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Trout v. The State.

mation herein before us, we proceed now to the consideration of the objections urged by appellant's learned counsel to the sufficiency of such affidavit and information.

Counsel vigorously contends that appellant's motion to quash the information herein ought to have been sustained by the trial court, for the following reasons, namely:

"1. Because the acts charged do not constitute a public offence.

"2. Because the information does not charge the offence with sufficient particularity and oertainty.

"3. Because the allegations of the information are contradictory and repugnant.''

In discussing together the first two of these reasons, appellant's counsel insists that the information is bad, in that it charges merely conclusions in regard to the lottery scheme mentioned therein, and does not state " the process by which the result was to be determined." Counsel says: "The appellant was entitled to know this, in order that he might properly prepare his defence. The court was entitled to know it, in order that it might be able to determine whether it was an offence—whether the process was such as constituted a lottery."

It is no doubt true that an information or indictment, under our criminal code, must state "with sufficient certainty" the facts constituting the offence intended to be charged, or it must beheld bad on motion to quash. Section 1759, R. S. 1881; Trout v. State, 107 Ind. 578.

Under our decisions, as a general rule, an indictment or information will be sufficient to withstand a motion to quash if it charge the offence in the language of the statute, or in terms substantially equivalent thereto. Howard v. Stale, 87 Ind. 68; State v. Miller, 98 Ind. 70; Bitter v. State, ante, p. 324.

It is conceded by appellant's counsel in the case under consideration, that the offence is charged "substantially in the words of the statute." But counsel claims this is not Trout r. The State.

sufficient in this case. The statute does not define the offence by setting out particularly the facts constituting it. "If it had so defined the offence," counsel says," an information simply following the words of the statute might have been sufficient."

It is very clear, we think, that appellant's counsel wholly misappreheuds the force and effect of the language of the section of the statute heretofore quoted in this opinion. In words of no uncertain meaning, the statute clearly defines the offence charged, and intended to be charged, in the information, the substance of which we have heretofore given. "Whoever sells a lottery ticket or tickets, or share in any lottery scheme or gift enterprise," says the statute, " on conviction thereof shall be fined," etc. The information herein charged that on, etc., at, etc., appellant unlawfully sold to John W. Page, for a specified sum of money then and there paid, " one share, chance and opportunity to draw in a certain lottery scheme and gift enterprise," for the division of certain sums of lawful money to be determined by chance and lot, etc. The offence is charged in the information herein substantially in the language of the statute, and, we think, with sufficient certainty. Ritter v. Stale, supra.

But appellant's counsel further insists that the information ought to have been quashed, because the allegations thereof were "contradictory and repugnant." It is not claimed by counsel, however, that the information herein "contains any matter which, if true, would constitute a legal justification of the offence charged or other legal bar Jo the prosecution." Section 1759, supra. Any other contradictory and repugnant matter would afford no ground for quashing the information, where, as here, the offence is charged therein with sufficient certainty, but must be regarded as at most mere surplusage.

For the reasons given we are clearly of the opinion that the trial court did not err in overruling either the motion to Otis r. Gregory.

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quash the information herein, or the motion in arrest of judgment.

Under the alleged error of the court below in overruling appellant's motion for a new trial herein, his counsel insist* that the verdict of the jury was not sustained by sufficient evidence. We can not disturb the verdict on the evidence. There is evidence in the record which fairly tends, we think, to sustain the verdict on every material point. In such case it is settled by our decisions that, even in a criminal cause, the judgment will not be reversed on the evidence. Garrett v. State, 109 Ind. 527. The supposed variance between the allegations of the information and the evidence is not worthy of serious consideration. The variance was wholly immaterial. There was no error, we think, in the overruling of appellant's motion for a new trial.

We have found no error in the record of this cause which authorizes or requires the reversal of the judgment.

The judgment is affirmed, with costs.

Filed Sept. 20, 1887.

Ill 504

& M8j No. 12,723.

126 611

in soil Otis V. Gregory.

130 3311

136 SSI Quieting Title.Complaint.Necessary Allegations.—A complaint to quiet TTi 504 title must show, either by direct averment or by the statement of fact*

no ,

from which the inference necessarily arises, that the defendant's claim is adverse, or unfounded, and a cloud upon the plaintiff's title. Mortgage.Cancellation.—Equitable Defences. Maxim, "He Who Seeh Equity Must do Equity."Application of.—A plaintiff who shows himself otherwise entitled to the aid of a court of equity will not, under the

111 5041

154 593

155 4261

159 ^40 maxira that he who seeks equity must do equity, be denied relief, unless

ill so4 the defendant brings forward some corresponding equity, growing out

of the subject-matter then in suit, which would, at some time subsequent to the transaction, in some form of proceeding, entitle him to * remedy against the other party, in respect to the subject-matter involved. Otis v. Gregory.

Same.Married Woman.Mortgage Without Husband Joining.Lex Situs.Vendor's Lien.Pleading.Practice.—A mortgage executed in Michigan by a married woman, without her husband joining, upon her separate land in this State, is void, and, of itself, creates no equity which the courts can recognize; but if the debt intended to be secured thereby is purchase-money, the mortgagee may, by reason of his vendor's lien, in a proceeding by the mortgagor to cancel the mortgage, obtain affirmative relief by cross-complaint, or by setting up the facts by way of answer may, unless his equity is acknowledged, defeat the plaintiff's right to relief.

Same.Vendor's Lien.Equitable Subrogation.—Where a party who holds a valid mortgage upon land releases it, in order that the owner may sell the property and invest the entire proceeds in another tract, he to take a mortgage upon the latter for the amount of his debt, he in effect pays a part of the purchase-money, and, if the mortgage taken is void, will be subrogated to that extent to the rights of the vendor.

From the LaPorte Circuit Court.

D. J. Wile, F. E. Oaborn and J. B. Langworthy, for appellant.

31. Nye, for appellee.

Mitchell, J.—This was an action by Mary E. Gregory against Amos Otis to quiet title to real estate. The plaintiff alleged that she was the owner, in fee-simple, of a certain particularly described tract of land in LaPorte county, and that the defendant had, or claimed to have, some interest in or claim to the same, or some part thereof, of the natnre of which she averred she was not advised. She alleged that the defendant was giving out to the public that he had some claim to the real estate described, by reason of which she was damaged, in that it prevented her from making sale of her land. Prayer that the plaintiff's title might be quieted, and for all other proper relief.

The foregoing summary of the complaint discloses, that neither directly nor by necessary inference does it appear that the defendant was asserting any hostile or adverse title to the real estate in question, nor does it appear that the claim which the defendant was setting up was unfounded and cast a cloud upon the plaintiff's title. Admitting every Otis «. Gregory.

averment in the complaint to be true, there is nothing to invoke the jurisdiction of a court of equity to quiet the plaintiff's title. For all that appears, the defendant may have had a valid mortgage on the land, and this may have presented the only obstacle to the sale of the real estate.

It has often been held, and the rule is uniform, that, although the plaintiff in an action to quiet title need not state in his complaint with much particularity the nature of the title or interest claimed by the defendant in or to the real estate in controversy, the complaint must show, either by direct averment or by the statement of facts from which the inference necessarily arises, that the defendant's claim is adverse to, or is unfounded and a cloud upon, the plaintiff's title. Second Nat'l Bank v. Corey, 94 Ind. 457; Conger v. Miller, 104 Ind. 592; Rausch v. Trustees, etc., 107 Ind. 1.

The complaint in the case before us can not be distinguished from that in Second Nat'l Bank v. Corey, supra. The conclusion follows that the assignment of error, that the complaint does not state facts sufficient to constitute a cause of action, is well made.

As it may serve to bring the controversy between the parties to a conclusion, we will consider the questions made upon the answer to which the court sustained a demurrer. Without having made any question upon the complaint, the defendant answered, in substance, that in the year 1873 the plaintiff was a married woman, residing in the State of Michigan, and the owner in her own right of certain real property in that State. That by the statute of the State of Michigan (which is set out in the answer), married women are empowered to contract with reference to, and to convey and mortgage, their separate real estate in all respects as if they were unmarried. It is averred that on the 15th day of October, 1873, the plaintiff and her husband became indebted to the defendant in the sum of four hundred and sixty dollars. This indebtedness was secured by a mortgage executed by the plaintiff on her separate property in Michigan. After

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