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Otis v. Gregory.

The mortgage in question, although absolutely void, was, nevertheless, an apparent cloud or encumbrance on the plaintiff's title. She had, therefore, a clear equitable right to invoke the aid of the court to procure its cancellation. This was the appellee's equity; it was the equity which she sought the aid of the court to enforce. The mortgage which the plaintiff sought to have cancelled grew out of a transaction in which the appellant undertook to aid her in purchasing the land covered by the void mortgage. The subject-matter of the suit, therefore, comprehended and brought within the jurisdiction of the court the entire transaction. When a court of equity once obtains rightful jurisdiction of a subjectmatter, it avails itself of the opportunity to investigate and decide all incidental matters necessary to enable it to make a full and final determination of the whole controversy. With the equities of the plaintiff, it settles any and all legal or equitable rights of the defendant pertaining to the same subject-matter, and thus avoids a multiplicity of suits. Souder's Appeal, 57 Pa. St. 498.

Taking the facts put forward in the answer as true, has the appellant any equity within the principles already laid down which the court may require the appellee to recognize, as a condition upon which it will afford her the relief to which we have seen she is entitled? Has the appellant an equitable right, upon the facts stated in his answer, to maintain a bill to declare and enforce a lien against the appellee's LaPorte county property? If he has, the maxim "He who seeks equity must do equity" imperatively requires that relief be denied the plaintiff, except upon condition that she consent that the decree shall also adjust the corresponding equities of the appellant. That the appellant has a right, cognizable in a court of equity, growing out of the transaction involved in the suit, is demonstrable upon authorities which leave the subject in no sort of doubt.

A vendor's lien for unpaid purchase-money will be declared and enforced against property purchased and held by a marOtis v. Gregory.

ried woman precisely as in the case of a person who is under no legal disability. Perry v. Roberts, 30 Ind. 244; Haugh v. Blythe, 20 Ind. 24; Huffman v. Canble, 86 Ind. 591; Martin v. Cauble, 72 Ind. 67; Haskell v. Scott, 56 Ind. 564.

The substance of the transaction between Mrs. Gregory and the appellant was that the former became indebted to the latter for a specified amount of the purchase-money due on the LaPorte county land, for which indebtedness the appellant received no security. If, at the time Mrs. Gregory sold her Michigan property, she had paid the appellant the amount of his secured debt, and the latter had at her request applied the money so paid upon the purchase price of the LaPorte county land, it is clear, upon authority, that,as between the parties, a vendor's lien would have resulted by implication of law in favor of the appellant. Substantially, that was the nature of the transaction. As we said, in effect, in the recentcase of Barrett v. Lewis, 106 Ind. 120, the lien which arises in favor of the person to whom purchase-money is due is peculiarly of equitable cognizance. Equity has regard in such cases, as in others, for the substance, and not for the mere form. If, upon looking through the transaction, it appears that the debt which the party owes is in fact part of the purchase price of land, acquired in the transaction out of which the debt arose, a lien will be declared upon the land in favor of the person to whom such debt is due. The substance of the arrangement between the parties here concerned was, as the admitted facts made it appear, that Mrs. Gregory and her husband owed the appellant a debt which amounted to five hundred dollars. This debt was secured by a mortgage, which created a valid encumbrance upon her property in Michigan. She sold the Michigan property and desired to purchase property in Indiana; but to enable her to make the purchase, it became necessary that she should realize the full amount of the price at which she sold the property in Michigan. It was, therefore, agreed that the Vol. 111.—33

Otis r. Gregory.

appellant should release his mortgage on the property sold, so as to enable the appellee to receive the whole of the purchase-money, which was to be applied in payment of the property purchased, so that, instead of owing her vendor part of the purchase price, she would owe the appellant the amount which he had in effect paid, or transferred to her to be paid, on the LaPorte county land.

In the case of Austin v. Underwood, 37 111. 438, it was held that where a party purchases land and procures the purchase-money to be paid by a third person as a loan to the purchaser, the money thus loaned will be regarded as purchase-money as against the person for whom it was paid. Magee v. Magee, 51 111. 500; Carey v. Boyle, 53 Wis. 574; Jones v. Parker, 51 Wis. 218; Carey v. Boyle, 56 Wis. 145. The lien in such a case results from the transaction between the parties, and is manifested by all the circumstances attending each particular case.

The controlling question in cases of this character is, whetiier or not the debt owing is, as to the debtor, the balance due for purchase-money. Barrett v. Lewis, supra; Boyd v. Jackson, 82 Ind. 525; Nichols v. Glover, 41 Ind. 24.

In the case of Dwenger v. Branigan, 95 Ind. 221, the facts were, that one party furnished the other fifteen hundred dollars in money for the purpose of paying the purchase price of certain real property, it being agreed at the time that the party furnishing the money should have a lien on the land purchased. A vendor's lien was declared in favor of the person furnishing the money. The principle which ruled that case fully sustains our conclusion here. The appellant having, at the appellee's request, in effect paid five hundred dollars of the purchase-money for her under an agreement that he was to hold a lien upon the land purchased, although the particular lien contemplated has miscarried, he will be subrogated by a court of equity to the rights of the vendor who received his money.

Equitable subrogation is the creature of courts of equity, The State, ex rel. Steigerwald, v. Thomas.

and obtains regardless of any contractual relations between the parties to be affected by it. Courts of equity administer its principles whenever it is necessary to secure substantial justice, without regard to form. This is the appellant's equity. Before the appellee can have the relief which she demands, she must recognize the corresponding equity of the appellant. "It is always incumbent upon the party asking the interposition of a court of equity in his behalf, to show a perfect equity." Piatt v. Smith, 12 Ohio St. 561; Hill v. Nisbet, 100 Ind. 341. Of course, upon the answer as it is pleaded,the appellant can have no affirmative relief. Such relief can only be obtained by setting up the facts by way of cross-complaint. But a defendant is not compelled to become an actor and ask affirmative relief. He may rely upon the facts as an equitable defence to defeat his adversary's claim. East v. Peden, 108 Ind. 92.

Our conclusion is, that the facts pleaded were sufficient to defeat the appellee's right to any relief.

Judgment reversed, with costs, with directions to the court below to carry the demurrer to the answer back and sustain it to the complaint, with leave to both parties to reform their pleadings.

Filed Sept. 20,1887.

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No. 12,744.

The State, Ex Rel. Steigerwald, V. Thomas.

Witnesses.Order Separating.Disobedience of Order.—Where there is an order separating the witnesses, a party can not be deprived of the testimony of a witness who has been present throughout the trial, where it was not known at the time of the order, either by the witness or the party calling him, that his testimony would be required, or where the presence of such witness was not by the procurement or connivance of such party, nor attributable to any fault on his part or that of his counsel.

The State, cz ret Steigerwald, r. Thomas.

Evidence.Impeaching Testimony.—Eiror to Exclude.—It is error to exclude competent impeaching testimony, properly and seasonably offered, where no limit to the number of such witnesses has been 6xed by the court, although other impeaching testimony has been offered and received.

Same.— Witness.— Practice.—Where the question is as to the right of a witness to testify at all, and not as to the competency of his testimony, the party ottering him is not required to state what he expects to prove by such witness.

From the Jefferson Circuit Court.

CL A. Korbly and W. 0. Ford, for appellant.

E. G. Leland and S. E. Leland, for appellee.

Elliott, J.—The principal question in this case is thus presented by the record: "The plaintiff called William Johnson, a competent witness of full age, to the stand, who was thereupon duly sworn by the clerk. Thereupon the defendant asked the witness the following preliminary question: 'Were you present in the court-room during the examination of the witnesses, and did you hear their testimony?' and the witness answered, ' Yes, but I did not know I was to be a witness.' The defendant thereupon objected to the examination of said witness on the following grounds: Because the court, at the commencement of the trial, ordered a separation of the witnesses on both sides, and sent them out of the room, and this witness was present and heard the evidence. Thereupon the plaintiff, by C. A. Korbly, stated to the court that the plaintiff did not know that said William Johnson was or would be a witness in the cause, or that he knew anything of the facts which the plaintiff would now propose to prove, until after the preceding witness, William Brown, had concluded his testimony, at which time he was informed by a member of the bar, not engaged in the cause, that William Johnson would be a good impeaching witness against David Francis, and that William Johnson was not present in disobedience of the order of the court."

It appears from the statement we have copied from the record that neither Johnson nor the relatrix was in fault, for

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