Chicago, etc., R. Co. v. Browers.

was filed in the office of the clerk of the circuit court of the county in which the animal was killed. It was not made to appear by the allegation of facts that the justice had jurisdiction of the person of the defendant. It was not alleged that the judgment or decision of the justice "was duly given or made", which allegation, under the statute, would have obviated the need of averments of the facts conferring jurisdiction.

The statutory action for the killing or injuring of animals which entered upon the track at a place where it was not securely fenced in, if instituted before a justice of the peace, must be brought before a justice of the county in which the killing or injuring occurred, and if originating in the circuit court must be brought in the court of that county. $5313 Burns 1901, §4026 R. S. 1881.

It has been held that in such an action commenced in the circuit court, if the complaint does not show that the animal was killed or injured in the county where the action is brought, the objection may be raised by demurrer assigning want of jurisdiction of the subject of the action. Toledo, etc., R. Co. v. Milligan, 52 Ind. 505; Whitewater R. Co. v. Bridgett, 94 Ind. 216; Lake Erie, etc., R. Co. v. Fishback, 5 Ind. App. 403; Louisville, etc., R. Co. v. Johnson, 11 Ind. App. 328; Chicago, etc., R. Co. v. Wheeler, 14 Ind. App. 62.

So, as the motion for the enforcement of payment of the judgment of the justice must be made in the circuit court of the county in which the animal was killed, it should appear in the motion not merely that a transcript of a justice has been filed in the office of the clerk of the court in which the motion is made, but also that the animal was killed in the county in whose circuit court the motion is made, and it would seem that for the lack of such showing in the motion a demurrer for want of jurisdiction of the subject will lie. Furthermore, the motion, or complaint, being based upon a judgment of a justice of the peace, the jurisdiction of the justice over the subject of the action and over the person of

Rogers v. Shewmaker.

the defendant should appear by an inspection of the motion, and the defectiveness of the motion in this regard may be reached by demurrer for want of sufficient facts. Chicago, etc., R. Co. v. Harris, 19 Ind. App. 137, and cases cited.

The motion, or complaint, under examination here was bad for want of jurisdiction of the subject and also for want of sufficient facts, both of which grounds were assigned in the demurrer. The court therefore erred in overruling the demurrer.

Judgment reversed.

ROGERS ET AL. v. SHEWMAKER ET AL.

[No. 3,741. Filed May 14, 1901. Rehearing denied October 1, 1901. Petition to transfer denied November 22, 1901.]

HUSBAND AND WIFE. Trust Deed of Lands. Tenants by Entireties.-Suretyship.-An absolute deed of trust by a married woman and her husband, of real estate held by them as tenants by entireties, the real estate to be sold by the trustee and the proceeds applied to the debts of her husband, is not a contract of suretyship on the part of such married woman. pp. 632-635. SAME.-Estate by Entireties.-Conveyance.-Application of Proceeds. A wife may, her husband joining in the conveyance, convey an estate held with him by entireties, and, with his consent, apply the proceeds to the payment of the husband's debts or to any other use. p. 635.

SAME.-Estate by Entireties.—Trust Deed.—Where a married woman joins her husband in a trust deed of real estate held by them as tenants by entireties, the same to be sold and the proceeds to be applied to the husband's debts, and the trust has been fully executed, a suit, after years of acquiescence, to recover the property on the ground that the deed was a contract of suretyship, comes too late, even though the trust deed is in the nature of a mortgage. p. 636. From Vigo Circuit Court; J. E. Piety, Judge.

Suit by Mary J. Rogers and others against Uriah Shewmaker and others to quiet title. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

R. B. Stimson, H. A. Condit and W. W. Rumsey, for appellants.

J. E. Lamb, J. T. Beasley and B. V. Marshall, for appellees.

Rogers v. Shewmaker.

COMSTOCK, J.-The complaint in this cause is in two paragraphs. It is in substance alleged that appellants, who were plaintiffs below, are the owners in fee simple of certain real estate (describing it) in the city of Terre Haute, Indiana; that on the 10th day of December, 1881, they executed an instrument purporting to be a trust deed conveying said land to Erwin S. Erney, trustee, and expressing the trust in the following terms, to wit: "For the uses and in trust as follows, to wit: That he will sell, convey, and dispose of said real estate at the highest price obtainable therefor, and pay over and apply the proceeds thereof on the liabilities of said Newton Rogers, as treasurer of Vigo county, Indiana, and for the relief of the sureties of said Newton Rogers on his official bond or bonds as such treasurer." That said instrument was executed solely as surety for the debts of said Newton Rogers, and without any consideration whatever to the plaintiff, Mary J. Rogers; that no part of the consideration came to her or was used for her or for the benefit of her estate; that at the time of executing said instrument the plaintiffs were the owners of said land in fee simple as tenants by entireties, and said Mary J. Rogers was and still continues to be the wife of said Newton Rogers; that the defendants are unlawfully in possession of said land and are unlawfully and forcibly excluding plaintiffs therefrom under and by virtue of the execution of said trust deed by plaintiffs to said Erney, to the damage of plaintiffs of $1,000. They ask for the immediate possession of said property and that their title thereto be quieted, $1,000 damages for the detention thereof, and all other proper relief. The trial court sustained a demurrer for want of facts to said complaint. Appellants refusing to plead further, judgment was rendered for costs in favor of appellees. From that judgment appellants appeal and assign as error the action of the court in sustaining the demurrer to each paragraph of the complaint.

Section 6964 Burns 1894, §5119 R. S. 1881, provides

Rogers v. Shewmaker.

that "A married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner; and such contract, as to her, shall be void." This statute has been often construed by our Supreme Court. That tribunal has, in effect, held that "whenever the result of a transaction is such as to impose upon the wife's property a liability to answer for the debts of another, she must be regarded as surety and entitled to the protection of the statute." It is settled in this State that under the statute of 1881, §6964 (5119), supra, a mortgage by a married woman upon her separate real estate to secure a debt of her husband or other person may be defeated by her in a suit on the mortgage unless her conduct has been such as to make an equitable estoppel against her. It has also been held that land held by married women as tenants by entireties is within the protection of the statute. Stewart v. Babbs, 120 Ind. 568; State, ex rel., v. Kennett, 114 Ind. 160; Crooks v. Kennett, 111 Ind. 347; Wilson v. Logue, 131 Ind. 191, 31 Am. St. 426; Dodge v. Kinzy, 101 Ind. 102. And that a mortgage executed by husband and wife upon real estate so held to secure the debt of another is invalid both as to the husband and wife. Crooks v. Kennett, supra; McCormick, etc., Co. v. Scovell, 111 Ind. 551. That a married woman is not liable on her contract of suretyship in this State is not therefore an open question. In this case it is not questioned.

Counsel for appellant contend that the trust deed is a contract of suretyship, and is within the inhibition of the statute; that the trust deed possesses all the characteristics of and was in effect a mortgage. Counsel for appellee argua that the instrument in question was an unconditional deed of trust, and that the deed of the trustee conveyed a good title to the appellees, notwithstanding the fact that the money obtained was used in paying the debts of the husband.

Mortgages and deeds of trust have certain characteristics in common, but they are distinguishable. In 1 Jones on Mortgages (5th ed.) §62, the author says: "There is a well

Rogers v. Shewmaker.

settled distinction between a deed of trust and a deed of trust in the nature of a mortgage; the one being for the trust purposes unconditional and indefeasible, while the other is conditioned and defeasible, in the same way that a mortgage is."

In Hoffman v. Mackall, 5 Ohio St. 124, 131, the court say that a deed of trust in the nature of a mortgage is a conveyance in trust by way of security subject to a condition of defeasance or redeemable at any time before the sale of the property. By an absolute deed of trust, the grantor parts absolutely with the title which vests in the grantee unconditionally for the purpose of the trust. The latter is a conveyance to a trustee for the purpose of raising a fund to pay debts, while the former is a conveyance in trust for the purpose of securing a debt subject to a condition of defeasance.

In Turpie v. Lowe, 114 Ind. 37, at p. 48, the court, after quoting the syllabus of Woodruff v. Robb, 19 Ohio 212, sets out the following portion of the opinion: "Now, the difference between a conveyance to a trustee, for the purpose of raising a fund to pay debts, and the conveyance for the purpose of securing a debt in case of the default of the debtor, by a time limited, is very apparent. In the first case, the title is vested absolutely, by the conveyance itself, in the grantee, for the purpose of the trust. The intention of the grantor is to part absolutely with his title. In the latter case, if the grantor perform his legal obligation, according to its terms, he retains his property. His title is as perfect as if such conveyance had never been made. The one is a deed of trust, the other a mortgage.'' In the same

opinion the court quotes from the opinion of Hoffman v. Mackall, supra; both cases are cited with approval; citing also 2 Perry on Trusts, §§602a, 602g, and Shillaber v. Robinson, 97 U. S. 68, 24 L. Ed. 967.

So far as we are advised of its terms by the record, the instrument under consideration is, judged by approved definitions, an absolute deed of trust for the purpose named.