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ant, was not error.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 250-253; Dec. Dig. 124(1).]

to show that the goods purchased were, liable, being of unsound mind, denial of his mofound in appellant's possession in Indiana tion for new trial directed to the entire judgHarbor, Ind., where appellant was residing ment, including that as to the insane defendwhen suit was brought. The contract of sale was properly received in evidence, and this court cannot reverse the judgment of the trial court on the sufficiency of the evidence, since there is some evidence to support every material fact essential to appellee's recovery.

[6] Under the facts of the case appellant cannot insist that the terms of the contract cannot be enforced against her, because she did not execute the original contract of sale. On the contrary, when the property was found in her possession, and default had occurred in the payments, her right to retain the property under such original contract was terminated; and, since the contract of sale provided against the removal of the property from the domicile of the purchaser, when appellant removed the same into this state, without the consent of the owner, her act amounted to a conversion of the property and her possession in this state from that time became wrongful, and no demand was necessary before bringing the A demand is not necessary except where a party has possession of the property of another lawfully, and a demand will make the possession unlawful. Cox v. Albert, 78 Ind. 241; Deeter v. Sellers, 102 Ind. 458, 1 N. E. 854; Haffner v. Barnard, 123 Ind. 429, 24 N. E. 152; Hoover v. Lewin, 57 Ind. App. 367, 105 N. E. 400. Judgment affirmed.

suit.

(62 Ind. App. 476)

CROUCH et al. v. SHANTZ et al.
(No. 9529.)

Appeal from Superior Court, St. Joseph County; George Ford, Judge.

Action by Jeptha Crouch and others against J. Milton Shantz and Mary E. Shantz. Judgment in favor of defendants for their costs and that plaintiffs take nothing, and order overruling motion for new trial, and plaintiffs appeal. Appeal dismissed.

Martin A. Quinn, of La Fayette, Farabaugh & Hagerty, of South Bend, and Proctor & Cawley, of Elkhart, for appellants. Lenn J. Oare, Russell W. Geyer, and Ernest M. Morris, all of South Bend, for appellees.

HOTTEL, P. J. Appellants filed a complaint in the court below to recover on four promissory notes and to foreclose a mortgage given to secure them. Appellee J. Milton Shantz filed an answer of general denial and

three paragraphs of counterclaim. A reply of three paragraphs was filed. Appellee Mary E. Shantz was found to be insane, and a guardian ad litem was appointed and filed for her an answer in three paragraphs, the first of which was a general denial. To the second and third paragraphs of such answer there was a reply of general denial.

A trial by the court resulted in a judgment that appellees recover of the appellants their costs and that appellants take nothing on their complaint. A motion for a new trial was filed against both judgment defendants and overruled. The only error assigned and relied on in this court which is not expressly

(Appellate Court of Indiana, Division No. 1. waived is the overruling of such motion. June 23, 1916.)

1. TIME 10(9)-PERFECTION OF APPEAL COMPUTATION.

A transcript on appeal, filed on the 61st day after filing appeal bond, is in time if the pre-filed on December 15, 1915, the transcript in ceding day was Sunday, under Burns' Ann. St. 1914, § 1350, providing that in computing time the last day shall be excluded if it falls on Sunday.

[Ed. Note.-For other cases, see Time, Cent. Dig. §§ 48, 52; Dec. Dig. 10(9).] 2. APPEAL AND ERROR 327(2)-PROCEDURE -NECESSARY PARTIES.

Although the mortgagee filed a written admission that one defendant mortgagor was of unsound mind, and not liable, where judgment ran in favor of defendants for costs, such insane defendant was a necessary party to the appeal in vacation under Burns' Ann. St. 1914, § 674, as to notice to parties on appeal, and failure to make her a party or give notice or furnish bond which would inure to her benefit required dismissal of the appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1795, 1814, 1831, 1834; Dec. Dig. 327(2).]

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Appellees enter a special appearance in this court and file a motion to dismiss the appeal based on the following grounds: "(1) That the appeal bond in this case was this appeal was not filed in the office of the clerk of the Appellate Court until the 14th day of February, 1916, being 61 days after the filing of the appeal bond, and that appellants have taken no steps to perfect a vacation appeal. (2) That the appellee Mary E. Shantz was a party to the judgment in the court below and that she was not named as an obligee in the appeal bond, and no steps were taken by appellants to perfect a vacation appeal."

[1] In their discussion of the first ground of the motion to dismiss, appellants concede that their appeal bond was filed in the trial court December 15, 1915, and that the transscript was not filed in the office of the clerk of this court until February 14, 1916, and that, under section 1350, Burns 1914, providing that in the computation of time in such cases, "The first day is excluded, and the last day included," such transcript was not filed until the 61st day after the filing of such bond, which they also concede would

not be in time but for the last clause of sec-ed any interest in the matter in litigation, tion 1350, supra, which provides that "if the were held to be unnecessary parties on aplast day falls on Sunday it shall be exclud- peal. Likewise parties against whom the ed." Reference to the calendar discloses that action had been dismissed in the trial court, February 13, 1916, the 60th day after and no judgment rendered against them, the filing of such bond, was Sunday. It fol- were held to be unnecessary parties on aplows that under the provisions of the statute, peal. supra, the transcript was filed in time.

In the case of Kinney v. Heuring, 42 Ind. App. 263, 85 N. E. 369, this court expressly held that, where the year of filing a transcript expired on Sunday, the filing thereof on the following Monday was in time. The case of Board, etc., v. Tinchor, etc., Co., 49 Ind. App. 221, 97 N. E. 22, is by inference, at least, a holding to the same effect.

[2] In the discussion of the second ground of appellees' contention, appellants concede that Mary E. Shantz was a party to the judgment appealed from; that she was not named as an obligee in the appeal bond, and that appellants have given her no notice of the appeal. They also, in effect, concede that every party who has an interest that the judgment appealed from be maintained is a necessary party to the appeal. They make no claim that they have made any effort to perfect a vacation appeal, and rest their claim that the appeal should not be dismissed solely upon the ground that Mary E. Shantz is not a necessary party to the appeal because she has no interest in maintaining the judgment of the lower court. They in effect concede that this contention is not supported by the judgment itself; that the record shows a judgment in Mrs. Shantz's favor; and that looking to the judgment alone she appears to be interested in maintaining it. They insist, however, that she in fact is not interested in supporting the judgment within the meaning of section 674, Burns 1914, and hence is not in fact a necessary party to the appeal. This contention is based upon the fact that at the close of their evidence in chief appellants made the following admission which is disclosed by the record,

viz.:

"It is admitted by the plaintiffs in this action that there may be a finding that the codefendant, Mary E. Shantz, was of unsound mind at the time she executed the mortgage sued on, and that therefore the mortgage has no force and effect as to her interest in the real estate, described in the complaint."

We cannot give to this admission the effect which appellants insist should be given to it. The effect of their contention is that this admission shows that they had no controversy with the appellee Mary E. Shantz, and that its effect should be the same as though they had dismissed their action against her and the judgment had been taken against her co-appellee, alone. Several cases are cited and relied on by appellants which support their contention, if we give to the admission, supra, the effect which appellants claim for it, that is to say, cases are cited in which parties, who, in the trial court, had disclaim

Appellants' mistake is made in assuming that the agreement here made should have the effect of a disclaimer or any cause of action against appellee, or the effect of a dismissal as to her, or that in the light of such admission the judgment here rendered should be treated the same as though no judgment had been rendered in Mrs. Shantz's favor. None of the authorities cited lend any support to this contention and all of such authorities by implication, at least, support the general rule that, in an appeal under the general statute providing for a vacation appeal, all parties to the judgment appealed from must be made parties to the appeal in the assignment of error and proper notice of the appeal given. For cases announcing such general rule, see Lauster v. Meyers, 170 Ind. 548, 549, 84 N. E. 1087, and cases cited; Pope v. Voigt, 49 Ind. App. 176, 96 N. E. 984. The effect of appellants' admission was simply to supply the evidence which authorized the judgment in Mary E. Shantz's favor and, such a judgment having been rendered, the record presents a case very different from what would have been presented, if as to her the action had been dismissed and no judgment taken against her.

[3] If the wording of the bond was such as to show an intention to appeal from the entire judgment, and that it in fact was intended as indemnity for both appellees, this court might so treat it; but the wording of the bond itself, and appellants' contention here in this court, show conclusively that the bond was never intended to inure to the benefit of Mary E. Shantz, and, so far as she is concerned, no bond had been given, and hence a term time appeal has not been perfected as to her. As before stated, there is no claim that any steps have been taken to perfect a vacation appeal. However, if the appeal had been perfected as to Mrs. Shantz, there could be no reversal of the judgment in this case. As before stated, the only assigned error presented by appellants' brief is that overruling their motion for new trial, and challenging the action of the trial court in in such motion appellants asked a new trial as against both appellees.

The admission entered of record above indicated, on which they rely to prevent the dismissal of the appeal, conclusively shows that as against Mrs. Shantz appellants were not entitled to a new trial, and hence no error available in this court can be predicated on the court's action in overruling such motion. Hatfield v. Rooker, 56 Ind. App. 1, 6, 7, 104 N. E. 798, and cases there cited.

For the reasons indicated, the appeal should be and is dismissed.

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The findings of fact and conclusion of law, or the substance thereof, must be set forth in appellant's brief in order to present any questions for review thereon; but, where appellee set forth a brief summary of special findings of fact and two of the conclusions of law, the objection to that extent is cured.

PLICABILITY.

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Statute of Frauds (Burns' Ann. St. 1914, § 7483) § 21, declaring that fraud shall be deemed a question of fact, applies only to actions involving fraudulent intent.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. 69; Dec. Dig. 64(2).]

3. TRIAL 395(7)-SPECIAL FINDINGS-SUF

FICIENCY.

The complaint is in four paragraphs. The first and fourth paragraphs are upon the theory of fraud; the first, that appellant George W. Dunker purposely deceived appellee, who was illiterate, as to the character of the instrument he was executing, in that appellee was lead to believe that he was executing a mortgage when in truth and in fact he executed a warranty deed. It is further alleged that the relation existing between the parties was confidential, and that appellee relied upon said appellant, who deceived him, to his injury. The fourth paragraph alleges,

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. 757(5).] 2. FRAUD 64(2) — ACTIONS-STATUTE-AP- among other things, that appellant George W. Dunker undertook to prepare a mortgage for appellee to execute, but instead thereof, prepared a warranty deed; that the relation of trust and confidence existed between the parties; and that appellee was without business experience and ignorant of the method and form employed in the conveying of real estate. The second and third paragraphs of complaint are upon the theory that at the time the deed was executed there was an agreement that it should be held as security for a debt, and that, although a deed upon its face, it was in fact a mortgage. Each of the paragraphs of complaint, other than the fourth, disclose a tender before the bringing of the suit, in the sum of $474, the amount alleged to be due appellant as money loaned appellee, and which the conveyance secured, and further that the tender was kept good, in that this amount was brought into court for the use and benefit of appellants. The first and second paragraphs of complaint both ask that the amount of the lien be found by the court, and that appellee be allowed to redeem the real estate by the payment of the same; while the fourth paragraph asks that the amount alleged to be due appellants be declared a lien on the real estate, and that the title to the real estate be quieted in appellee as against appellants, subject to the lien.

In an action to set aside a warranty deed on the ground that it was procured by fraud when only a mortgage was intended, special findings, that plaintiff requested defendant to see the holder of a mortgage and make necessary arrangements to take it up, that defendant undertook to personally furnish or procure money to take up the mortgage under an agreement that plaintiff should execute a mortgage to him on his entire parcel of land, that defendant prepared a warranty deed, knowing plaintiff's illiteracy, and that plaintiff executed the deed thinking it was a mortgage, which he would not have done had he known it was a warranty deed, the consideration being inadequate, are sufficient to support the conclusion of law that the deed was procured through fraud.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 933; Dec. Dig. 395(7).] 4. DEEDS mm 70(1) PERSON.

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VALIDITY-ILLITERATE

One taking a deed from an illiterate person is bound to observe strict good faith, and the deed is invalid where procured through misrepresentations as to its nature.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 165, 166, 172; Dec. Dig. 70(1).]

Appeal from Superior Court, Elkhart County; James L. Harman, Judge.

Action by Frank H. Calahan against George W. Dunker and others. From a judgment for plaintiff, defendants appeal.

Affirmed.

James S. Dodge and Perry L. Turner, both of Elkhart, for appellants. Merritt & Duff and Hanan, Ewbank & Hanan, all of La Grange, and Proctor & Cawley, of Elkhart, for appellee.

MORAN, J. On and prior to September 10, 1908, appellee was the owner in fee simple of 38 acres of real estate in La Grange county, Ind., and on this date he executed a warranty deed therefor to appellant George W. Dunker, which conveyance forms the basis of the litigation in this cause. This is the second time this cause has reached the Appellate Court. Calahan v. Dunker, 51 Ind. App. 436, 99 N. E. 1021.

The issues were closed by an answer of general denial addressed to each paragraph of complaint; and, on submission of the cause, the court found the facts specially and rendered its conclusions of law thereon in

favor of appellee.

It is contended by appellee that appellants' brief so far fails to comply with the rules established for the briefing of causes in this and the Supreme Court that each question sought to be presented is waived.

[1] The special finding of facts and the conclusions of law are not set forth in appellants' brief. The rules covering this infirmity require that the finding of facts and the conclusions of law, or the substance thereof, be set forth in appellants' brief in order to present any question for review thereon. Rayburn v. Williams, 54 Ind. App. 617, 103 N. E. 116. However, appellee in his brief sets out a brief summary of the special

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

finding of facts and two of the conclusions the instrument in writing, under consideraof law, and to this extent the objection rais- tion, had no intention of conveying his real ed to appellants' brief is cured. Teeple v. estate to appellant George W. Dunker, and State, 171 Ind. 268, 86 N. E. 49; Carnahan said appellant knew that appellee did not inv. Freeman, 183 Ind. 271, 108 N. E. 955. In tend to convey him the real estate and only so far as appellants seek to present under intended to execute to him a mortgage, and, the exceptions reserved as to the overruling although appellant George W. Dunker well of the motion for a new trial the insufficiency knew that he was receiving a warranty deed of the evidence to support the decision of the court, and that the decision is contrary to law, appellants' brief discloses a goodfaith effort to comply. with the rules. The questions thus presented by the briefs will be considered on their merits.

from appellee as to all his real estate, he did not so inform appellee. The mortgage indebtedness, together with all other obligations discharged by appellant George W. Dunker for appellee, at the date of the conveyance, was $474; while the value of the real estate included in the deed was $1,900.

There is no insistence on the part of appellee that the conclusions of law announced Appellants' objection to the facts as they by the court upon the facts found support in were found by the trial court is not without any manner the issue joined upon the sec- some merit; many of them are not the stateond and third paragraphs of complaint, viz., ment of an ultimate fact. The facts in refthat there was an agreement between the erence to the conduct of appellant George parties that the deed of conveyance taken by W. Dunker in procuring the conveyance of appellant George W. Dunker to the real es- the real estate to himself are, however, more tate described therein was to operate as a than bare evidentiary facts; they are in mortgage securing an indebtedness owing their nature primary facts. In this class of from appellee to said appellant. Therefore cases the existence of fraud need not be the facts found by the court in support of the issue of fraud joined on the first and fourth paragraphs of complaint are material in order to ascertain whether the conclusions of law stated by the court are warranted.

Appellants' chief reliance for reversal is that fraud is not sufficiently found by the court to warrant a recovery on such issue; that the findings of the court are evidentiary and not ultimate facts.

[2, 3] The findings that have to do with the relation the parties bore to each other at and before the execution of the deed in controversy disclose: That appellee was, at the date of the execution of such deed and for some time prior thereto, working for appellants, and that he was being pressed for the payment of an indebtedness secured by a mortgage on a 22-acre tract of his real estate. That a foreclosure proceeding was threatened, and appellant George W. Dunker knew this fact, and thereupon promised appellee he would loan him a sufficient amount of money to discharge the mortgage lien on the 22-acre tract, and appellee agreed to execute as security therefor a mortgage on his entire tract of real estate, consisting of 38 acres, and, at the request of appellee, appellant George W. Dunker made an examination of the real estate and the title to the same and learned from the holder of the mortgage that the payment of $350 would discharge the same in full. On September 10, 1908, appellant George W. Dunker caused a warranty deed to be prepared by a scrivener to him from appellee, which appellee signed and acknowledged. That appellee could not read or write, except to write his own name, which fact appellant George W. Dunker well knew, and also well knew that appellant was wholly unskilled as to the language employed in the drafting of deeds and mortgages. Appellee when he executed

found and stated in a special finding as a substantive ultimate fact, as section 21 of our Statute of Frauds (section 7483, Burns' R. S. 1914), providing that fraud shall be deemed a question of fact, has reference only to actions involving the question of fraudulent intent, where the rights of the parties depend in some manner upon some provision of the act of which the section mentioned forms a part. Gorham v. Gorham, 54 Ind. App. 408, 103 N. E. 16; Leader Pub. Co. v. Grant Trust Co., 182 Ind. 651, 108 N. E. 121; Alsmeier v. Adams, 105 N. E. 1033.

In Cotterell v. Koon, 151 Ind. 182, 51 N. E. 235, it was said:

"Where, in a pleading or special finding, fraud must be made to appear, except there be some statute or special rule to the contrary, the mere epithets are not required, nor are they facts constituting the fraud must be stated, and available."

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In McAdams v. Bailey, 169 Ind. 518, 82 N. E. 1057, 13 L. R. A. (N. S.) 1003, 124 Am. St. Rep. 240, it held that there could be nothing added to a special finding of facts in reference to fraud, unless it resulted as a necessary conclusion from the facts found. This principle permits of the drawing of conclusions as to the existence of the fraud if the conclusions necessary follow from the facts thus found. By numerous decisions of this and the Supreme Court it has been held that where the primary facts found lead to but one conclusion, or where the facts found are of such a character and nature that they necessitate the inference of the ultimate fact, such ultimate fact will be treated as found. Judah v. Cheyne Elec. Co., 53 Ind. App. 476, 101 N. E. 1039; Mount v. Board, 168 Ind. 661, SO N. E. 629, 14 L. R. A. (N. S.) 483; Nationai Surety Co. v. State, 181 Ind. 54, 103 N. E. 105.

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In Mount v. Board, etc., supra, Gillett, J., I record presents no reason for which it may speaking for the court, said: be claimed that the decision of the court is contrary to law. Therefore there was no error in overruling appellants' motion for a new trial. A correct result was reached in this cause.

"It is, however, to be recollected that, where the primary facts lead to but one conclusion, there is no occasion for a statement of the ultimate fact."

Judgment affirmed.

(62 Ind. App. 421) COCA-COLA BOTTLING CO. v. INTERNATIONAL FILTER CO. (No. 9047.) (Appellate Court of Indiana, Division No. 2. June 20, 1916.)

1. APPEAL AND ERROR
HARMLESS ERROR.

1052(2)-REVIEW

In the case at bar, as is disclosed by the facts found, appellee requested appellant George W. Dunker to see the holder of the mortgage and make the necessary arrangements with the holder to take up the same; and said appellant took it upon himself to either personally furnish the money to pay the mortgage indebtedness, or to procure the money elsewhere under an agreement with appellee that he should execute a mortgage on his entire tract of 38 acres to secure the same. Instead of carrying out this request, said appellant caused a deed to be prepared, which appellee signed, and, by the terms thereof, conveyed all of appellee's real estate to said appellant. This appellant knew appellee did not intend to do, and knew at the same time that appellee was illiterate, and knew that appellee had no knowledge | 2. EVIDENCE 172-ADMISSIONS-EFFECT. of the language employed in the drafting of deeds and mortgages, and that he would not have executed the deed if he had known that it was a deed; that the consideration he paid was greatly inadequate. These facts, some of which are in their nature primary, when taken in connection with the ultimate facts, lead to but one conclusion, and that is that appellee was deceived by the conduct of appellant to his injury.

Where, with the complaint in an action for goods sold and delivered, plaintiff filed what purported to be a duplicate of the order and defendant in its answer admitted that such exhibit was a correct copy of the order, any error in receivthe original order was later identified and introing the duplicate in evidence was cured where duced in evidence.

The fact that appellee intrusted appellant George W. Dunker to the extent that he did to procure him a loan, together with the knowledge appellant had of appellee's illiterate condition, amounted to a deception on the part of appellant in permitting appellee to execute a deed of conveyance under the circumstances.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4172; Dec. Dig. 1052(2).]

An admission as to a writing is like an admission to any other fact and justifies the introduction of the writing in evidence. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 560; Dec. Dig. 172.] 3. EVIDENCE 157(1)

G

ADMISSIBILITY

WRITTEN MEMORANDUM. Where delivery of goods sold was to carrier, a memorandum issued to the seller by the carrier reciting receipt of the goods is not, the bill of lading being unaccounted for, admissible against the buyer to show the date of delivery to the carrier, although it could be used to refresh an otherwise competent witness, and between the seller and the carrier was competent to show the date of delivery.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 460; Dec. Dig. 157(1).] 4. SALES 181(13) - REMEDIES OF SELLER — EVIDENCE-SUFFICIENCY.

Where the evidence merely showed that a filter which the buyer was entitled to test for 35 [4] In regard to the taking of a convey- days was shipped after February 6th and was ance from an illiterate and ignorant person reshipped to the seller, on March 27th, the buywithout knowledge of the value of the proper cannot be held liable on the ground that it reerty or of his rights, it was said in the case of Hyer v. Little, 20 N. J. Eq. 443:

"In this situation, in dealing with this complainant, he was bound to observe strict good faith, not to deceive him by any act or representation of his own, or to allow him to deceive himself by any mistake as to the facts, when he knew he was acting under such mistake, and had it in his power to undeceive him." The facts found by the court warranted the conclusions of law announced thereon, that appellee was entitled to redeem from the lien of the mortgage on the payment of the amount found due at the date of the trial in the sum of $553.22, and entitled to have his title quieted to his real estate as against appellants, and, upon their failure to convey to him on the payment of their lien, a commissioner appointed by the court was authorized to do so.

The evidence amply supports the findings of the court on each material point, and the

tained the filter beyond the period for testing.
[Ed. Note.-For other cases, see Sales, Cent.
Dig. § 491; Dec. Dig. 181(13).]

Appeal from Superior Court, Vigo County; John E. Cox, Judge.

Action by the International Filter Company against the Coca-Cola Bottling Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with di

rections.

George M. Crane, of Indianapolis, A. L. Miller, of Terre Haute, and Orion B. Harris, of Sullivan, for appellant. John S. Jordan and Charles L. Pulliam, both of Terre Haute, for appellee.

IBACH, J. Action by appellee in the form of a common count for goods sold and delivered, to recover the price of a filter alleged to have been sold and delivered to appellant. Error is assigned only in the overrul

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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