3382. Power of alienation.

A condition in a deed that prohibits the grantee from conveying, mortgaging or encumbering the land for twenty years on a penalty of forfeiting the land, does not violate the statute prohibiting the absolute suspension of alienation, and such condition applies only to voluntary encumbrances placed on the land and to that portion of the land encumbered. Fonts v. Millikan, 30 App. 298.

Charitable bequests do not fall within the statute restraining the power of alienating lands, but if such bequests are a part of a general scheme to create a trust in violation of the statute such bequests are void. Phillips v. Heldt, 33 App. 388.

[Acts 1905, p. 102. In force April 15, 1905.]

3388a. Insane husband or wife-Order of court.-1. That whenever, hereafter, any person owning real estate and being desirous of selling the same, or any part thereof, and whose husband or wife at the time shall be insane or of unsound mind, such person upon complying with the provisions of this section shall be and is hereby authorized and empowered to sell and convey the same by deed without the joinder of such husband or wife who is insane or of unsound mind, and the conveyance shall have the same effect as would the joint deed of both, had neither been insane or of unsound mind. Before any such deed shal! be made the owner of the real estate intending to make the sale shall by petition apply to the court having probate jurisdiction in the county where the real estate to be sold, or some part of it, is situated, alleging the insanity of the husband or wife of the owner, and that such insanity is probably permanent. Upon the filing of such petition notice shall be given to the person alleged to be insane, either by service of process, as provided by law for service of process against insane persons, in other civil actions, or, if the person alleged to be insane is, by affidavit, as in other civil cases, shown to be an non-resident of the state, by publication. After such notice and upon or after the return day thereof the legally appointed guardian of the person alleged to be insane, if there be one, or, if there be no such guardian, a guardian ad litem, for such person, appointed by the court, shall make proper defense, if any there be, to such application. Thereupon the matter of such petition shall be submitted to the court, and if the allegations thereof be proved to the satisfaction of the court, it shall make and enter a finding that the person alleged to be insane is insane, and that the insanity is probably permanent, and upon the filing, by the petitioner, with the clerk of the court, of a bond, in a penalty and with surety to the approval of the court, payable to the State of Indiana, conditioned to keep such insane husband or wife from becoming a county charge, and to account to him or her, upon restoration to sanity, if he or she shall upon such restoration demand it, one-third of the purchase money received for the real estate upon such sale, the court shall enter an order authorizing the whole title to be conveyed by the petitioner without the joinder of the insane husband or wife. Such deed, when made upon such an order of court, shall have the same effect as has the deed of an unmarried person competent to convey real estate: Provided, That whenever

it is shown to the satisfaction of the court having probate jurisdiction in the county wherein such lands so authorized to be sold are situated, that such lands were sold pursuant to such order authorizing the same, and that the entire proceeds of such sale were afterwards invested in other real estate situated in the State of Indiana, and that such lands thus purchased were of no less value than the lands theretofore sold pursuant to said order, and that the title thereto had been taken in the name of the person having such insane husband or wife, and that such insane husband or wife will not suffer loss thereby, such court shall enter an order discharging said bond and releasing the sureties from all liability thereon.

This act amends section 3388a, Burns' R. S. 1901.

ARTICLE 5.-TRUSTS AND POWERS.

SEC.

SEC.

3391. Express trusts created in writing. 3403. Conveyance of nominal trustee. 3396. When no resulting trust.

3398. Resulting trust, when.

3407. Irrevocable powers.

3419. Control of court.

3401. Resignation of trustee.

3391. Express trusts created in writing.

A trust in land may be created by any writing under the hand of the party creating the trust, when the terms and conditions of the trust are set forth with sufficient certainty. Nesbitt v. Stevens, 161 Ind. 519.

To create a trust in land by a deed conveying the same, the terms, conditions and beneficiaries of the trust must be specified, or reference must be made to some other writing which defines the trust. Christian v. Highlands, 32 App. 104.

An allegation in a complaint that a husband paid for land with money belonging to his wife, and that he took the title in his own name, does not show a resulting trust in favor of the heirs of the wife in the absence of an allegation that the conveyance was made to the husband without the wife's consent, or that it was fraudulently made, or that it was in violation of any trust, or that there was an agreement that he should hold the land in trust for her. Repp v. Lesher, 27 App. 360.

In an action to enforce by parol a trust in land because the land was paid for with money belonging to the person seeking to enforce the trust, the evidence as to payment must be clear and unequivocal, and where part payment only is claimed the exact portion must be clearly shown. Hutton v. Cunningham, 28 App. 295.

3401. Resignation of trustee.

When a trustee of an express trust resigns, it is proper for him to include in his resignation a claim for his services. Hord v. Bradbury, 156 Ind. 30.

3403. Conveyance to nominal trustee.

If land is conveyed to a person merely to enable him to convey the title to others, such person becomes a mere trustee and no title vests in him but the title vests at once in the beneficiaries. Greenwood Assn. v. Stanton, 28 App. 548.

If land is conveyed to a trustee with power to convey the same to certain persons upon the performance of specified conditions, the trustee is invested with the legal title to the land and is not merely a nominal trustee. McCleary v.. Chipman, 32 App.

489.

3407. Irrevocable powers.

Authority to revoke a power, beneficial or in trust, must be reserved in the instrument creating the same, and a subsequent writing directing the execution of the power will not control or revoke the power contained in a deed creating 'the trust and power. McCleary v. Chipman, 32 App. 489.

3419. Control of court.

If a court adjudges that a trust be closed and terminated in accordance with an agreement and settlement between the parties, such proceeding can not be collaterally attacked by any of the parties. Spencer v. Spencer, 31 App. 321.

CHAPTER 21.

CORPORATIONS GENERALLY.

Section numbers to notes refer to Revised Statutes of 1901.

The provision of the statute that each stockholder shall have a vote at meetings for each share of stock owned is a right which can not be abrogated by any regulation of a corporation that the officers thereof shall continue to serve indefinitely when the statute requires such officers to be elected at stated times. State v. Anderson, 31 App. 34.

3442. Borrowing on mortgage.

A mortgage executed by an insolvent corporation to secure the payment of debts for which directors of the corporation are liable as sureties is void unless such mortgage is authorized by a majority of a quorum of the directors who are disinterested. Swift Co. v. Dyer-Veatch Co., 28 App. 1.

CHAPTER 22.

CORPORATIONS-FOREIGN.

Section numbers to notes refer to Revised Statutes of 1901.

The legislature may prescribe the terms and conditions upon which foreign corporations may carry on business in this state. People's Assn. v. Markley, 27 App. 128. If it is claimed that a foreign corporation can not enforce a contract executed in this state because of a non-compliance with the statutes of this state regulating such corporations, the question must be raised by a plea in abatement under oath. North Mercer Co. v. Smith, 27 App. 472.

If a foreign corporation in the transaction of business in this state by an agent obtains a contract in its favor before such agent has complied with the statutes of this state regulating the business of such corporations, such contract can not be. enforced until such statutes are complied with. People's Assn. v. Markley, 27 App. 128; North Mercer Co. v. Smith, 27 App. 472.

Under the act of 1897, section 4463j, Burns R. S. of 1901, the receiver of a foreign insolvent building association may enforce contracts in favor of such association although such association did not comply with the statutes of this state regulating foreign corporations. Clarke v. Darr, 156 Ind. 692.

Foreign surety companies are not required to comply with statutes regulating the transaction of business in this state by foreign corporations generally, as such surety companies are controlled by special statutes. Barricklow v. Stewart, 31 App. 446.

3456. Contracts, enforcing.

Foreign corporations that have failed to comply with the statutes of this state regulating such corporations can not enforce contracts made by their agents in this state in conducting the business of such corporations until such statutes have been complied with. People's Ass'n v. Markley, 27 App. 128; North Mercer Co. v. Smith, 27 App. 472.

The objection that a foreign corporation has not complied with the statutes of this state must be raised by a plea in abatement. North Mercer Co. v. Smith, 27 App. 472.