TENDER.
See PLEADING, 25.

TESTIMONY.

See PRACTICE, 4.

TIME.

Computation of-Sheriff.—Custody of
City Prisoners.-Where a city, hav-
ing no prison in which to confine
prisoners convicted before its court
for violations of its ordinances, com-
mits them to the custody of the
keeper of the county prison, it seems
that if a prisoner is so placed in the
custody of such keeper a short time
before midnight and discharged a
short time after that hour, the city
cannot properly be charged with
two days' boarding therefor. City
of Indianapolis v. Parker, Sheriff.230

TOWN.

See HIGHWAY, 1, 2; PARTIES, 11.

Highway.-Vacation of.-The corpor-
ate limits of a certain town extend-
ed to and along the middle of a
county road, thirty feet in width, lo-
cated before the town was laid out.
Ield, that the board of trustees of the
town had not power under the ninth
clause of section 22 of the act for
the incorporation of towns, 1 G. &
H. 624, to vacate so much of said
highway as was within the corporate
limits. Debolt v. Carter et al...355

TREASURER.

Of county. See ESTOPPEL, 5; PRINCI-
PAL AND AGENT, 1.

TREATY.

See INDIAN TREATY.

TRESPASS.

See CRIMINAL LAW, 5, 6.

TRUST.

See HUSBAND AND WIFE, 14.

1. Widow.-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 prop-
crty so bought from B. was con-
veyed to her husband, a portion of
it was conveyed by B., by deed ab-
solute 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 in
another state, a letter written to
him by A. on the day of the con-
veyance, informing him of the pur-
chase 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 situa-
ted 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. prop-
erty very low; that it cost B. a cer-
tain sum, "and as property is ad-
vancing, it must bring that again,
but I shall not sell, 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 let-
ter, acknowledging the receipt of
the letter from A., and saying that
C. had told his wife about the ar-
rangement 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. Sub-
sequently, 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 fec 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 on 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. Ield, 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. Gaylord et al. v. Dodge.......

......41 2. 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.... Ibid. 3.

Voluntary Conveyance.—A deed of conveyance of real estate is good between the parties thereto without any consideration. Mc Caw et al. v. Burk et al..........

56 4. Same.-Where a husband voluntarily conveys real estate to his wife or a father to his child, no trust arises in his favor, but the presumption is that the conveyance is intended as a provision or advancement. This presumption is not conclusive. The onus of removing it is upon him who insists that a trust exists... Ibid. 5. Same. Marriage.--The owner in fee of certain real estate conveyed the same in fee, his wife joining in the deed, to his brother, who, having received the title for such purpose, immediately conveyed in fee to the wife and minor daughter of the original grantor. Both deeds were voluntary, the former expressing a consideration in a certain sum,

the latter none. After the deeds were recorded, the daughter intermarried with one who had knowledge of the deeds and believed her to be the lawful owner of the land so conveyed to her. The daughter died, leaving one child, the only issue of such marriage; and the child died, leaving its father its sole heir at law.

Held, in a suit by the surviving father of such child for partition, the original grantor still retaining possession, that no trust resulted to such grantor under the deeds.

Held, also, that the marriage of the daughter made her a purchaser for a valuable consideration, and it would be a fraud upon her husband to withdraw the estate passed to her. Held, also, that the plaintiff was entitled to possession of the land so conveyed to said daughter.............. Ibid. 6. Practice.-Fraud.-Resulting Trust. Where a conveyance of real estate, for a valuable consideration, is made to one person, the consideration being paid by another, for the purpose of defrauding the creditors of the latter, such a creditor, may, under the code, have a complete remedy in one action: a judgment may be obtained against the debtor and the real estate in question subjected to the payment of the judgment. Lindley et al. v. Cross et ux..

7.

106

Resulting Trust.-Number of Witnesses.-Suit by A. against B. and C. for possession of certain real estate purchased by the plaintiff at sheriff's sale on an execution in favor of the plaintiff, issued upon a judgment against B.,the legal title at the time of such sale standing in the name of C., to whom it had been conveyed by D. The plaintiff claimed that B. had paid the purchase-money, and, to defraud his creditors, particularly the plaintiff, to whom he was then largely indebted, procured the conveyance to be made by D. to C. It was claimed in defense, that in making the purchase B. acted as the authorized agent of C., who was not present, and that B. advanced the purchase-money in pursuance of an agreement with C. by which he was to so advance it as a short loan to C., who soon afterwards repaid the money. On the trial, B. testified to this

effect, and C. testified to the same
facts, except as to the fact of the
loan, concerning which the court
refused to allow him to testify.
Held, that this refusal was error. Ilub-
ble v. Osborn.......
249
8. Same.-Fraud.-Presumption.-In
such suit the court instructed the
jury, that if B. was indebted to
plaintiff in a large sum at the date
of the deed from D. to C., and B.
contracted for and paid for said land
out of his own moneys, and had the
same conveyed by deed to C., "such
conveyance is presumed fraudulent
as against the plaintiff, and a trust
results in favor of the plaintiff to
the extent of his just demand, un-
less the fraudulent intent is dis-
proved by the evidence before you."
Held, that the instruction was cor-
rect...
.......Ibid.

9.

Same.-Evidence.- Admissions.-
The admissions and declarations of
the person paying the purchase-
money, made after the conveyance to
the other person, are not admissible
in evidence against the latter... Ibid.
10. Parties.-Plaintiff.-Agent.-One
who contracts merely as the agent
of another, and has no personal in-
terest in the contract, is not the
trustee of an express trust within
the meaning of the statute, and can-
not, under the code, sue on such con-
tract in his own name. (Code, secs.
3, 4.) Rawlings v. Fuller.........255
11. Replevin.-House Treated as Per-
sonalty.-A., being the owner of a
certain town lot on which was a
dwelling house, built another house
adjoining the former and perma-
nently attached thereto, but stand-
ing in a street of the town, though
he supposed that it was upon a lot.
Becoming financially embarrassed,

debt that A. owed him. C. there-
upon wrote to A., stating the prop-
osition made by said agent, and
offering to furnish the money and
buy the house for A.'s benefit. A.
replied, advising C. to buy the prop-
erty and sell it again, pay himself
out of the proceeds, and apply the
balance to the payment of A.'s
debts. Subsequently, C., being the
owner of the lot, purchased the
house of said agent, paying him
therefor the amount the agent had
bid for it and a certain sum for back
rent, C. furnishing the money, which
A. never refunded or offered to re-
fund. C. continued to occupy the
house, always claiming it as his own,
till his death, when his sole heir
sold the lot and the house in the
street by two separate and distinct
sales, to D. Suit by A. against D.
to recover possession of the house
in the street as personal property,
the above facts appearing in evi-
dence, but there being no written
evidence of title to the lot in C. or D.
Held, that, in the absence of a convey-
ance to C., in terms sufficiently com-
prehensive to cover the house as ap-
purtenant to the lot, it was reason-
able to presume that it was properly
treated by the parties as personalty.
Held, also, that there was no trust in
favor of A.

Held, also, that a subsisting indebted-

ness of C. to A. growing out of a
partnership which had existed be-
tween them long prior to the pur-
chase of the house by the former,
could not be deemed a refunding by
A. of the money paid by C. for the
house. Foy et al. v. Reddick.......414

TURNPIKE.

tion was issued on a judgment
which had been rendered against
him in favor of B., by virtue of
which the sheriff levied on and sold
said house in the street as personal
property, C. being in possession
thereof at the time of the sale. Af-
terwards, the agent of B., who had
bid off the property for B., informed
C., that by B.'s direction he would let
C. have the house for A. if C. would
pay the amount it had been bid off
at, and also pay said agent a small

3.

Same.- Injunction. If such a route is designated in its organization that less than five miles of road is to be made, the company has no power to do anything; and the collection of taxes for the construction of the road may be enjoined... Ibid. 4. Same.-Estoppel.-A signer of the petition to the County Commissioners for the organization of such a pretended corporation, who has not become a member of it, is not estopped from denying the legality of the organization in a suit to enjoin the collection of such taxes..... Ibid.

U

UNSOUND MIND.,

See CONTRCT, 4, 5; INSANITY.

USER.

Highway.-A county road was located by the board of county commissioners, in 1840, over certain lands, the location being defective for not specifying the width of the highway; but, in pursuance of the order of the commissioners, the supervisor of the proper road district opened and improved the road, thirty feet in width, as a public highway, and it was continuously thereafter kept, maintained, and used by the public as a public highway, in the same place and of the same width, with the knowledge and consent of the owners of said lands, for more than twenty years.

Held, that these facts showed the existence of a public highway by Debolt v. Carter et al......355

user.

USURPATION.

See OFFICE AND OFFICER, 3, 4, 5.

USURY.

See INTEREST, 3. V VACANCY.

See COURT OF COMMON PLEAS, 2; OFFICE AND OFFICER, 3, 4, 5.

VARIANCE.

See CRIMINAL LAW, 10, 54.

VENDOR AND PURCHASER.

See CoNSIDERATION, 2, 3; GUARDIAN AND WARD, 6, 7, 8; MORTGAGE, 1; PARTITION OF LANDS, 2; VOLUNTARY CONVEYANCE, 1, 2, 3.

1. Descent.-Surviving Wife.-Mortgage. A man during marriage purchased certain land, which he entered upon and improved, and of which he received from his vendor a deed of conveyance in fee simple, which was lost, misplaced, or destroyed by the grantee, without having been recorded; and, with his consent, another deed was made to his son by said vendor. Afterwards the father and son executed a mortgage of the land, in which the wife of the former did not join. The father, son, and said wife resided as one family upon the land and cultivated it from the time of said purchase till the father and son died, leaving said wife surviving and said mortgage unpaid.

2.

..265

Held, that the surviving wife was entitled to one-third of the land in fee simple as against the mortgagee seeking to foreclose his mortgage. Sutton v. Jervis......... Pleading.-Promissory Note.—Incumbrance.-Suit by A., the assignee, against B., the maker, upon a note, which by its terms was to be paid when B., using due diligence, should collect another certain note given by C. to D., the payce of the note in suit, and assigned by D.to B.,the complaint alleging, that the defendant had collected said note on C. Answer in three paragraphs: 1. Admitting the execution of the obligation sued on, but denying that the defendant had collected the C. note. 2. That the husband of the payee of the note in suit was indebted to the defendant in a certain sum mentioned; that the note on C. was given to the defendant in payment of said indebtedness, and the obligation in suit was given for the residue of said note on C. in excess of said indebtedness; that at the maturity of C.'s note he paid thereon to the defend

ant a sum mentioned, being a certain amount in excess of said indebtedness; that before the commencement of this suit defendant tendered to plaintiff said excess, being less than the note in suit, which plaintiff refused to accept; and that defendant had ever since been ready, &c. 3.2. That the C. note was given in part consideration for a tract of land sold and conveyed to C. by D. by warranty deed; that D. derived her title to the land from her husband, without consideration; that a judgment rendered in the United States

District Court against her said husband became a lien on said land while said husband was seized thereof; that C., after maturity of his note, tendered to the defendant, in full payment thereof, a receipt for the balance due on said judgment, from the clerk of said court, and also a tax receipt from the treasurer of the proper county which was filed as a part of the answer; that the residue of the C. note was fully paid to the defendant at maturity; that upon receiving said receipts and said residue, defendant tendered to plaintiff the full amount of the obligation in suit, less the amount of Said receipts, which plaintiff refused to accept; and that defendant has ever since been ready, &c. Held, that the second paragraph, for failing to deny that C. had paid the whole sum due on his note before the commencement of this action, was bad on demurrer.

Held, also, that the third paragraph, for not averring that the balance of the judgment in the District Court was paid by C., was bad on demurrer; and if regarded as an argumentative denial of the allegation of the complaint, that the defendant had collected the C. note, it might nave been stricken out on motion, but the proper result having been attained by demurrer, there was no available error. Picken et al. v. Whisler........... ..402

VENUE.

See CRIMINAL LAW, 12, 13.

1. Change of.-Rule of Court.-A rule of the circuit court requiring an application for a change of venue

3.

on account of local prejudice to be made at least one day before the day for which the cause is docketed for trial, is reasonable and within the express power of the court to adopt. The Jeff., Mad., & Ind' polis R. R. Co. v. Avery..... ........277

Same.-Where it is clearly made to appear, that some act performed within the excluded time has excited such prejudice, or that such feeling already existing was undiscovered by reasonable effort, the case presents such special circumstances as to exclude the application of such rule intended for general convenience..... Ibid.

Criminal Law.-Evidence.-If in a criminal case there be no evidence that the offense charged was committed within the jurisdiction of the court, there should be an acquittal. Clem v. The State........

VERDICT.

480

VOID AND VOIDABLE.

2.

VOLUNTARY CONVEYANCE.

3.