to secure the same on prop

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