Leming v. Sale. and that, as a consequence, the assignee acquired no interest or right in the mortgaged property entitling him to a re ceiver. So far as the parties to a chattel mortgage are concerned, recording is not necessary to its validity. The statute provides only, that if not recorded it shall not be valid as against any other person than the parties thereto. The mortgagor can take no advantage of a failure to record it. Section 4913, R. S. 1881; Me Taggart v. Rose, 14 Ind. 230. The appellant also insists that sufficient reasons are not shown in the petition to authorize the appointment of a receiver. The petition shows the insolvency of the debtor; that the mortgaged property is not sufficient in value to secure the debt, and that there is danger of its removal beyond the jurisdiction of the court. This is sufficient. The court did not err in appointing the receiver. Judgment affirmed, with costs. Filed May 21, 1891. No. 15,143. LEMING v. SALE. DIVORCE.-Custody of Child.—Status Fixed by Decree.-How Status May be Changed. The decree in a divorce suit awarding the custody of a child to one of the parties, fixes the status of the child as between the parties until modified or set aside for cause shown by some subsequent, or supplemental, proceeding in the same cause. From the Warren Circuit Court. W. P. Rhodes, for appellant. COFFEY, J.-This was an application by the appellee against the appellant, made to the judge of the Warren Cir Leming v. Sale. cuit Court, for a writ of habeas corpus to obtain the possession of a child. The petition in the cause alleges that the appellee obtained a divorce from the appellant in the Warren Circuit Court in the year 1888; that in said cause the court decreed the custody of the child in controversy, which is the child of the parties to this suit, to the appellee; that the appellee placed said child in the care of his sister, from whom the appellant took it without the knowledge or consent of the appellee, and without the knowledge or consent of the sister, and that she had for some months secreted and kept the child from the custody of the appellee. The appellee filed a return, in which she sought to justify her possession of the child, on the ground that it was to its interest to remain in her custody. The court sustained exceptions to this return, holding that the decree in the divorce suit awarding the custody of the child to the appellee was conclusive between the parties, and settled the right of the appellee to such custody. The only question presented for our consideration relates to the propriety of this holding. Whatever may be the rule elsewhere, the question here presented is not an open one in this State. Williams v. Williams, 13 Ind. 523; Baily v. Schrader, 34 Ind. 260; Sullivan v. Learned, 49 Ind. 252; Joab v. Sheets, 99 Ind. 328. It is settled by these cases that a decree of the kind under consideration fixes the status of the child as between its parents, and is conclusive between the parties until modified or set aside for cause shown by some subsequent, or supplemental, proceeding in the same cause. There was no error in the ruling of the court below. Filed May 22, 1891. Parker v. Culbertson. No. 15,053. PARKER v. CULBERTSON. ABATEMENT.-Plea of.-Purchase Price of Real Estate.-Action to Recover.— Insufficiency of Plea.—In an action to recover the agreed purchase price of a tract of land conveyed by the plaintiff to the defendant, a plea in abatement is bad, which alleges that at the time the plaintiff conveyed the real estate to the defendant she had no legal title to the same, but that the legal title was in another, and that an action was pending against the defendant upon his warranty, he having conveyed the land, but which does not show that either the defendant or his grantees have been disturbed or interrupted in their possession. From the Hendricks Circuit Court. T. J. Cofer and C. C. Hadley, for appellant. OLDS, C. J.-This is an action by the appellee against the appellant to recover the purchase-money for a 40 acre tract of land in Hendricks county, Indiana, and for an 80 acre tract in the State of Illinois. The complaint is in four paragraphs. The first paragraph alleges a sale and conveyance of the 40 acres by the appellee to the appellant and an agreement to pay $1,200 for the same; that he has wholly failed to pay the same; that appellee at and before the execution of the conveyance was, and ever since has been and now is a married woman. The appellant files what is termed a plea in abatement to this first paragraph, to which a demurrer was sustained, and this ruling is the only error discussed. We do not deem it necessary to set out this answer, or plea in abatement, as it is termed. It alleges no facts making it good on the theory of a plea in abatement. It alleges that at the time the appellee conveyed the real estate to the appellant she had no legal title to the same; that the legal title was in one Kenney, and any possession taken or held by the appellee or the appellant, or his grantors, was fraudulent; that appellant sold and conveyed the land Brighton et al. v. White. by warranty deed to one Riggins, and Riggins sold and conveyed by warranty deed to one Hadley, and Kenney sold and conveyed his legal title to one Downard, and after this action was commenced Downard brought suit against Hadley for possession, in which action there was judgment in favor of Hadley; that Riggins defended said suit in the name of Hadley, and had now brought suit, which was pending in the circuit court, against the appellant upon his warranty, claiming $1,000 damages on account of the failure of title, and money expended in defending the suit prosecuted by Downard. Prayer that the action abate until the final determination of the suit instituted by Riggins. The facts alleged do not show that either the appellant or his grantees have been disturbed or interrupted in their title or possession. It alleges that one Kenney has the paramount title, but it also shows that in the contest and adjudication between Downard and Hadley, Downard holding under a title from Kenney, and Hadley under a title from the appellee, Hadley succeeded. This answer does not allege facts constituting a good plea in abatement and there was no error in sustaining a demurrer to it. Judgment affirmed, with costs. Filed May 22, 1891. No. 15,130. BRIGHTON ET AL. v. WHITE. BANKS AND BANKING.-Bank of Discount and Deposit.-Presumption as to. -As we have only one general statute providing for the organization of banks of discount and deposit, the presumption is, that a bank of discount and deposit was organized under that statute. The presumption is a rebuttable one, but such a presumption makes a prima facie case. SAME--Transfers by Insolvent Bank.-Nullity of.—Preference of Creditors.—Assignments or transfers of evidences of indebtedness by an insolvent Brighton et al. v. White. bank, with a view to preferring one creditor to another, are utterly null and void. Section 2697, R. S. 1881. A creditor taking an assignment in violation of the terms of the statute gets no shadow of title. Blair v. Hanna, 87 Ind. 298, distinguished. EQUITY.-Lien upon Real Estate.-Foreclosure of.-Equity Jurisdiction.― How Determined. Where a lien upon real estate is to be foreclosed, the equity power of the court is called into exercise, and the entire issue is for trial by the court. Where a specific decree is required there is an exercise of equity jurisdiction, and as the main feature of the case is equitable, it controls the incidents. From the Clay Circuit Court. S. W. Curtis, for appellants. E. S. Holliday and G. A. Byrd, for appellee. ELLIOTT, J.-The appellee's complaint is founded upon a note and mortgage executed by Alexander Brighton and Catherine Brighton to the Commercial Bank of Brazil, Indiana, and by the bank assigned to the appellee. The appellants, Croasdale, Jones and Sowers, were made defendants to answer as to their interest in the mortgaged premises. The answers of the appellants are substantially the same upon the material point involved, although they severed in their defences so that a synopsis of one answer will sufficiently exhibit the question which controls this phase of the case. The answers allege that the note and mortgage were executed to the Commercial Bank of Brazil, Indiana; that it was a bank "of deposit and discount, organized under the laws of the State of Indiana; " that the note and mortgage were assigned to the plaintiff after it was known that the bank was insolvent; that the insolvency of the 'bank was known to its officers and to the plaintiff; that the plaintiff was a creditor of the bank, and the note and mortgage were assigned to him as collateral security and for the purpose giving him a fraudulent and secret preference over other creditors. of The right of the appellee to maintain the suit depends upon his title to the instruments upon which his cause of VOL. 128.-21 |