of land mortgaged, and was not limited to the undivided one-half thereof. In this respect the judgment was erroneous. The record, however, does not show a motion to modify the judgment, and it has been held that, where a part of the judgment is valid, the same will stand, unless proper steps have been taken by objection presented to the trial court to secure a modification of the same. Bayless v. Glenn, 72 Ind. 5, 11; Becknell v. Becknell, 110 Ind. 42, 54, 10 N. E. 414; People's Savings, Loan & Bldg. Ass'n v. Spears, 115 Ind. 297, 300, 17 N. E. 570; Chicago, etc., R. Co. v. Eggers, 147 Ind. 299, 303, 45 N. E. 786; Jarrell v. Brubaker, 150 Ind. 260, 271, 49 N. E. 1050; Studebaker v. Markley, 7 Ind. App. 368, 374, 34 N. E. 606; Brandis v. Grissom, 26 Ind. App. 661, 664, 60 N. E. 455.

court. In this case it is clear that the mort- [ment of foreclosure included the entire tract gagor had no title to the lands mortgaged by him at the time of executing the mortgage, or at any time. A will speaks as of the date of the death of the testator. While the mortgagor, by the will of his mother, was given a half interest in all the real estate owned by her, she owned no real estate at her death, having conveyed all that she had to appellant. There is no finding that William A. Newman had any knowledge of the deed to his sister. On the contrary, the court found that Newman acted in good faith in procuring the loan from appellee trust company. But appellant, with knowledge of all the facts, joined her brother in having the will probated, which gave him an apparent title to half of the real estate devised. She knew he had no title. She knew he was negotiating a loan on lands that he did not own, and with such knowledge concealed and withheld her deed from record. We think the findings of the court bring this case within the rule that where the owner of real estate permits title to be taken and held in another, and where third parties give credit to such other person on the strength of his record title, without knowledge, actual or constructive, of the rights of the real owner, the latter will be estopped to assert title as against such creditors. Wisehart v. Hedrick, 118 Ind. 341, 344, 21 N. E. 30; Maxon v. Lane, 124 Ind. 592, 598, 24 N. E. 683; Minnich v. Shaffer, 135 Ind. 634, 637, 34 N. E. 987; Duckwall v. Kisner, 136 Ind. 99, 101, 35 N. E. 697; Keifer v. Klinsick, 144 Ind. 46, 56, 42 N. E. 447.

[7] The last error assigned is based on the overruling of appellant's motion for a new trial. The brief of appellant does not show that a motion for a new trial was filed, the grounds of such motion, the ruling of the court thereon, or the page and line of the record where the same may be found. The burden is upon the party appealing, not only to point out error of the trial court, but to present the same in substantial conformity with the rules of this court. On appeal, every presumption is indulged in favor of the judgment, and we will not search the record for errors on which to base a reversal. State ex rel. v. John, 170 Ind. 233, 238, 84 N. E. 1; Kraus v. Lehman, 170 Ind. 408, 415, 83 N. E. 714, 84 N. E. 769, 15 Ann. Cas. 849; Emerson v. Opp. 9 Ind. App. 581, 587, 34 N. E. 840, 37 N. E. 24; Elijah v. Dowling, 49 Ind. App. -, 97 N. E. 551. The judgment is affirmed.

(54 Ind. App. 544) KELLY-ATKINSON CONST. CO. v. LAWRENCE. (No. 7,851.)1

May 7, 1913.)

1. APPEAL AND ERROR (§ 1002*)—VERDICT— EVIDENCE-REVIEW.

[5] The findings further appear to bring the case at least within the spirit of the statute (section 3962, Burns' 1908) which provides that every conveyance or mortgage of lands or of any interest therein shall be recorded in the recorder's office of the county where such lands are situate, and that every conveyance not so recorded within 45 days from the date of execution shall be fraudulent and void as against any subsequent purchaser, lessee, or mortgagee in (Appellate Court of Indiana, Division No. 2. good faith and for a valuable consideration. Mary A. Newman died testate in June, 1907, and within a few days her will was duly probated. The mortgage in suit was executed in December, 1907, and the deed of appellant from her mother was recorded in March, 1908. While the mortgagee had no title to the mortgaged premises, he had an apparent title by the will of his mother, which was admitted to probate at the instance of appellant, long prior to the date of the mortgage. We think appellant's deed, under the facts found, must be deemed to be fraudulent as against appellee trust company, for failure to record within the statutory period. State Bank v. Backus, 160 Ind. 682, 694, 67 N. E. 512; Meikel v. Borders, 129 Ind. 529, 532, 29 N. E. 29.

[6] Appellant complains that the judg

Where there is any evidence which will support the verdict, the court on appeal must consider it alone under an assignment that the evidence is insufficient to support the verdict, and must disregard the controverting evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig.

1002.*]

2. MASTER AND SERVANT (§ 233*)-INJURY TO SERVANT OBLIGATION OF MASTER — SAFE APPLIANCES.

The fact that an employé is to a certain extent directing the work does not purpose the entire responsibility for an accident on him, and lessen the duty of the employer to provide safe appliances.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 681, 684-686, 701-742; Dec. Dig. § 233.*1

For other cases see same topie and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Rehearing denied. Transfer to Supreme Court denied.

3. MASTER AND SERVANT (§ 233*)-INJURY TO | ing whatever to do with fastening the cable SERVANT-LIABILITY. to the drum, and it does not appear that he had any knowledge of the character of the It further appears that he has fastening. nothing to do with the operation of the cable on the drum, that he had no knowledge of the exact length of the cable, and that prior to the day of the accident the cable in all the use made of it had never been sufficiently unwound from the drum for him to ascertain its length. The evidence in no way tends to show any responsibility on his part for the defective and insufficient clamp which fastened the cable to the drum. It

Where an employé killed by the fall of a girder due to an improper fastening of the cable to the drum of a derrick had nothing to do with fastening the cable, and did not know of the character of the fastening, though he assisted in rigging up the derrick, and he had nothing to do with the operation of the cable, the employer was liable for the negligent fail ure to furnish a reasonably safe cable clamp and in not furnishing a long enough cable, though the employé gave signals to the engineer shortly before the breaking loose of the cable; the superintendent of the work being present at the time of the accident and giving orders to the men.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 681, 684-686, 701-742; Dec. Dig. § 233.*]

Appeal from Circuit Court, Franklin County; George L. Gray, Judge.

Action by Mary Lawrence, administratrix, against the Kelly-Atkinson Construction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bracken & Kidney, of Brookville, and Shope, Zane, Busby & Weber, of Chicago, Ill., for appellant. David K. Tone and Henry M. Ashton, both of Chicago, Ill., and George F. O'Byrne, of Brookville, for appellee.

510.

appears that Lawrence was giving signals to the engineer shortly prior to the break

ing loose of the cable from the drum, but it appears from the testimony of some witnesses that he did not give orders to the men and it is also shown that Beck, the superintendent, was at hand at the time, that he was giving orders to the men, and that Beck himself gave the last signal before the accident. But, even if Lawrence was to a certain extent directing the work, that in no wise lessened the master's duty to provide him safe appliances with which to work, and there was an abundance of evi

deuce from which the jury might conclude that the appellant, through its superintendent, Beck, and whatever other of its representatives were charged with the master's duty of selecting tools and appliances with which the men were to work, was negligent in not furnishing a reasonably safe cable clamp, and in not furnishing a cable long enough for the purposes for which it was expected to be used, and the evidence did not show that Lawrence was charged with any of this responsibility.

IBACH, C. J. Appellee recovered a judgment in the sum of $6,000 against appellant for its negligence in causing the death of her decedent. The facts in the case are almost identical with those shown by the record in the case of this same appellant v. Munson (No. 7,852) decided by this court on April 15, 1913, reported in 101 N. E. Both Lawrence and Munson were employés of appellant, and were both killed at the same time and in the same manner. The same issues were presented in both cases, and the same errors are assigned here. Practically every question argued by appellant in this case was decided by the opinion in the Munson Case. The only additional contention presented by appellant in this case is that the evidence shows that Lawrence rigged up the derrick, and that Lawrence as subforeman was in direction of the work at the time he was killed, and that he used the derrick and machinery in an improper manner; therefore his own negligence caused 1. BILLS AND NOTES ($ 128*)-PRESUMPTIONS

his death. The evidence of appellant's witnesses would to a certain extent bear out this contention, but the evidence of appellee's witnesses shows a different state of affairs.

[1] If there is any evidence which will support the verdict, we must consider such evidence alone under an assignment that the evidence is insufficient to support the verdict, and must cast aside all controverting evidence.

Upon the authority of Kelly-Atkinson Construction Co. v. Munson (No. 7,852) 101 N. E. 510, decided April 15, 1913, the judgment is affirmed.

(54 Ind. App. 166) UNION TRUST CO. v. ADAMS. (No. 7,934.)1

(Appellate Court of Indiana, Division No. 1. May 9, 1913.)

-PLACE OF PAYMENT.

The holder of a negotiable note payable to a fictitious payee, duly assigned and transferred, will be presumed to be a bona fide holder until the contrary appears.

[2, 3] However, it is shown without con[Ed. Note.-For other cases, see Bills and tra liction that, although Lawrence did as- Notes, Cent. Dig. §§ 1448, 1675-1681, 1683sist in rigging up the derrick, he had noth-1687; Dec. Dig. § 497.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 1 Rehearing denied.

3. BILLS AND NOTES (§ 365*)-BONA FIDE be an agent of the payee, may not be disquali-
PURCHASERS-TITLE AND RIGHTS ACQUIRED fied from acting as agent of both parties.
-NOTE PAYABLE TO FICTITIOUS PAYEE
KNOWLEDGE.

[Ed. Note.-For other cases, see Bills and A. Williams, of Rensselaer, for appellant. Notes, Cent. Dig. §§ 1377-1380, 1383-1392, Frank Foltz, of Rensselaer, for appellee. 1394-1423; Dec. Dig. § 443.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ever; that appellee never received any stock | the law merchant, but payable to a fictitious of said company for said note; that said payee, which has been duly assigned and Scudder had no authority whatever to assign transferred, may collect the same from the said note to the appellant; that appellant maker, and will be presumed to be such bona had full knowledge of the fact that said fide holder until the contrary appears. But Hamilton Life Insurance Company never the right to collect such instrument is clearwas incorporated, never was a corporation ly dependent on its being negotiable under under the laws of the state of Indiana, and never had any legal existence; also that said Scudder was never legally elected president thereof.

The fifth paragraph of answer alleges that the note was executed without any consideration, and that appellant took the same with knowledge of the fact that it was given without any consideration.

The sixth paragraph alleges that appellant paid no consideration for said note; that it held the same only for collection, and the note was in fact the property of the appellee.

The seventh paragraph was a verified plea of non est factum.

[1] Where a note executed in this state is made payable at a named bank, the bank will be presumed to be in this state, if its locality is not designated. Clark v. Carey, 63 Ind. 105; Fordyce v. Nelson, 91 Ind. 447450; Light v. Killinger, 16 Ind. App. 102105, 44 N. E. 760, 59 Am. St. Rep. 313.

the law merchant, and that the holder is an innocent purchaser for value before maturity, without notice of the fictitious character of the payee. If he has notice sufficient to put him on inquiry, he takes the paper subject to any defenses available to the maker as against such payee. Farnsworth v. Drake, 11 Ind. 101-103; Wiehl, etc., Co. v. Robertson, 39 L. R. A. 423-426, note; Armstrong v. Pomeroy National Bank, 6 L. R. A. 625-626, note; Shirk v. Neible, 156 Ind. 66-73, 59 N. E. 281, 83 Am. St. Rep. 150; Citizens' Bank v. Leonhart, 126 Ind. 206-210, 25 N. E. 1099.

[4] If the attempted assignment of the note be treated as a nullity, the most appellant can claim is that it holds the note by delivery only. In such case the holder has only an equitable title with the right to sue in his own name by making the payee a party defendant, and any defenses available to the maker against the payee are still available to him in such suit. Foreman v. Beckwith, 73 Ind. 515; First National Bank v. Henry, 156 Ind. 1-8, 58 N. E. 1057.

The principal question argued is that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. The evidence tends to show that said Scudder was the agent of the Hamilton National Life

The averments of the third paragraph of answer show that the payee was a fictitious person without any legal existence whatever and was neither a de facto or de jure corporation; that the person who assumed to act as its president and who undertook to assign the note by virtue of his authority so to act was not such officer, and appellant | Insurance Company and was attempting to knew these facts when it took the note by such assignment. The other averments of the answer show that the note was executed without any consideration, was never delivered, and became a binding obligation against the maker, and that its attempted negotiation was a fraud on appellee.

promote and incorporate the Hamilton Life Insurance Company; that, at Scudder's suggestion, appellee executed the note in suit and delivered it to said Scudder upon the express understanding and agreement that he would hold the same for appellee until the said Hamilton Life Insurance Company [2, 3] Therefore appellant's right to en- should be duly incorporated under the laws force its collection depends wholly upon the of the state of Indiana and should issue proposition that it was an innocent purchas- stock for sale; that the stock was to be iser for value, before maturity, without notice sued about January 1, 1910, and, when so of any defenses available to the maker of issued, appellee was to have his note returnthe note against the payee. Daniel on Need to him with 20 shares of said stock, or, if gotiable Instruments, vol. 1, § 136, says: he preferred, he was to pay the note and re"The law abhors fraud and discountenances ceive 40 shares of stock; that there was no the instruments by which it may be committed. For this reason bills and notes payable to fictitious payees are not tolerated, and will never be enforced, save when in the hands of a bona fide holder, who received them without knowledge of their true character. * * There is no doubt that if the holder knew, at the time that he took the bill, that the payee was a fictitious person, he cannot recover upon it against the acceptor, though the acceptor also had knowledge of the fiction; it being the policy of the law to interdict the circulation of such deceptive instruments."

**

other consideration of any kind for said note; that it was expressly agreed that the note should belong to appellee until the issuance and delivery of said stock as aforesaid; that the Hamilton Life Insurance Company never was incorporated, never in fact did any business, never had any directors or officers at any time, and said Scudder never was its president.

No evidence, except the note and its assignment, was introduced on behalf of appellant, but the appellee admitted signing the note under the conditions above stated. There was no evidence that the appellant A bona fide holder of a note negotiable by paid anything for the note except the infer

ence afforded by the note and its assign- | 279, 23 N. E. 766, it was held that, where an ment. There is evidence clearly supporting answer avers that the note was obtained by the theory that the attempted negotiation of the note by Scudder was on his part a fraudulent transaction.

In addition to the general verdict, the jury returned answers to interrogatories, the substance of which is as follows: That appellee executed the note in suit on the 24th day of June, 1909, and delivered the same to one W. R. Scudder; that said Scudder was not the agent or representative of the payee, the Hamilton Life Insurance Company, but was in said transaction the agent and representative of the appellee.

fraud and does not allege notice to the plaintiff, it states a prima facie defense and the plaintiff must show in his reply that he is a purchaser in good faith without notice of any defense available to the maker against the payee of the note.

In the case of Midland Steel Co. v. Citizens' National Bank, 26 Ind. App. 71, 59 N. E. 211, the suit was upon a note payable at a bank in the state of Pennsylvania, but the laws of that state, showing such instrument to be negotiable, were not averred in the complaint. The note, not being payable at [5] It has been held in this state that to a bank in Indiana, was not negotiable by aver in a complaint that the holder of a note the law merchant in this state. In the abpurchased the same in good faith is not sence of averments showing otherwise, it equivalent to the averment that the indorsee will be presumed the common law prevails took the note without notice of the maker's in Pennsylvania, and therefore, as disclosed defenses against the payee. Scotten v. Ran- by the complaint, the note was not negotiadolph, 96 Ind. 581-585; Deuel v. Newlin, 131 | ble. To avoid a good answer, the laws of Ind. 40, 30 N. E. 795. Pennsylvania showing the instrument to be

Without either approving or criticising that decision, the case at bar and the decisions followed may be distinguished from that case by the fact that the complaints show the instruments sued on to be negotiable by the law merchant.

[6] The indorsee of a note negotiable un-negotiable were set up in a reply, and it was der the law merchant in this state, seeking held to be a departure from the theory of the to enforce collection against the maker, to complaint. which note the maker has exhibited a valid defense for fraud, has the burden of averring and proving that he obtained such note before maturity, without any notice of the defenses of the maker, and that he paid a valuable consideration therefor. Roane Iron Co. v. Bell-Armstead Mfg. Co., 24 Ind. App. 250-253, 56 N. E. 696; Shirk v. Neible, supra; Schmueckle v. Waters, 125 Ind. 265268, 25 N. E. 281; Giberson v. Jolley, 120 Ind. 301, 302, 22 N. E. 306; Palmer v. Poor, 121 Ind. 135-138, 22 N. E. 984, 6 L. R. A. 469.

In Giberson v. Jolley, supra, 120 Ind. on page 303, 22 N. E. on page 307, the court said: "It would be a departure from principle to hold that the maker must prove that the holder had notice of the fraud. Whether he had notice or not is a matter peculiarly within his own knowledge. It needs no more than a bare statement of the proposition that the plaintiff's possession or nonpossession of notice is a matter peculiarly within his own knowledge, to establish it to the satisfaction of a candid mind, and, if this proposition be established, then it must follow that the proof should come from him, for few rules of law are better settled than that a party whose cause of action or defense rests upon facts peculiarly within his own knowledge must prove those facts."

In Bunting v. Mick, 5 Ind. App. 289, at page 296, 31 N. E. 1055, at page 1056, the court followed Giberson v. Jolley, supra, and held that the burden is upon the plaintiff to show that he is a bona fide holder and that he obtained the paper without notice of the fraud, and said: "If required to prove notice, of course he must also allege it, and this embraces the entire question here involved."

[7, 8] The province of a reply is to meet and avoid the answer. Where an answer to a suit on an instrument negotiable by the law merchant avers facts showing fraud or that the payee is fictitious, a reply showing that the holder purchased the note for value before maturity, without notice of any defense available to the maker against the payee, avoids the answer by showing the holder to be a bona fide purchaser protected by the law merchant and does not involve any question of a departure in the pleadings.

[9] The law is well established that a promissory note may be executed and delivered in escrow, and that, as between the parties to such instrument, it does not become a binding contract upon the maker if delivered contrary to the conditions imposed. Daniel on Negotiable Instruments (3d Ed.) vol. 1, § 68; Clanin v. Esterly, etc., Co., 118 Ind. 372-374, 21 N. E. 35, 3 L. R. A. 863.

[10] It is also the law that, if a note duly executed is delivered to the payee or to his duly appointed agent, such delivery cannot be held to be in escrow. But, notwithstanding the foregoing general rule, it has been held that there may be circumstances under which the depository, though he be an agent of the payee, may not be disqualified from acting as agent of both parties in holding the instrument in escrow.

[11] In this case there was ample evidence to show that appellee by clear and positive terms made Scudder his agent and imposed upon him definite conditions to which he ac In First National Bank v. Ruhl, 122 Ind. ceded, and the jury expressly so find.