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Mettart et al. v. Allen.

ing to $450, which said Worl assigned to Kepler, and when she bought the land of Kepler she knew of the existence of the mortgage, now held by the appellee, and that Kepler made no examination of the mortgage records, to ascertain if there were any prior mortgages on the land. The court does not find that the notes assigned to and held by Kepler were payable in any existing bank of this State, so as to give them the sanctity of commercial paper, and hence he holds them subject to the same defenses that they would be exposed to in the hands of any previous holder.

We do not think the Allen mortgage is absolutely void, by reason of the description, as asserted by the learned counsel for the appellee. A description of real estate that may be rendered certain by averment is not void for uncertainty. Pence v. Armstrong, 95 Ind. 191.

It has been held that the description of a tract of land by the name which it has acquired by reputation is sufficient. Haddleson v. Reynold's Lessee, 8 Gill & Miller (Md.), 332; 50 Am. Dec. 702.

So a tract of land that has a well known name may be described by that name. Haley v. Amestoy, 44 Cal. 132; Stanley v. Green, 12 Cal. 148.

It is also a doctrine of the courts that possession may render certain what would otherwise be an uncertain description. Richards v. Snider, 11 Ore. 197.

In our opinion the description of the real estate in question is susceptible of being made certain by averment, as has been done in this case, and as the appellants had constructive notice of appellee's mortgage, the court did not err in holding her cross-complaint sufficient, or in its conclusions of law. Wade Notice, sections 183, 184 and 185.

The judgment of the court below is affirmed.

Filed Dec. 13, 1894.

Brown et al. v. Brown et al.

No. 17,066.


CONTRACT.-Parent and Child.—Advancement in Full Consideration of
Child's Expectant Interest in His Ancestor's Estate.-Where the father
makes a contract with certain of his children, who are his expect-
ant heirs, all of full age, by the terms of which they are to receive
a present allowance, in land, by way of advancement, in full for all
their expectant interest in his estate, and agree to release the estate
of all claims thereafter on his death and the final settlement and
distribution of the estate, such contract, in family settlement, if
made freely and without fraud, is binding and valid upon all par-
ties concerned.
SAME.-Family Settlement.-Answer Setting Up Such Settlement.-Suf-
ficiency of Reply to.-Equitable Relief.-Where the reply to an an-
swer setting up such contract, stated that at the time of the contract
and deed the second wife, now widow, of the ancestor had a great
dislike for plaintiffs, children of a former wife, and a strong and
undue influence over said ancestor, and was using every persuasive
means in her power to induce him to will all his property to her
and her children, and cut plaintiffs out entirely, and that the con-
tract and deed were made under the above circumstances and sur-
roundings, by reason of which facts plaintiffs aver that by said ad-
vancements they received but a small portion of their father's es-
tate,—it presents a case which appeals so strongly to equity that
the issues as to the freedom and fairness of the contract between
the father and his children by his first wife ought to be determined
by the court after hearing the evidence, and not upon demurrer.

From the Parke Circuit Court.

H. B. Hensley, J. M. Johns, E. Hunt and A. M. Hadley, for appellants.

S. D. Puett, A. M. Adams, S. McFaddin, T. N. Rice and J. T. Johnston, for appellees.

HOWARD, J.-The appellants filed their complaint against the appellees, asking for partition of certain lands described.

On the overruling of a demurrer to the complaint, the appellees answered, averring that one William Brown,

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Brown et al. v. Brown et al.

father of appellants and appellees, except the appellee Sarah J. Brown, who is his widow, died in 1893 the owner in fee simple of the lands described in the complaint, leaving the parties hereto his only heirs at law; that on July 12, 1892, the said decedent, William Brown, conveyed to appellants certain real estate and other property as an advancement and in full of their interest in his estate, which property the appellants accepted as such advancement in full of such interest in their said father's estate; that appellants are the children of said decedent by his first wife, also deceased, and the appellees Julia E. Reeder and Ella May Gray, are the children of said decedent by his second wife, and now widow, the appellee Sarah J. Brown, who, in consideration of said release by appellants of their interest in their father's estate, joined with her said deceased husband in deeding her one-third interest in the lands so conveyed by him to appellants; that appellants have and hold said land and other property so conveyed to them.

In a second paragraph of answer, it is averred, in addition, that a controversy having arisen between said decedent and his said children, the appellants, in regard to his final report as their guardian, the said William Brown and the appellants, except the appellant Sarah J. Spencer, met on July 12, 1892, for an adjustment of all differences, at which time the agreement was made that said decedent should convey to appellants said land and other property in full of all demands due, and also in full of all claims appellants or their heirs might have upon his estate at his death and final settlement of his estate, which property was accepted by them in like manner and the agreement reduced to writing, said agreement being afterwards accepted and signed by the remaining appellant, Sarah J. Spencer; that a deed was made and accepted for said land, and appellants have

Brown et al. v. Brown et al.

since been in the enjoyment of all said property. The agreement and the deed are made exhibits to the answer.

Separate demurrers being overruled to each paragraph of the answer, the appellants replied, admitting the making of the agreement and deed mentioned, and that they received from their father the other property referred to. But they said that at the time of said agreement the said William Brown, who had been for many years their guardian, was indebted to appellants in a large sum for property, moneys, and rents, which had descended to them from their mother's estate, and for which he had failed to account in his final report as guardian; that the larger part of the said consideration in land and other property received by them was in settlement of said guardianship indebtedness, and the residue only was received as an advancement on their interest in their said father's estate; that they were, at the date of said agreement, July 12, 1892, and are still unable to state the exact amount due them from their mother's estate so in the hands of their father as guardian, or to state how much of said consideration received by them should be charged as an advancement, but that in no event should more than two thousand dollars thereof be so charged; that at the time of said agreement their said father owned in his own right, free of all indebtedness or liabilities, real estate of the value of thirteen thousand dollars, and after conveying to appellants the lands mentioned in the answer, he continued to own up to his death, and died intestate. seized of, the lands described in the complaint, of the value of nine thousand dollars, and personal property, also free from liabilities, of the value of three thousand dollars; that at the time of said agreement and deed, the appellee Sarah J. Brown, second wife of said William Brown, deceased, had a great dislike for appellants and a strong and undue influence over her said husband, and

Brown et al. v. Brown et al.

was using every means in her power to induce him to will all of his property to her and her children, and cut these appellants out entirely; that said agreement and deed were made and said moneys, land, and other property received under the foregoing surroundings and circumstances; that by reason of said facts appellants received but a small part of their said father's estate, and that after charging them with said amount so advanced there would still remain due them a large amount of property to equalize them with their said father's children by his second wife; that in equity there should be an accounting to determine what amount should be charged appellants as an advancement, and such amount taken into consideration in making partition of said lands described in the complaint.

To this reply a demurrer was sustained, and the appellants refusing to plead further, this appeal followed. The written agreement mentioned in the answer and reply is as follows:

"Whereas, differences have arisen between William Brown and his four children, Sarah J. Spencer, George W. Brown, Harriett J. Holbert, and Martha A. Holbert, concerning his guardianship while guardian of said children.

"Now, it is agreed by and between said parties that said William Brown shall deed to said children eighty acres of land, to wit: The west half of the southwest quarter of section 12, in township 14, range 8, in Parke county, Indiana, at the sum of $4,000; and, in addition thereto, he is to pay to said children the sum of $733.35 in two years, with interest, and is to turn over to said. children the one-half of the rents of all crops on said eighty-acre tract (wheat and corn) of land, which deed and money and rents are to be taken by said children in full settlement of all claims and demands they may have

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