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Troost v. Davis, Sheriff, and Others.

nent improvements so made upon said premises must be deducted; out of which sums the mortgagees of the purchaser who made the improvements, and other liens created by such purchaser, were to be paid, according to their priority, and the balance, if any, paid to the original purchaser, the remainder, if any, after such deduction, to be applied to the junior mortgage assignee and his costs.

In the case of Mickles v. Dillaye, 17 N. Y. 80, the Court of Appeals expressly approve the decision in Wetmore v. Roberts, supra, and they also hold, that where valuable and permanent improvements have been made in good faith, by a person standing upon the legal footing of a mortgagee in possession, but who supposed himself to have acquired the absolute title, and such mistake was favored by the omission of the mortgagor, for several years before and after the improvements, to assert any interest in the premises, the mortgagor, on asking the aid of equity to redeem, will be compelled to allow the value of the improvements, though exceeding the rents and profits received.

In Benedict v. Gilman, 4 Paige Ch. 58, the plaintiffs had purchased under a statute foreclosure which did not cut off the rights of judgment-creditors whose liens were subsequent to the mortgage, and he had taken possession and had made permanent improvements in ignorance of the existence of certain judgments in the hands of the defendants. He filed a bill claiming a strict foreclosure unless the defendants would pay up the mortgage and the value of the improvements, and this was decreed.

Judge Story, indeed, states the doctrine broadly, that where the party making the improvements has acted bona fide and innocently, and there has been a substantial benefit conferred on the owner, he ought to pay for such benefit. Story Eq. S 1237.

The case before us is a strong one for the appellant. But for the improvements, the creditor could not secure anything by his lien, and he now seeks to avail himself of the money expended in good faith by an innocent party, to se

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Gaylord and Others v. Dodge.

cure his debt. We think the demurrer should have been overruled. If on the final trial the averments of the complaint shall be sustained, the court should determine the amount of increased value added to the property by the improvements made in good faith, and add thereto the amount of the mortgages and taxes, and charge the plaintiff with the value of the rent of the property, as it would have been without the improvements, for the time held by him, and then order a sale of the property, paying out of the proceeds the sum found due the plaintiff, and applying any balance to discharge the judgment and costs, and paying over the residue, if any, to the plaintiff. If no bid shall be made for the property exceeding the sum ascertained as due the plaintiff, the property should be struck off to him, and a deed ordered, free from the lien of the judgment.

The case is reversed, and remanded for further proceedings. Costs here.

D. P. Baldwin, for appellant.

S. T. McConnell and M. Winfield, for appellees.

GAYLORD and Others v. Dodge.

WIDOW.-Rights in Husband's Real Estate The rights of a surviving wife in the real estate of her husband are, in this State, those created by statute alone.

SAME.-Trust.-Descent.-A. purchased from B. certain real estate, for which he paid in money and in other land in the conveyance of which to B. the wife of A. joined with her husband. At A.'s request, and without the knowledge or consent of his wife, who supposed that the entire property so bought from B. was conveyed to her husband, a portion of it was conveyed by B., by deed absolute on its face, to C., a son of A. by a former marriage, and the deed was delivered by B. to A. Nothing of the transaction was known by C. till he received, in due course of mail, at his place of residence

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Gaylord and Others v. Dodge.

in another state, a letter written to him by A. on the day of the conveyance, informing him of the purchase and of the making of the deed to him as aforesaid, and that A. would want a deed from C., in a few days, to the children of E. and F., daughters of A. by said former marriage; that A. would send a deed for C. to sign in a few days; that the property was then in C.'s name, and that A. wished C. to tell the wife of the latter how it was situated then, so that she would know all about it if C. should be taken away; and if A. should, he wished the property so deeded to C. to be made over to said children, the rents and profits to be paid them yearly for their support, and when they should become twenty-one years old, "to have the property in fee simple, to be disposed of as they please;" that A. thought he had bought the B. property very low; that it cost B. a certain sum, "and as property is advancing, it must bring that again, but I shall not sell it, as it is in a good location, and will let the children have it;" and requesting C. to not let any one know but that he (C.) had paid for half the B. property. C. immediately answered A. by letter, acknowledging the receipt of the letter from A., and saying that C. had told his wife about the arrangement A. proposed making in case C. should be taken away, and that she would follow the injunction of A.'s letter, in that event. C. and his said wife had no children. Subsequently, without consideration, at A.'s request, C. and his said wife conveyed said real estate to A. for life, then in separate parcels, to E. and F. for life, remainders in fee simple to said children of E. and F. After the execution of the deed from B., A. made expensive improvements on the land so conveyed to C., collected rents, and paid taxes and assessments of all kinds. A. died, intestate, leaving his said wife and issue by her surviving him. Held, that no use or trust resulted in favor of A. from said conveyance of B. to C., and that said letters did not create a trust in favor of A. or confer ou him the right to the use, control, or disposition of the property conveyed to C., but that said letters did create a trust in favor of the children of E. and F. which a court of equity would have enforced.

Held, also, that the variation in the agreement between A. and C. did not affect the rights of A.'s surviving wife.

Held, also, that no interest in the real estate so conveyed to and by C. descended under the statute to the widow of A.

TRUST.-Executed Use.-Statute Construed.-Section 13, 1 G. & H. 652, applies where the trust is expressly declared and the beneficiary named in the conveyance, the title of the trustee being nominal only; in which case this statute executes the use.

APPEAL from the Tippecanoe Circuit Court.

This was a complaint against the appellants by Rebecca A. Dodge, claiming title, as the widow of Nathan B. Dodge, deceased, to an undivided third part of certain real estate.

Issues were formed, and the cause was submitted to the court for trial. The court found "for the plaintiff, and that

Gaylord and Others v. Dodge.

she is the owner in fee simple, as surviving widow of Nathan B. Dodge, deceased, of the undivided one-third of the land described in her complaint, and that she is entitled to a conveyance vesting in her said undivided interest."

A motion for a new trial having been overruled, judgment was rendered on the finding. A commissioner was thereupon appointed to make and execute to the plaintiff a deed of conveyance for the undivided third part of the real estate described in the complaint; which was accordingly executed, reported to the court, and approved.

One of the reasons filed for a new trial is, that the finding of the court is contrary to the evidence.

The facts of the case presented by the evidence are these:

Nathan B. Dodge, the decedent, was twice married. The issue of the first marriage were a son, Joshua C. Dodge, and three daughters, Martha A. Gaylord, Mary J. Chadwick, wife of Rufus Chadwick, and Mrs. Granger. Martha A. Gaylord and Mary J. Chadwick, with their children, were the defendants below, and are the appellants in this court.

Nathan B. Dodge and Rebecca A., the appellee, were married on the 24th of July, 1850, and lived together until the death of the former on the 16th of May, 1866. The issue of their marriage, Nathan B. Dodge, Jr., who was born in November, 1851, still survives.

On the 9th of April, 1859, Nathan B. Dodge, Sr., purchased of Albert S. White certain real estate in the city of Lafayette, for the sum of twelve thousand dollars, of which the sum of four thousand dollars was paid by a conveyance to White of certain real estate then owned by said Vathan B. Dodge, Sr., in which conveyance the appellee joined. The residue of the purchase money was paid by said Nathan B., in cash.

On the day of the purchase, White, by the direction of Nathan B. Dodge, Sr., and without the knowledge of the appellee, conveyed a part of the real estate sold by him, of

Gaylord and Others v. Dodge.

the estimated value of eight thousand dollars, and which is the subject of this suit, to Joshua C. Dodge, the son of said Nathan B. and then residing in Boston, Massachusetts. This deed was absolute on its face, no trust being declared therein; but it was delivered to Nathan B. Dodge, Sr., who, on the same day, wrote to his son, Joshua C., as follows:"LAFAYETTE, April 9th, 1859.

"I have this day purchased the A. S. White property. I pay twelve thousand six hundred dollars for it. I have fourteen rods on Columbia street, twelve rods on Missouri street, and eighty-one feet fronting on South street. I gave him the house I live in, at thirty-two hundred dollars, a lot that I got in payment for my farm, at three hundred dollars, and six thousand dollars cash in hand, one thousand dollars on the first day of July next, one thousand dollars in six months, six hundred dollars in one year from to-day. I have had a deed made out to you for the property where he lives, that is, the cottage and the larger house, one hundred and forty-five feet on Columbia strect and twelve rods on Missouri street. I shall build myself a house, for my own residence, on eighty-one feet and twelve rods back, on the east side of the lot, and a house for rent on the South street eighty-one feet front. The property is now renting for eight hundred dollars per year; the property that is deeded to you is worth about eight thousand five hundred dollars, and that I shall want a deed from you in a few days to Mrs. Gaylord's children and Mrs. Chadwick's. I shall send on a deed for you to sign in a few days. The property is now in your name, and I wish you would tell your wife how it is situated now, that she would know all about it if you should be taken away; and if I should, I want that property that is deeded to you to be made over to the four children, the rents and profits to be paid them yearly for their support, and when they become twenty-one years old to have the property in fee simple, to dispose of as they please."** "I think I have bought the White property very low. It cost him sixteen thousand dollars, and as property is all the

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