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Hoagland et aL v. The New York, Chicago and St. Louis Railway Co.

of the demise. The grantees of the State are not in a different position from that of their grantor, so far as respects the subject of the lease. That was not expanded by anything done by them or any one else. As said by the Supreme Court of Pennsylvania, in Commonwealth v. Pennsylvania R. R. Co., 51 Pa. St. 351, "In determining the meaning of the contract, the subject of the grant is very material to be considered. It was surplus water."

When the canal was abandoned, there was no subject upon which the lease could operate, and it ceased to be effective. This result, as the decisions referred to in the original opinion clearly show, the lessor was not bound to prevent. There was no obligation, express or implied, that water should always be supplied, nor that the canal should be so maintained as that the lease should remain operative. On the contrary, the clear implication is, that when the subject of the lease ceased to exist, the rights of the parties under it terminated fully and completely. If this be true, and we can see no reason for doubt, then it must be true that the State or its grantees had a right to do with the canal property what any owner might do. This is substantially the doctrine of Fox v. Cincinnati, 104 U. S. 783, where it was said, in speaking of the canal: "When it was no longer needed, it might be abandoned; and, if abandoned, the water might be withdrawn altogether."

The appellants did not acquire any corporeal property; all that they acquired was an incorporeal right. Their right was to use the water, for they did not acquire any right to the corpus of the water, much less to any of the land. Angell Watercourses, section 90. The incorporeal right which they acquired was to the use of the surplus water, and when the abandonment of the canal for the purposes of navigation made it impossible that there should be surplus water, the incorporeal property which formed the subject of the lease ceased to exist. If the subject of the lease—that is, the incorporeal right to the use of the surplus water—ceased to exist Swank v. Hufnagle.

when the canal was abandoned, then the appellants had no longer any right in the canal or its appurtenances, because the only property on which their lease could operate was gone.

Petition overruled.

Filed Oct. 18, 1887.

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No. 12,896.

Swank V. Hufnagle.

Mortgage.Validity.Lex Situs.—The validity of a mortgage of real estate is to be determined by the law of the place where the property is situated.

Same.Married Woman.Surely.—A mortgage executed in Ohio by a married woman, as surety for another, upon land owned by her in this State, is void under the statute of 1881.

Pleading.Foreign Statute.—Where a pleading is founded on a foreign statute the statute must be set out.

From the Miami Circuit Court.

H. J. Shirk, J. Milcltell, C. H. Aldrich and 0. Gresham, for appellant.

R. P. Effinger and R. J. Loveland, for appellee.

//elliott, J.'-A-The appellant sued the appellee, Melissa Hufnagle, and her husband, upon a note and mortgage executed in Darke county, Ohio, on land situate! in this State. The appellee, Melissa Hufnagle, answered that she was a married woman, and that the mortgage was executed by her as the surety of her husband, and assumed to convey land in this State owned by her. The appellant replied that the contract was made in Ohio, and that by a statute of that State a married woman had power to execute such a mortgage, but the statute of Ohio is not set forth.

The trial court did right in adjudging the reply bad. The validity of the mortgage of real property is to be determined by the law of the place where the property is situated. Mr. Jones says: "A mortgage of course takes effect by virtue

Swank t>. Hufnagle.

of the law of the place where the land is situated." 1 Jones Mortg., section 823. This is well settled law. Story Conflict of Laws (8th ed.), 609, auth. n.; BellieU v. Bethell, 92 Ind. 318.

Judge Story, in sections 66 and 102 of his work on the Conflict of Laws, does not treat of conveyances or mortgages of land, but of contracts of an entirely different class, so that the appellant gets no support from what is there laid down as the law.

Under the act of 1881 a mortgage executed by a married woman as surety on land owned by her in this State is void.

There is another reason for adjudging the reply bad, and that is this, it does not set out the foreign statute on which it professes to be based. It is well settled that where a pleading is founded on a foreign statute the statute must be set forth. Wilson v. Clark, 11 Ind. 385; Mendenhall v. Gately, 18 Ind. 149; Kenyan v. Smith, 24 Ind. 11; Tyler v. Kent, 52 Ind. 583; Milligan v. State, ex rel., 86 Ind. 553.

We can not disturb the finding on the evidence.

Judgment affirmed.

Filed May 26, 1887.1

On Petition Fob A Rehearing.

Elliott, J.-j^-In the argument on the petition for a rehearing, counsel contend that we were in error in holding that a mortgage executed by a married woman in Ohio as surety for her husband can not be euforced in this State, and they refer us to oases holding that the construction of a contract is governed by the law of the place where it was made. But the argument is unavailing, for counsel mistake the point in dispute. The question is not how the contract shall be construed, but had the married woman capacity to execute it? The question is one of capacity, not of construction. The trial court was not asked to construe a mortgage, but to enforce one which our statute declares shall not be enforceable. The purpose of the suit is not to obtain a judicial interpreSwank v. Hufnagle.

tation of a contract, but to foreclose a mortgage which our law declares a married woman has no capacity to execute.

We suppose it quite clear that if the mortgagor has no capacity to execute a deed or mortgage, the instrument can not be enforced, although the incapacity is established by the law of the place where the laud is situated. If, for instance, a married woman should execute a deed or mortgage without her husband joining with her, it could not be enforced in a State where the law required her husband to join. This is so because the question is one of power, and power is created or withheld by the law of the place where the land lies. It is hardly necessary to cite authorities upon this elementary proposition, but there is so conveniently at hand a decision of the Supreme Court of Ohio, where the rule is affirmed, that we cite it. Brown v. National Bank, 44 Ohio St. 269. In that case it was said: "We are not unmindful of the principle that deeds intended to convey or encumber an interest in land situated in one State, executed in another, must derive their vitality from the laws of the former."

Our statute provides that the deeds of persons under twenty-one years of age shall be voidable, and this law would undoubtedly entitle an infant under that age to avoid a deed to land in this State executed in Ohio, and the principle in such a case is the same as that which rules here, for, in both cases, the question is one of capacity. In discussing this question an American author says: "But, in reference to contracts about the sale and conveyance of land such capacity depends upon the laws of the State wherein the land is situated. This is the general ruling in America as to the law upon these subjects, in whatsoever court the question may arise, domestic or foreign. This rule applies to questions of infancy, coverture, majority and of legal capacity generally." Rorer Inter-State Law, 190; 1 Jones Mortg., section 662; 4 Kent Com., star p. 441.

Petition overruled^/^ /\

Filed Sept. 28, 1887.1

Richter v. Bichter ei al.

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No. 13,411.

Richter V. Richter Et Al.

Deed.Consideration.Condition Subsequent.Care and Support.—Qwetmg Title.Construing Together Contemporaneous Instruments.—A. father executed to his son a warranty deed, in which the consideration was stated to be one thousand dollars. Contemporaneously, and as a part of the same transaction, the son executed to the grantor an instrument called a mortgage to secure the performance of agreements and stipulations therein set out for the support and maintenance of the latter during his natural life, which in fact constituted the sole consideration for the deed. It was provided that the son should occupy the land during the grantor's life. He went into possession and so continued for three months, giving his father proper support and treatment. The grantor then, being old and childish, ordered the grantee to leave the farm, which he did, without offering further performance of the contract. The grantor remained in possession, others giving him support, and shortly afterwards demanded a reconveyance on the ground that the grantee had failed to comply with the contract, but never made a demand for maintenance. Suit by him to quiet his title.

Held, construing both instruments together, that the deed was upon a condition subsequent, which, being broken, entitled the grantor to the relief asked.

Held, nlso, that the abandonment of the land by the grantee was, under the circumstances, such a renunciation of the contract as authorized the grantor to enter and treat the arrangement as at an end.

Held, also, that the grantor's continuance in possession after condition broken was equivalent to a re-entry for the breach.

From the Vigo Superior Court.

8. G. Siimson and R. B. Stimson, for appellant.
S. C. Davis and 8. B. Davis, for appellees.

Mitchell, J.—This was a suit by Henry G. Richter against George W. Richter and wife, to quiet title to a tract of land theretofore alleged to have been conveyed by Henry G. to George W. Richter, upon a condition subsequent.

The court found the facts specially, which, so far as they are material to be stated, are as follows: On the 30th day of July, 1883, Henry G. Richter, being the owner of fifty acres of land in Vigo county, executed a warranty deed

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