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suppose no one would contend that such a representation was as to her capacity to contract; and the real case before us is not different, in any legal aspect, from such a case, although there is a difference as to the facts. It is very clear to our minds that a representation that money sought as a loan is for the use and benefit of the wife is not a representation that the wife has capacity to contract, for it is not in any sense a denial of the existence of the disability of coverture, but is merely an affirmation of the fact that the contract into which she purposes to enter is a contract for her own benefit.

Our statute and our decisions declare that a married woman may be bound "by an estoppel, like any other person." It may be doubtful whether this rule would not require it to be held that she might bind herself by a representation as to her capacity to contract; but, however this may be, it is quite clear that under this rule she is bound by a representation as to the character of the contract into which she seeks to enter, and from which she asserts she will receive a benefit. In discussing this question, it was said, in Vogel v. Leichner, supra, that "she is to be estopped, as any other person, by causing the lender to believe that a state of facts exist which does not, or that the transaction - is one thing, while in fact it is another." This docrine is fully maintained in the cases of Cupp v. Campbell, 103 Ind. 213, S. C. 2 N. E. Rep. 565, and Orr v. White, 106 Ind. 344, S. C. 6 N. E. Rep. 909. In the case last cited it was said: "She may now be bound by an estoppel in pais, like any other person. Such an estoppel can only be predicated upon a wrong. It cannot exist if the person dealing with her either knew the facts, or was ignorant from a failure to inquire, unless he was misled by the misrepresentations of the wife." It would nullify our statute, and render meaningless our decisions, to hold that a married woman cannot estop herself by a representation as to the character of the contract into which she invites another to enter, and upon the faith of which the person with whom she contracts has parted with money, or some other thing of value; and this is a result which it is our duty to avert.

It is true that there can be no estoppel where there is no fraud, but there may be fraud although there was no preconceived design to mislead or deceive. The fraud consists in the denial of what was previously affirmed. Anderson v. Hubble, 93 Ind. 570; Pitcher v. Dove, 99 Ind. 175; Continental Bank v. National Bank, 50 N. Y. 575; Blair v. Wait, 69 N. Y. 113.

In this instance, Mrs. Ward, having solemnly sworn that the loan which she asked was for her own use and benefit, cannot, without a grave wrong, affirm that what she thus represented was not true. It would violate all principles of justice to permit her to deny what she had asserted, and by so doing entail loss upon one who in good faith relied upon her representations, and made the loan she asked. Tested by the principles which we have stated, the reply was unquestionably good.

The special finding states, among others, these facts: That Mrs. Ward and her husband agreed that her property should be mortgaged to secure $3,000 for the use of the husband in the business in which he was then engaged, and that the purpose of obtaining the loan was to furnish the husband with that sum of money; that the husband made application for the loan in writing, giving the names of the borrowers as Mary and Patrick Ward, but signing his own name to the application; that, at the time this application was presented, Patrick Ward represented that the money was desired by his wife for her separate use, and, on being informed by the appellee's agent that, if the mortgage was to secure the debt of any one else than his wife, the mortgage would be void, he stated that he and his wife would make oath that the mortgage was not made to secure the debt or liability of Patrick Ward, or any other person; that the husband and wife did make and present to the appellee's agent an affidavit that the mortgage was not executed as security for the debt or liability of Patrick Ward, or any other person; that appellee had no

knowledge whatever that the purpose of the loan was to obtain money for Patrick Ward, or any other person than Mary Ward; that the agent had no other means of obtaining knowledge of the purpose for which the loan was sought, nor of the use to which the proceeds of the loan were applied, except the statements of Mr. and Mrs. Ward; that the agent relied on such statements, and believed that the loan was for the use and benefit of Mrs. Ward, and that the mortgage was not executed as a security for the debt or liability of the husband, nor any other person. To the conclusions of law stated on the findings the appellant reserved exceptions.

Much that has been said in discussing the sufficiency of the reply applies to the questions presented by the special finding, and we shall not again travel over the ground embraced in that discussion, but shall confine our attention to such phases of the legal question as have not been considered.

It is contended that, as between husband and wife, the contract was one of suretyship, and that, as this was the actual contract, the mortgage was void, because it does not appear that the appellee was ignorant of the contract between Mr. and Mrs. Ward. This argument rests on a mistaken view of the facts stated in the special finding; for it is there stated in strong and clear terms that the appellee believed that the money was for the use of Mrs. Ward, and it is also stated that, if the appellee's agent "had not placed full reliance on the truth of the statements" of Mr. and Mrs. Ward, "the loan would not have been made," and that the appellee had no knowledge whatever that the purpose was to obtain money for the said Patrick Ward."

It is asserted that the estoppel for which the statute provides does not extend to the conveyance of land, either by deed or mortgage. But we can find no words in the statute which warrant this assumption. On the contrary, the language employed in the statute is very broad; for the provision is that "she shall be bound by an estoppel in pais, like any other person." The decisions to which we have already referred apply this statutory provision to such cases as the present, and it is impossible not so to apply it without completely overthrowing all rules of construction. Here there is a conveyance, in which the husband has joined, and, unless it was made for a purpose prohibited by statute, it is valid; otherwise invalid; so that the sole question is this: Is the wife estopped from asserting that the conveyance was made for the purpose interdicted by statute? If conduct can in any case estop a married woman, it surely must do so in this case; and we hold that by her conduct she is concluded from asserting that the mortgage was executed as a security for the debt of her husband.

It is not material that there was a secret agreement between the husband and wife, for the appellee could not be prejudiced by an agreement of which it had no notice. The question is not, what facts were known to the mortgagors? but what facts did the appellee have knowledge of, or ought, under the circumstances, to be charged with having knowledge of? It is true that the appellee, having notice of Mrs. Ward's coverture, was bound to inquire whether she had capacity to make the contract; but, when reasonable care and diligence are exercised, the party contracting with the married woman may rely upon her representations. Cupp v. Campbell, supra. Here reasonable care and diligence were exercised; for no other person than the married woman could so well inform the lender what she intended to do with the money obtained upon the mortgage, and there were no circumstances indicating that her representations were untrue, or even subjecting them to suspicion. It is the general rule that a creditor is not prejudiced by an agreement between his debtors, constituting one of them a surety, unless he has knowledge of the agreement. McCloskey v. Indianapolis, etc., Union, 67 Ind. 86; Gipson v. Ogden, 100 Ind. 20, and cases cited. This general rule cannot, in its full force, be applied to contracts made with a married woman by one who has knowledge of her coverture; but it does apply in so far as to protect him where,

after reasonable care and diligence, he has ascertained that the contract is one which she may execute.

Counsel couple together the motion for a new trial and the motion for a venire de novo, and discuss several questions, assuming that they are presented by one or both of the motions. We shall adopt the method of counsel, and consider the questions without inquiring into the propriety of the method in which they are presented.

It is complained that one of the paragraphs of the findings of the court is insufficient because it asserts that the court is unable to determine to whom the check given for the proceeds of the loan was made payable. This was utterly immaterial, and it was not necessary to make any statement at all upon that subject. No matter to whom the check was made payable, if the loan was made to the wife the mortgage is valid. The manner in which the check was drawn might have furnished some evidence as to the person to whom the loan was actually made, but it was not an inferential fact entitled to a place in the special finding. Like surplusage in pleadings, such an immaterial finding does not vitiate.

It is, perhaps, true that in one of the paragraphs of the special finding the court made a mistake in giving the date of the note and mortgage, but other portions of the finding clearly show that this was a mere clerical error. At all events, it was not, as the whole record plainly shows, an error that prejudiced the substantial rights of the appellants, and it is only substantial errors that entitle parties to a reversal.

Questions as to the sufficiency of the evidence to sustain the special findings are made and argued, but we need do no more than say that there is evidence sustaining these findings upon all material points, and refer to the rule that in such cases this court will not disturb the findings. Judgment affirmed.


No estoppel can arise when the question is one as to capacity to contract, City of Parkersburg v. Brown, 1 Sup. Ct. Rep. 451; Folds v. Allardt, (Minn.) 29 N. W. Řep. 201; but, when the question is as to the nature of the contract, a married woman may estop herself, like any other person, Orr v. White, (Ind.) 6 N. E. Rep. 909; Cupp v. Campbell, (Ind.) 2 N. E. Rep. 565; Marsh v. Thompson, (Ind.) 1 N. E. Rep. 630; Vogelv. Leichner, Id. 554; Godfrey v. Thornton, (Wis.) 1 N. W. Rep. 362.

As to what is essential to an estoppel, see Johnson v. Connecticut F. Ins. Co., (Ky.) 2 8. W. Rep. 151, and note; Quick v. Milligan, post, 392; Richey v. Merritt, post, 368.

(108 Ind. 382)

LYLES v. LESCHER and others.

(Supreme Court of Indiana. December 8, 1886.)


A deed was executed by Joshua Lyles in June, 1871, in which the grantees were named thus: "To Isaac Lyles and Anna Lyles' heirs." Possession of the lands was taken under it by Isaac and Anna Lyles, who were husband and wife, and held by them jointly until the death of Isaac. After his death possession was held by Anna, and the land was subsequently sold by her to parties who purchased in good faith, paid the purchase money in full, and entered into possession. Held, that the acts done under the deed were such as gave it a construction, and estopped Joshua Lyles to aver that it did not divest him of title to the land described in the deed.1

Appeal from circuit court, Gibson county.

McCullough & Miller, for appellant. M. W. Fields and J. M. Ewing, for appellees.

ELLIOTT, C. J. In July, 1871, Joshua Lyles and his wife executed a deed which, omitting the formal parts, reads thus: "This indenture witnesseth,

18ee Ward v. Berkshire Life Ins. Co., ante, 361; Quick v. Milligan, post,; Richey v. Merritt, post, 368.

that Joshua Lyles and Copatrick Lyles, his wife, of Gibson county, in the state of Indiana, convey and warrant to Anna Lyles and Isaac Lyles' heirs, of Gibson county, in the state of Indiana, for the sum of four hundred dollars, the following real estate in Gibson county, Indiana, to-wit, the west half of the west half of the south-west quarter, of section number twenty-five, in township number one, south of range twelve west." Isaac Lyles was the son of the grantors, and Anna was Isaac's wife. After the execution of the deed, the grantor himself caused it to be recorded, by delivering it to the recorder on the day of its execution for record. Both Isaac and Anna Lyles were living on the land at the time the deed was executed, and had three children then living. No consideration was paid to the grantors for the conveyance, but possession was held by the grantees. Isaac Lyles died in 1876, and after his death his widow, Anna Lyles, conveyed the real estate to John J. Lescher, who devised it to his wife, Eliza J. Lescher, and died in March, 1878. Eliza J. Lescher continued in possession of the land after the death of her husband, until October, 1882, when she conveyed the land to William Lescher, and put him in possession, and he has since remained in possession, in conjunction with Jesse Lescher, to whom he conveyed an interest in the land. The facts which we have given in an abridged form are stated in a special finding, and upon them this conclusion of law was stated by the court: "The plaintiff has no title to the land."

One of the controlling questions in the case is as to the effect of the deed of July 1, 1871, upon the appellant's claim to the land, for, if it divested him of all title, it is not material to inquire what is the character of the estate vested in his grantees. If the appellant has no title, his action to recover the land was justly defeated. The contention of the appellant's counsel is, that as no grantee is named, the deed is void. We concur with them that where no grantee is named, or when the one named is not in being, the deed is not valid. Harriman v. Southam, 16 Ind. 190. It has also been held that a deed to the heirs of a person in life is void for uncertainty, for the reason that no one can have heirs during his life-time. Hall v. Leonard, 1 Pick. 27; 3 Washb. Real Prop. (4th Ed.) 266. Our own court has, upon the concession of counsel, assumed this to be the rule, although, as it is evident, without very careful examination; for the case of Morris v. Stephens, 46 Pa. St. 200, relied on, has been overthrown, and the case of Hunter v. Watson, 12 Cal. 363, cited by Washburne, is not in point, because, when the deed in that case was made, the grantee named was dead, and it was held that a deed to a dead man was a nullity. Winslow v. Winslow, 52 Ind. 8. In speaking of the case of Morris v. Stephens, in a subsequent case, the court said: "The reliance of the court below, and of this court on the former occasion, was on the case of Hall v. Leonard, 1 Pick. 27, a case which in its turn rested upon what is laid down in Perkins, par. 52, that a grant to the heirs of a person in being is void, as there are no persons in esse who can take under that description. If the learned judge of the supreme court of Massachusetts, who delivered that opinion, had noticed that this rule from Perkins was predicated of incorporeal hereditaments, which lie only in grant, and were not susceptible of livery of seizin, he would not have misled us into applying it to a conveyance of land here in Pennsylvania, where registry stands in place of livery." Huss v. Stephens, 51 Pa. St. 282. The case from which we have quoted was expressly and very emphatically approved in Stephens v. Huss, 54 Pa. St. 20.

It was held in Hogan v. Page, 2 Wall. 605, that an instrument of conveyance, called a confirmation, which granted land to the "representatives of Auguste Conde," was valid. It therefore seems doubtful whether the law is as the appellant assumes it to be, and as it is conceded to be by the appellees; but we will not now attempt to decide that question, and shall assume, without so deciding, that the law is what counsel agree that it is.

Appellees' counsel, assuming that if the deed is to the heirs of Anna and Isaac Lyles jointly, it is void, contend that this is not a just construction, but that the proper construction is that it is a grant to Anna Lyles, and to the heirs of Isaac Lyles. This contention can not prevail. The deed, on its face, purports to be, and is, prima facie, a grant to the heirs of Anna Lyles and Isaac Lyles jointly. No other construction can be placed upon it, looking alone to the words employed, without directly violating the plain and wellknown rules of grammar. To make the deed properly, and fully express what the appellees claim, would require us to supply a punctuation mark and an additional word. This we cannot do, on the basis furnished by the language of the deed alone.

The remaining inquiry is, whether the acts of the parties gave such a construction to the deed as should protect the title in the hands of bona fide purchasers. It appears that possession was held by Anna and Issac Lyles during the life of the latter; that after his death it was held by Anna, and thenceforth by her immediate and remote grantees. It appears, also, that the grantor himself caused the deed to be placed on record. These acts, in our judgment, gave a construction to the deed which makes it effectual as a conveyance. As we have said, a change in the punctuation by adding a single mark, and one word, would make the deed mean exactly what the acts of the parties have construed it to mean; that is, that it divested the appellant of title; and we think their construction, as evidenced by their conduct, should prevail, at least, as against intervening third parties. It is said to be "a rule, in reading and construing deeds, that no regard is had to punctuation, since no estate ought to depend upon the insertion or omission of a comma or a semicolon." 3 Washb. Real Prop. 628. It is also a familiar doctrine that, where the acts of the parties have placed a construction upon a contract, the court will give effect to the contract as the parties have construed it. Johnson v. Gibson, 78 Ind. 282, and authorities cited on page 284; Reissner v. Oxley, 80 Ind. 580; Willcuts v. Northwestern Ins. Co., 81 Ind. 300, see page 311; Etna Life Ins. Co. v. Nexsen, 84 Ind. 347; Franklin Life Ins. Co. v. Wallace, 93 Ind. 7; Vinton v. Baldwin, 95 Ind. 433; City of Indianapolis v. Kingsbury, 101 Ind. 200, see page 212.

In holding that the acts of the parties performed under a written contract are ádmissible for the purpose of ascertaining the construction placed upon it, there is no encroachment upon the rule that contemporaneous parol evidence is not admissible to vary a written instrument, for acts done in execution of the contract are subsequent in time to the execution of the instrument, and different from mere verbal statements. In this instance the acts of the appellant, in causing the deed to be placed of record, in suffering possession to be maintained under the deed, and in permitting the land to be sold by the grantee as an owner, is utterly incompatible with the claim now asserted, and is invincibly hostile to the theory now advocated. After all these acts, and after the lapse of so many years, he cannot, in justice, be permitted to affirm that the deed did not mean what his acts have so unequivocally asserted that it did mean.

Mr. Broom, translating a fundamental maxim, says: "A liberal construction should be put upon written instruments, so as to uphold them if possible, and carry into effect the intention of the parties." Broom, Leg. Max. *540. Another author says: "The law, fortunately, is far from being strict in requiring any great accuracy or precision in respect to what is written, so far as the rules of grammar or orthography are concerned." 3 Washb. Real Prop. 218. By another writer it is said: "Where a deed cannot operate in the may intended by the parties, it will be construed so as to operate in some other way if possible." 2 Greenl. Cruise, 601, § 33. Here a little insignificant change, nothing more, perhaps, than the rejection of the sign of the possessive case, would make this deed operate as the grantor, by his acts, certainly

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