for the trees cut down, and may be enjoined from cutting other
of such timber; the danger not being shown to be immediate and
probable, but remote and barely possible, which was not sufficient
to justify the acts complained of.
Toledo, etc., R. R. Co. v. Loop, 542
RAPE.
See CRIMINAL LAW, 4, 5, 6.
RATIFICATION.
See AGENCY; CORPORATION, 4.
REAL ESTATE.
See AGENCY; AGRICULTURAL LANDS; CONVEYANCE; DEED, 1; DESCRIP-
TION; HUSBAND AND WIFE; SALE, 1; STATUTE OF LIMITATIONS, 1;
TRUST, 4.
1. Childless Second Wife.-Estate of.-Conveyances by Children of
Prior Marriage.-Construction of Statute.-Change of Rule.-It was
held by the Supreme Court, up to the May term 1881, that by the
provisions of sections 2483 and 2487, R. S. 1881, a second or sub-
sequent wife, having no child by her husband, took only a life
estate in one-third of his lands where he left living children by a
former marriage. At the May term 1881, the rule was changed,
it being then decided that the wife under such circumstances
inherited a fee simple in the undivided one-third of the husband's
lands, and that at her death his children by the former marriage
became her forced heirs.
Held, that conveyances made by children of a prior marriage during
the life of the childless widow while the former construction pre-
vailed carried to the grantee the fee simple.
Held, also, that the new construction of the statute can only be ap-
plied prospectively, and that upon the death of the childless
widow after such construction was declared, the children of the
former marriage took nothing as against their prior grantee.
Stephenson v. Boody, 60
2. Cross-Complaint to Quiet Title.-New Trial as of Right.-Where,
in an action to reform an agreement to convey land, and for spe-
cific performance thereof, the defendant files a cross-complaint
to quiet title, the latter may claim a new trial as of right under
section 1064, R. S. 1881.
Island Coal Co. v. Streitlemier, 83
3. Quieting Title.-Sufficiency of Complaint.-A cross-complaint by a
defendant alleging ownership of land and that the plaintiff was
falsely and without right asserting that he held the defendant's
written contract to convey the land and was procecuting his ac-
tion to enforce specific performance of the contract, thereby cast-
ing a cloud upon the defendant's title, shows a claim of an ad-
verse interest in the land, and is good.
Ib.
4. Incompleted Contract to Convey.-Delivery.-Where a contract to
sell "a strip off the north end of our farm" is signed by the par-
ties, with an understanding that it is not to be obligatory until
the owner shall have an opportunity to see where the marginal
boundary lines will run, and such owner refuses to deliver the
writing until the boundary lines are pointed out, and then, the
boundaries not being satisfactory, absolutely refuses to deliver,
there is no agreement, but only a preliminary negotiation.
5. Contract to Convey.-Indefinite Description.-Specific Performance.
-It seems that an agreement to "sell a strip off the north end
VOT. 139-47
of our farm in Stafford township, Greene county, Indiana, in shape
as by diagram below, the boundaries extending north and south,
being agreed upon as by diagram, and the boundaries east and
west are yet to be determined upon later, but enough is to be sold
to the Island Coal Company, at $40 per acre, to (extending far
enough east) cover their plant switches, pond and barn, and such
as is necessary for coke ovens," the accompanying diagram being
indefinite, is not sufficiently certain to be specifically enforced.
6. Title by Adverse Possession.-Twenty Years' Statute of Limitation.—
Twenty years of adverse possession of land under claim of
ownership in fee confers as complete a title as a written convey-
McKinney v. Lanning, 170
7. Easement.-Extinguishment.-Adverse Possession.-Revivor of Ease-
ment.-Conveyance.-Deed.-Where A conveyed a strip of land off
his lot to B, adjoining B's lot, to be used as a driveway, reserving
to himself, his heirs and grantees an easement in said way for
driving, etc., and B and his grantees have continuously, for more
than twenty years, claimed the ownership in fee thereof, and for
such time held exclusive and adverse possession thereof, denying
the enjoyment of the easement, the easement, having been ex-
tinguished by adverse possession, can not be revived by a grantee
of B by a reference to the reservation in A's deed to B. Ib.
8. Conveyance.-Deed, Recitals in.-Estoppel Only as Between Parties
or Privies to Conveyance.-The reference to the reservation in A's
deed by a subsequent conveyance by one of B's grantees, can not
be set up as an estoppel by the grantees of A, they not being par-
ties or privies to the conveyance; for no one can set up another's
act or declaration as a ground of estoppel, unless he has himself
been misled or deceived by such act or declaration.
Ib.
9. Possessory Action.-Title.-Recovery.-One must recover, if at all,
on the strength of his own title, and not on the weakness of his
adversary's.
Ib.
RECEIVER.
See CORPORATION, 6.
1. Sale on Execution or Decretal Order.-Receiver to Collect Rents
and Profits, etc., During Year for Redemption.-The statute gives
the owner of real estate sold on execution or decretal order the
right of possession during one year from the date of sale, during
which time he has the right of redemption, and it is only in a
clear case of necessity, in order to protect the rights of others,
that the owner ought to be deprived of this right by taking from
him his property and placing it in the hands of a receiver. If, in
any event, it would be proper to appoint a receiver to collect the
rents and profits during the year for redemption, the rents and
profits should be paid into court for the use of the person entitled
thereto.
Sellers v. Stoffel, 468
2. Sufficiency of Application.-Foreclosure of Mortgage.-Rents and
Profits. While the allegations in an application for a receiver
may be supplemented and enlarged by affidavits and oral testi-
mony, yet the appointment can not be sustained if the allegations
fail to show statutory or equitable grounds upon which it may
stand; and where the only allegations as to the appointment of a
receiver, in an action to foreclose a mortgage, are "that said
premises can be rented from $8 to $12 per month, and asks that a
receiver be appointed by this court to take charge of said prem-
ises and collect said rent and pay the same into court to be ap-
plied on said mortgages," no case is made justifying such ap-
pointment.
See BILL OF EXCEPTIONS, 2, 3; JUDGMENT, 3; PLEADING, 1; REPORT-
ER'S LONGHAND MANUSCRIPT.
See FRAUDULENT CONVEYANCE, 3; REAL ESTATE, 9.
See JUDGMENT, 5; QUIETING TITLE, 6; RECEIVer, 1.
REFORMATION OF DECREE.
See JUDGMENT, 6.
REFORMATION OF INSTRUMENT.
1. Deed.-Description.—Mistake of Fact.-Married Woman.-Where,
by inadvertence of the scrivener in the preparation of a deed, and
by mutual mistake of all the parties thereto at the time of the
execution thereof, the description of the premises conveyed was
erroneously stated as the "undivided three-fifths," while the de-
scription intended and believed by the parties at the time of the
execution of the deed to be duly stated therein was "the un-
divided four-fifths," the deed may be reformed so as to express
the mutual intentions of the parties, even though such relief be
sought against a married woman.
Parish v. Camplin, 1
2. Mistake of Fact.-Deed.-Description.-Even if the parties knew
that the deed read "three-fifths" instead of "four-fifths," it con-
stitutes a mistake of fact, and not a mistake of law, if the parties
really thought the deed sufficient to convey the "four-fifths,” and
would entitle the plaintiff to a reformation in that respect. Ib.
3. Mistake of Fact.-Mistake of Law.-Relief.-Deed.-Omission of
Grantor's Name from Body of.-Equity requires such amendment
of a writing (a deed) as will make the contract (the conveyance)
what the parties supposed it was, and intended it should be,
whether the mistake be one of law or of fact. So, where one of
the grantors, a married woman, and her husband, joined in the
execution of the deed, but their names do not appear in the body
thereof, and appear only where they signed it and in the certificate
of acknowledgment by the notary, the deed should be reformed
so as to express the mutual intentions of all the parties. Ib.
REMAINDER.
See CONVEYANCE, 1, 3, 4, 7.
REMAINDERMAN.
See CONVEYANCE, 2.
REMEDY.
See ACTION, 3; BOARD OF CHILDREN'S GUARDIANS, 4; INJUNCTION, 3;
INTERROGATORIES TO JURY.
Choice of Concurring Remedies.-Effect of.-Where there are concur-
ring effectual remedies, the choice and uninterrupted prosecution
of one excludes the other.
American Furniture Co. v. Town of Batesville, 77
See INTOXICATING LIQUORS, 1, 3; HIGHWAY, 1.
RENTS AND PROFITS.
See RECEIVER, 1, 2.
REPEAL BY IMPLICATION.
See STATUTE, 1.
REPORTER'S LONGHAND MANUSCRIPT.
How Made Part of Record.-Bill of Exceptions.-There is no mode of bringing the evidence taken by an official reporter to this court except by embodying it in a proper bill of exceptions.
City of Alexandria v. Cutler, 568
RES ADJUDICATA.
See FORMER ADJUDICATION.
RES GESTÆ.
See EVIDENCE, 2.
RULES AND REGULATIONS.
See MASTER AND SERVANT, 11.
See CONVEYANCE, 4; Sale, JUDICIAL; SALE ON EXECUTION; Sale, Void; SHERIFF'S SALE; STATUTE OF LIMITATIONS, 6; TAX SALE.
1. Power of in Will.-Conveyance.-When in Fee.-Real Estate.Where the power of sale given to the widow by the will of her deceased husband is clear and absolute, without conditions or limitations, a conveyance in fee will be upheld, whether the widow holds the fee or a life estate. McMillan v. Deering & Co., 70 2. Power of.-Life Estate.-Conveyance in Fee.-Consideration.—Presumption. If she hold but a life estate, and the deed purports to convey the fee, it will be presumed that the conveyance has been made pursuant to the power without an express statement in the deed that such was the intention, without reference to the power. Such presumption, however, must arise from considerations entirely independent of the price paid, unless the consideration paid is entirely disproportionate to the value of the fee, and is proportionate to the value of the life estate, in which case it would probably be a circumstance to be considered in rebuttal of the presumption which arises independently of the values.
3. Void Deed.-Unsoundness of Mind of Grantor.-Not Judicially Declared So.-Knowledge by Grantee.-It can not be maintained that the deed, in such conveyance, was void because of the insanity of the grantor, the widow, where it does not appear that the widow had ever been adjudicated a person of unsound mind, or that the grantee knew of her alleged unsoundness of mind. Ib. 4. Conveyance.-Color of Title.-Voidable Deed.-Power of Sale.The power expressed in the will, the execution of the deed pursuant to that power, and a subsequent purchase by one unacquainted with the mental condition of the grantor, give colorable title which is at most only voidable, and not void. Ib. 5. Will.-Conditional Fee.-Power of Sale.-Quieting Title.—In such case, where the will provided: "I give and bequeath to my beloved wife, * all the property, moneys and effects that I may be possessed of at my death, to dispose of at her own discretion, and if she see cause to sell the real estate, I hereby authorize her to do so, * without order of court; and after the death of the remaining property to be divided between
to them and their heirs," the daugh-
ters, or the heirs of either or both of them, are not the unqualified
owners of the fee of such land, so as to be entitled to have their
title thereto quieted, and can not become such owners so long
as the widow lives and may execute the power conferred by the
will.
Ib. '
SALE, JUDICIAL.
See JUDGMENT, 5; Title, 1, 2.
SALE ON EXECUTION.
See RECEIVER, 1; STATUTE OF LIMITATIONS, 1, 2.
Foreclosure Decree.-Sheriff's Sale.-A sale on a decree of foreclosure
is a sale on execution within the meaning of the statute.
Moore v. Ross, 200
SALE, VOID.
See MARRIED WOMAN, 3.
SCHOOL FUND MORTGAGE.
See MARRIED WOMAN, 3.
SHERIFF'S SALE.
See SALE ON EXECUTION.
See FRAUDULENT CONVEYANCE, 3; SUPREME COURT PRACTICE, 4.
1. General Finding Disregarded.-Where special findings are demand-
ed and made, a general finding will be disregarded.
2. How Considered with Reference to Time.-Special verdicts should
be read and considered with reference to the issue as tendered
by the complaint and answers, and as addressed to the time when
such issue was tendered, and not with reference to subsequent
conditions, unless such conditions affirmatively appear to have
changed the status of the parties or the facts constituting the is-
Miller v. Richards, 263
3. Power of Court to Amend.—Cases Modified.—A trial judge may, in
all cases, amend his special findings of facts and conclusions of
law at any time before final judgment and during the period with-
in which a bill of exceptions containing the evidence may be filed.
Wray v. Hill, 85 Ind. 546, and decisions following that case, mod-
ified.
Thompson v. Connecticut Mut. Life Ins. Co., 325
4. Signing by Judge. When Required.-The law requires a special
finding to be signed by the judge, where it is not made a part of
the record by bill of exceptions or order of the court.
Ferris v. Udell, 579
5. When Sufficiently Signed.—Signature Following Conclusions of Law.
-Venire de Novo.-Where the conclusions of law stated immedi-
ately follow the finding of facts, and the judge's signature imme-
diately follows the conclusions of law, if such signature is not a
sufficient signing of the special finding, it was a defect in matter
of form, and the remedy was by motion for a venire de novo, and,
in the absence of such motion, the special finding and conclusions
of law are sufficient to present the questions involved in them, on
appeal.
Ib.
6. Conclusions of Law. When Disregarded.-A statement in a finding
of facts that if the defendant is permitted to do certain things the
plaintiff is without any adequate remedy, except the one he seeks
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