Rensselaer Republican, Volume 21, Number 14, Rensselaer, Jasper County, 6 December 1888 — MATTERS OF LAW. [ARTICLE]

MATTERS OF LAW.

Recent Decisions of the Indiana Sn- , jireme Court. Where a married woman has joined her busband in the execution of a note and mortgage on his real estate to indemnify an indorser or surety upon the note or debt of her husband, or of him and others, she may, in the event of a suit to foreclose the mortgage, avail herself of a valid defense, legal or equitable, to protect or prevent the sale of her inchoate interest in such real estate. under such mortgage, should she survive her husband or should his title become vested in a purchaser at a judicial sale of the real estate under the mortgage. Hence, in such a suit, she nay set up an alteration of the note with the copsent of the mortgagee, and without her consent such an alteration releases her inchoate interest. But, she not being a party to the note, an extension of time of payment without her consent does not release her inchoate interest or in any manner affects her rights. (2) Where the mortgage sued on contains a covenant by the mortgageor to pay the sum of money thereby secured, the six years’ statute of limitations is not a defense. Appellee recovered a judgment for damages against the city for personal injuries sustaned by him by the failure of the city to keep one of its greets safe for ordinary travel. Held: That knowledge on appellee’s part that there was a defect in the street did not of itself establish contributory negligence. While the plaintiff knew of an inequality in the street the evidence falls to show that he knew that it made the street dangerous. It can not, therefore, as a matter of law, be declared that he was guilty ' of contributory negligence. (1) An express trust in land, unless declared by a writing duly signed, can not be enforced. (2) Where tne owner of real estate, without contemporaneously declaring a valid trust, makes a voluntary conveyance to another in pursuance of an oral or imperfect agreement that the latter shall reconvey to the owner, who orally agrees to hold for the benefit of or to convey to some third persons, upon whom the owner desires to confer the property as a gift, there is no resulting trust enforceable by the proposed donee. (3) A trust will not be created by equitable unless frauds has intervened and it becomes necessary to prevent a failure of justice. (1) If a statement made out of courtis receivable with a statement made on the fitness stand, the former will not be received to impeach. (2) The instructions upon the subject of insanity produced by the voluntary and habitual use of intoxicating liquor were substantially correct and applicable to the evidence. (3) The appellant was convicted for assault and battery with intent to kill. The assault was perpetrated upon a lewd woman with whom he had been associating, to the neglect aiyl abandonment of his wife and children. There are no errors in the record s which prejudiced his substantial rights, and, this being so, section 1,891, R. S. 1881, forbids a reversal. ’’ (1) Under‘section 609, R. S., 1881, judgments on bonds payable to the State bind the real estate of the debtor of the commencement of the action. A surety is a debtor within the meaning of this section. (2) The filing of an amended complaint, unless it sets vp a new cause of action, or new matter in-, volvingthe statute of limitations, relates back to the filing of the original complaint. Hence, land disposed of by a surety in an official bond after the filing of the original comnlaint, hut before the filing of the amended pleading, is bound bv a judgment rendered upon the latter. The omission frpm the amended complaint of a superfluous party plaintiff is not material.