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McCaw and Others v. Burk and Another.

gave birth to a child, the issue of their marriage; that Eliza died April 30th, 1863, and the child died May 13th, 1863, leaving the father, Burk, its sole heir at law.

William demurred to this paragraph of the reply. The demurrer was overruled.

The case was tried by the court, finding as follows:

“1. That the deeds from William McCaw and wife to Nelson McCaw and from Nelson McCaw and wife to Maria, Eliza, and Nancy McCaw, for the premises in controversy, do not upon their face import a trust in favor of said William.

“2. That said deeds were not executed as a mortgage.

“3. That said deeds were voluntary;—that from Wm. McCaw to Nelson expressing a consideration of $3,000, the other expressing none.

“4. That about two years after the execution and recording thereof, the plaintiff Burk intermarried with Eliza, one of the grantees; that about one year after said marriage, a child was born, the issue thereof; that soon after the birth of said child, Eliza, the mother, died; and soon after her death, and before the commencement of this suit, the said child died also.

“5. That Nelson McCaw is the brother of William, Maria the wife of William, and Nancy and Eliza his daughters; the said Nancy and Eliza being infants at the time of the execution of said conveyances. .

“6. That William McCaw has been in possession of eighty acres of the land ever since the execution of said conveyances, and the plaintiff Burk and wife bare not resided upon or had possession of any portion of the premises in controversy since their marriage. That the plaintiffs are entitled to one equal third part of the land described in the complaint whereof partition is claimed.”

The appellants moved for a new trial; the motion was overruled, and they excepted.

The evidence is made a part of the record by a bill of exceptions.

McCaw and Others v. Burk and Another.

There is a clear conflict in the evidence as to whether the deeds under which the appellees claim title were executed as a mortgage.

This court would not reverse a judgment on the weight of the evidence. It is, however, but just to the learned judge who tried this case in the court below, to say that we have carefully considered the testimony and are entirely satisfied with the finding.

There are three grounds upon which the appellants claim a ruling in their favor. The first turns upon a question of fact, which we have already noticed. The second is, that the deed from William to Nelson and that from the latter to Maria and the two daughters being voluntary, and the latter expressing no consideration, Maria, Eliza, and Nancy only took the land in trust for William McCaw; consequently, that there was no estate in Eliza descendible to Burk, and he is without interest in the premises. The third is, that the deeds being voluntary, and the grantor, William, having continued in possession, the court can not enforce them by giving the grantees possession.

There is a consideration named in the deed from Wil. liam to Nelson. This deed passed the title out of the former and vested it in the latter, subject only to the trust assumed of passing it over to the wife and daughters. Indeed, it was but one transaction. Nelson McCaw was the mere conduit through which the title passed from William McCaw to his wife and two daughters.

Whatever the rule may be as between parties not bearing the relationship of husband and wife or parent and child, it is clear that when a husband voluntarily conveys to his wife, or a father to his child, no trust arises in his favor, but the presumption is that the conveyance was intended as a provision or advancement. This presumption is not conclusive. The onus, however, of removing it is upon him who insists that a trust exists.

It has been repeatedly held by this court, that a deed is good between the parties without any consideration. Ran

Compton v. Davidson and Another.

dall v. Ghent, 19 Ind. 271; Thompson v. Thompson, 9 Ind. 323; Doe v. Hurd, 7 Blackf. 510; MI’Neely v. Rucker, 6 Blackf. 391.

The third proposition remains to be considered. No aid will be given to compel the execution of a gift; but that principle does not apply to this case. Here the deeds were executed, the title passed, and only a naked possession remained in the grantor.

But independent of this, the subsequent marriage of Eliza made her a purchaser for a valuable consideration, and it would be a fraud on her husband to withdraw the estate passed to her. Sterry v. Arden, 1 Johns. Ch. 261; Brown v. Carter, 5 Vesey, 861.

The court committed no error in overruling the demurrer to the second paragraph of the reply, or in overruling the motion for a new trial.

Judgment affirmed, with costs.
S. Major, for appellants.
L. Barbour and C. P. Jacobs, for appellees.


Promissory Note.—Pleading.Bastardy. It is not a good defense to a suit

upon a promissory note given in compromise of a prosecution against the maker for bastardy, “that it was understood that if the child should be born too soon, or the circumstances would not make out a case of bastardy, the note was to be delivered up, and that the child was born eight months from the time the defendant first met the prosecuting witness;” nor is it a good answer, “that the defendant has since learned that he could prore le was not the father, but could not make such proof at the date of the com

promise." SAME.— Party Plaintiff.—It is not necessary that the plaintiff in a suit upon a

promissory note should be the legal owner thereof;—it is sufficient if he is the cquitable owner.

Compton v. Davidson and Another.

PLEADING.— Written Instrument.- Where a defense is founded upon a written

agreement, the instrument should be set out.

APPEAL from the Tippecanoe Common Pleas.

RAY, J.-Suit by appellees on a note executed to them by appellant. Answer, that said note was obtained by fraud and false and scandalous representations made by one Mary Wallace, and by her attorneys who are the present appellees; that it was alleged, that said Mary was enceinte with a bastard child, and a suit was threatened against him; that said Mary made the proper affidavit before a justice of the peace, and he thereupon executed the said note, but it was understood, that if the child was born too soon, or if the circumstances would not make out a case of bastardy, the note was to be delivered up; that said child was born within eight months from the time he first met the said Mary; wherefore he demands judgment.

The answer fails to show any agreement to deliver up the note. It does not allege such an agreement, but simply that it was understood it should be delivered up. By whom was it understood? Nor does the fact that the child was born within eight months acquit him of the liability. The court properly sustained a demurrer to the paragraph.

A second paragraph of answer denied that the plaintiffs were the legal owners of the note in suit. If they were the equitable owners it was sufficient.

A third paragraph alleges, that the note was given under duress and threats of public scandal and disgrace, and that one Mary Wallace would bring an action in bastardy, and would make an affidavit that she was pregnant with a bastard child and that the defendant was the father; that she did so swear; and that he had since learned that he could prove he was not the father, but could not make such proof at the date of the compromise. A demurrer was sustained to this paragraph. There was no error in this. The answer does not deny the condition of Mary Wallace, or that circumstances were against his defense when he

Vogel v. The State. Rissel v. The State.

compromised. The case seems to have been one for compromise, and his answer may be, perhaps, properly styled a negative pregnant.

A fourth paragraph alleged a written agreement executed at the date of the note, by which said Mary Wallace agreed to leave the city of Lafayette and remain away from there, and her failure to comply with the written contract. The agreement is not copied. As that was the foundation of the defense, it should have been set out.

The court properly sustained a demurrer to the paragraph. Judgment affirmed, with five per cent. damages and costs. A. J. Roush, for appellant.

VOGEL V. THE STATE. Three Cases.


CRIMINAL LAW.-Information.-Arrest of Judgment.-An information which

is so uncertain that upon a plea of guilty the court cannot know what pun

ishment it may affix, is bad on motion in arrest of judgment. SAME.- Sunday.-Liquor Law.-Information charging, that "A., at, &c., be

ing over fourteen years of age, on, &c., that being the first day of the week, commonly called Sunday, was found unlawfully at common labor and engaged in his usual avocation, to wit, selling and dealing out to B. two gills

of whiskey, and receiving therefor twenty cents," &c. Held, that as it did not appear from the information whether or not the de

fendant had a license, it was bad on a motion in arrest based upon the ground that it did not state facts sufficient to constitute a public offense.

APPEAL from the Dearborn Common Pleas.

FRAZER, J.—These cases are exactly alike. The information charges, that “A., at, &c., being over fourteen years of age, on the 17th day of February, 1867, that being the first day of the week, commonly called Sunday, was fonnd unlawfully at common labor and engaged in his usual avoca

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