Thalls et al. v. Smith.

COFFEY, C. J.-This was an action by the appellee, Jane A. Smith, against the appellant Mary E. Thalls, and others, to foreclose a mortgage. The mortgage was executed by the appellant, Mary E. Thalls and her husband Samuel Thalls, to the appellee on the 28th day of July, 1884, to secure a promissory note of that date, executed by the said Samuel Thalls to the appellee. At the time of the execution of the mortgage, the real estate therein described was held by the appellant and her husband as tenants by entirety, but of this fact the appellee was ignorant, believing the title to be in Samuel Thalls. The mortgage contains full covenants of warranty. On the 26th day of September, 1887, the appellant and her husband conveyed the land to M. L. Spencer, who, on the same day, conveyed it to Samuel Thalls.

On the 17th day of December, 1887, the appellant and her husband conveyed the land to James C. Branyan, who, on the same day, conveyed it to the appellant and her husband, to be held by them as tenants by entirety. Samuel Thalls departed this life, insolvent, before the commencement of this suit.

It is claimed by the appellant that the debt attempted to be secured by the mortgage in suit was the individual debt of her husband, Samuel Thalls, and that the mortgage is, therefore, void; while, on the other hand, it is claimed by the appellee that the appellant is estopped from denying the validity of the mortgage.

We do not stop to inquire whether the appellant could have made a successful defense against this mortgage had the title to the land therein described remained in her and her husband, for the reason that we are of the opinion that if she had such defense it was lost when the title vested in the husband alone.

Had this suit been instituted while the husband held VOL. 139-32

139 498

139 572

The State v. Hodgin.

the title it is very clear, we think, that neither he nor this appellant could have defeated a foreclosure on the ground that the mortgage was executed as surety for his debt. If such a defense could not have been made it is plain that he could not confer upon the appellant the right to make it by a subsequent conveyance.

If one who executes a warranty mortgage without title subsequently acquires the title such acquisition inures to the benefit of the mortgagee, and the mortgagor will be estopped from denying that he had title at the date of such mortgage. Pancoast v. Travelers Ins. Co., 79 Ind. 172; Boone v. Armstrong, 87 Ind. 168; Curren v. Driver, 33 Ind. 480.

When Samuel Thalls acquired the title to the land described in the mortgage in suit, such mortgage became a binding lien on the land and he could not divest such lien by a subsequent conveyance.

The circuit court did not err in entering a decree of foreclosure in this case.

Judgment affirmed.

DAILEY, J., took no part in the decision of this cause.
Filed Dec. 13, 1894.

139 498

141 45

139 498

144 367

139 498

154 394

139 498

159 421

No. 17,384.

THE STATE v. HODGIN.

APPEAL.-Dismissal of.—Parties to Judgment or Proceeding not Parties to Appeal.-No Showing as to Absence of Interest of Omitted Parties.-~ It is a rule of practice, which applies alike in civil and criminal cases, that the assignment of errors is the appellant's complaint on appeal, and that the burden rests upon him to present by it, in a comprehensive and intelligible manner, some ruling of the lower court claimed to be erroneous, and that the full names of the parties shall be stated; and this rule is not complied with without an

The State v. Hodgin.

affirmative showing as to the absence of interest in the appeal by those parties to the judgment or proceeding, who are not connected in the appeal, and under such state of the record the appeal will be dismissed.

From the Howard Circuit Court.

A. G. Smith, Attorney-General, J. F. Pyke, Prosecuting Attorney, and C. Wolf, for State.

J. C. Blacklidge, C. C. Shirley, B. C. Moon, M. Bell and W. C. Purdum, for appellee.

HACKNEY, J.-The appellee and eight others were charged, by an indictment in five counts, with a conspiracy to commit personal violence upon the prosecuting witness.

The record contains the indictment, a verdict of not guilty, in the case entitled "The State of Indiana v. Leonard B. Hodgin et al.," and a judgment, under the same title, that "the defendant go hence."

The record next presents a bill of exceptions which, together with the order-book entry of its filing, is entitled, in the same form, as in a cause against all of the defendants. There is no recital in the bill, nor does it otherwise appear from the record, that the appellee severed in his defense or that he was arraigned, tried, acquitted or secured a dismissal independently of his codefendants. It would appear, therefore, that two presumptions might arise from the record, namely, that there was a trial of all of the defendants and that some one defendant was acquitted. Whether the defendant acquitted was the appellee, Hodgin, we have no means of determining from the transcript. If he was not acquitted no appeal could be entertained, and the fact of acquittal must appear from the record. ton, 62 Ind. 409; State v. Hallowell, 91 v. Spencer, 92 Ind. 115.

State v. Hamil-
Ind. 376; State

1

The State v. Hodgin.

The only appellee brought into this court is the said Hodgin and the absence, in this appeal, of his codefendants is in no way accounted for. It is a rule of practice of long standing that the assignment of errors is the appellant's complaint on appeal, and the burden rests upon the appellant to present, by it, in a comprehensive and intelligible manner, some ruling of the lower court claimed to constitute error. Another and indispensable requirement of this rule is that the "full names of the parties" shall be stated. Rule VI, of this court; Burke v. State, 47 Ind. 528; Darnall v. Hurt, Guar., 55 Ind. 275; Thoma v. State, 86 Ind. 182; Calvert v. State, 91 Ind. 473; Snyder v. State, ex rel., 124 Ind. 335; Braden v. Leibenguth, 126 Ind. 336; Gourley v. Embree, 137 Ind. 82; R. S. 1894, section 647; R. S. 1881, section 635.

The rule applies alike in criminal and civil cases, Sturm v. State, 74 Ind. 278, and it is not complied with without an affirmative showing as to the absence of interest in the appeal by those parties to the judgment or proceeding, who are not connected in the appeal. Gourley v. Embree, supra.

The rule has not been complied with by the appellant and, as notice of the insufficiency of the record has been brought to the appellant by the brief of the appellee and an opportunity has been given to correct the record, if possible, we have no course but to dismiss the appeal, which is accordingly done.

Filed Dec. 12, 1894.

Metzger v. Huntington, Trustee.

No. 17,056.

METZGER v. HUNTINGTON, TRUSTEE.

AGENCY.-Authority of Agent.-Ratification.-Party Dealing With One
Assuming to be Agent Put on Inquiry as to His Authority.-Adverse In-
terest of Agent.-Conveyance.-Deed.-Assumption Clause.-Real Es-
tate.-Pleading.-Defects Not Cured.-L. and W. entered into a con-
tract with H., December 14, 1887, by which they agreed to purchase
certain land of H. for $45,000. L. and W. were to execute mortgages
on the several lots into which the land was to be platted, which were
to be first liens on the several lots, the mortgages to bear date January
1, 1888, L. and W. agreeing to assume these mortgages as a part of the
purchase-price, and agreeing to expend $8,000 in one year, in platting
and improving the tract, etc., H. to furnish them a deed and take the
mortgages, as agreed to, as soon as the plat was recorded and the
improvements made. L., desiring to dispose of his interest, em-
ployed W. to procure a purchaser. W. sold L.'s interest for $12,500,
to M., June 9, 1888. June 11, 1888, L. sold his contract with M. to
W. On October 20, 1888, by agreement among H., L. and W., M.
not being present, H. made a deed for all the land to J., acting as
third party, or go-between. J. executed and acknowledged the
plat, and then executed to L. notes for $45,000, with specific mort-
gages on the several lots. L. indorsed the notes to H., and J. also
executed a deed to W. for the whole tract, which contained the
clause: "Subject, however, to mortgages bearing even date here-
with,
aggregating $45,000 of principal, which the second
party assumes and agrees to pay." W. executed a deed to M. for
an undivided one-half of the plat (the relation existing between W.
and M. being that of tenants in common, and not that of partners),
with assumption clause as follows: "Subject to incumbrance by mort-
gage of even date herewith, aggregating $43,650 and accrued interest,
** which the second party assumes and agrees to pay as his interest
proportionately appears," which deed W. placed on record and noti-
fied M. thereof, M. never having seen the deed, and not knowing that
it was to come from W., as his contract was with L., and having no
knowledge that the deed contained the assumption clause. M. from
time to time sent to W. his proportion of the expense of improving
the property, also money to pay his share of the interest on the mort-
gage debt, and his taxes, and joined with W. in making deeds for
three lots. In February, 1890, H. notified M. that the interest being
unpaid the whole debt had become due, and also drew his attention
to the assumption clause in his deed from W., which was the first in-
timation M. had of such clause fixing his personal liability for the
debt, believing he had bought the property subject simply to the
mortgage debt. H. brings suit against M. on the assumption clause.

139 501 142 504