In

The action of the court in sustaining the demurrer to the paragraph in question is the only error of which appellants complain. The following are substantially the facts averred in the paragraph in dispute: July, 1852, the board of trustees of the Wabash & Erie Canal were the owners in fee simple of the lands described in the complaint, consisting of 320 acres, situated in White county, Ind. On the 5th day of July, 1852, Austin M. Puett purchased this land from the said board of trustees, and received a certificate of purchase for the same, and entered into possession of the land, and thereafter paid the taxes thereon. In 1856, Puett, for a valuable consideration, sold the lands to Ashabel P. Willard and James G. Gwin, and assigned and delivered to them his certificate of purchase, and they went into possession of said real estate under said sale and transfer. On February 13, 1856, Willard, for a valuable consideration, sold and conveyed the real estate in question by warranty deed to Gwin, and put the latter in full possession thereof under said warranty deed. Gwin immediately made lasting and valuable improvements upon the land, and on the 1st day of April, 1856, he, it is averred, being still the owner in fee simple and in possession of the real estate, sold and conveyed it by a warranty deed, in fee simple, for a valuable consideration, to one George Frain, and put said Frain in full possession thereof, and the said grantee made lasting and valuable improvements thereon. Said board of trustees did not execute a deed for said real estate until December 3, 1857, when, upon the payment of the purchase money for said land, said board, by deed, conveyed the legal title of said real estate to Gwin. The plaintiff Catharine Frain is the widow of George Frain, who died at White county in 1894. Prior to April 1, 1856, she became the wife of said Frain, and continued as such until his death. On October 3, 1857, one Miller recovered a judgment in his favor against the said George Frain in the White circuit court for $716.75, together with a foreclosure of the mortgage upon the said real estate. This mortgage was a purchase-money mortgage, and Mrs. Frain, the appellant, did not join her husband in the execution thereof, and was not made a party to the suit of foreclosure, and had no knowledge or notice of this suit until shortly before this action was commenced. On December 14, 1857, the real estate was sold by the sheriff, under said decree of foreclosure, to one Hays for $10, who, upon payment of his bid, received from the sheriff a deed for said land. It is averred in the complaint that the said George Frain was seised in fee simple of the said real estate while he and Catharine Frain were husband and wife, and that his said wife at no time joined her husband in the conveyance of said real estate. Through mesne conveyances from Hays and wife, appellees acquired all the right, title, and interest of

Hays and his wife under said sheriff's deed in and to the real estate, and their respective interests are set forth in the complaint, and the value of the rents and profits is alleged. Since the death of George Frain, his widow has conveyed, as alleged, in fee simple, to her co-appellants herein, for a valuable consideration, the undivided one-sixth of said real estate, and appellants, as it is alleged, now hold and own the same.

It is contended by counsel for appellants that these facts, considered as a whole, show that George Frain was seised in fee simple of the lands in controversy during his marriage with the appellant Catharine Frain; and, as it further appears that she never joined her husband in any manner in the conveyance of the real estate in dispute, therefore, at his death, she became absolutely seised of the one-third interest which the statute awards her, subject to the purchasemoney mortgage mentioned, and that by rea son of these facts, and the further fact that she was not a party to the action of foreclosure, she is entitled to redeem. Appellees, however, insist that, from the facts, it is disclosed that appellant's husband was never seised, at any time during the coverture, of any other than the equitable title or estate in the land, and of this title, they claim, he is shown to have been devested before his death; hence appellant Catharine Frain, as surviving wife, has no interest in the land.

Section 27 of the statute of descents in this state, being section 2652, Burns' Rev. St. 1894 (section 2491, Rev. St. 1881), provides as follows: "A surviving wife is entitled, except as in section 17 excepted, to one-third of all the real estate of which her husband may have been seised in fee simple at any time during the marriage and in the conveyance of which she may not have joined in due form of law, and also in all lands in which her husband had an equitable interest at the time of his death." Section 2660, Burns' Rev. St. 1894 (section 2499, Rev. St. 1881), provides: "No act or conveyance performed or executed by the husband without the assent of the wife, evidenced by her acknowledgment thereof in the manner required by law, nor any sale, disposition, transfer or incumbrance of the husband's property by virtue of any decree, execution or mortgage to which she shall not be a party (except as provided otherwise in this act) shall prejudice or extinguish the right of the wife to her one-third of his lands, or preclude her from a recovery thereof if otherwise entitled thereto."

This interest of the wife attaches as an incident to the seisin of the husband during the marriage, and no act of conveyance by the husband, nor charge in respect to the land, without the wife joining him therein, can serve to devest or extinguish her interest. Grissom v. Moore, 106 Ind. 296, 6 N. E. 629. As the husband can do nothing, by reason of this statute, that can affect the inchoate in

terest of the wife when it has once attached to the land, it is evident that, if the real estate is sold and conveyed, either directly by himself or through the medium of an officer of the court, as in the case at bar, in satisfaction of a mortgage executed by the husband, the wife not joining, the purchaser takes under such sale nothing more than the interest or title of the husband, which does not embrace the inchoate interest of the wife. Hence it is taken and held by such purchaser subject to the interest of the wife, and, if the mortgage be for purchase money, it is then held subject to her right to redeem in the manner and under the conditions provided by law. This court has held, and properly so, that, under our statutes, the interest of the wife in the husband's real estate is not an incumbrance, but is an estate in the land. It is more than the right of dower as it formerly existed, for there is no reversionary interest in the party who claims through the husband. Bever v. North, 107 Ind. 544, 8 N. E. 576.

The principal question with which we have to deal in this case is: Can George Frain, the husband, under the facts, be said to have been seised in fee simple of the real estate at any time during his marriage? If so, then, by reason of this fact, taken in connection with the other facts alleged in the complaint, appellant would be entitled to the right of redemption which she seeks in this action. Barr v. Vanalstine, 120 Ind. 590, 22 N. E. 965; Brenner v. Quick, 88 Ind. 552. An estate in fee simple is the highest known to the law, and is defined to be one of absolute inheritance, free from any conditions, limitations, or restrictions as to particular heirs. And. Law Dict. p. 451; 1 Bouv. Law Dict. (14th Ed.) 577, 578. It is true that seisin of the husband in fee simple in the land during the marriage is an essential prerequisite to the attaching of the wife's interest. However, in order that her interest may attach, the law does not require nor contemplate that an absolute seisin on the part of the husband during the coverture in all cases must exist. In Tied. Real Prop. § 121, the author says: "In order that dower can attach, the husband must be seised of an estate of inheritance during coverture, but for this purpose it is not necessary that the husband should have the actual corporeal seisin. Seisin in law, with the present right to actual seisin, would be sufficient." See, also, Mann v. Edson, 39 Me. 25; Atwood v. Atwood, 22 Pick. 283; Dunham v. Osborn, 1 Paige, 636; Thomas v. Thomas, 10 Ired. 123; McIntire v. Castello, 47 Hun, 289; Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864.

Accepting the facts as they are averred in the complaint, they disclose that the board of trustees of the Wabash & Erie Canal was in July, 1852, the owner in fee simple of the land involved in this action. On the 5th of that month the board sold the

land to Puett, and issued to him a certificate of purchase. Puett seems to have entered into possession of the land, and paid the taxes thereon,-all of which may be said to have been the exercise by him of acts of ownership. Sometime prior to the 13th day of February, 1856, Puett sold the real estate to Willard and Gwin, and assigned in writing and delivered to them his certificate of purchase. On February 13, 1856, Willard sold and conveyed the real estate in fee simple, as it is alleged, to Gwin, and the said vendee immediately thereafter went into possession and made valuable and lasting improvements thereon. On April 1, 1856, it is alleged that Gwin, being the owner in fee simple of the land, conveyed it by a general warranty deed, for a valuable consideration, to George Frain, and that the latter entered into possession thereof and made valuable and lasting improvements. On the 3d day of December, 1857, after the foreclosure proceedings and before the sale thereunder, the board of trustees of the Wabash & Erie Canal, by deed, conveyed the legal title to the real estate to Gwin. It is true, as appellees urge, that the complaint does not disclose when the mortgage was executed, but it does appear from its averments that the mortgage was for purchase money, and that the wife, Catharine Frain, did not join her said husband in its execution. While the complaint may be said to be open to the objection that it is not as certain and specific in some respects as the rules of good pleading require, still this will not, as a general rule, of itself render it bad on demurrer. City of Connersville v. Connersville Hydraulic Co., 86 Ind. 235, and cases there cited.

Ordinarily, objections to a pleading upon the ground that it is uncertain must be interposed by a motion to make more specific. Peden v. Mail, 118 Ind. 556, 20 N. E. 493. But we think it may be said to be disclosed that George Frain executed the mortgage, for it is averred that the wife did not join her husband in the execution of this instrument. The allegations that the land was con veyed to Frain in fee simple during the marriage, and of his subsequent death, appear at least to make a prima facie case as to her interest in favor of the surviving wife.

But it is insisted by the appellees that the specific averments in a pleading must control the general averments. In this contention counsel for appellees are right. Whether a pleading is or is not sufficient depends upon the substantive facts, and not upon the mere conclusions of the pleader. General statements of facts, as a rule, are controlled by specific facts disclosed in the pleading. Ragsdale v. Mitchell, 97 Ind. 458; State v. Casteel, 110 Ind. 174, 11 N. E. 219; McPheeters v. Wright, 110 Ind. 519, 10 N. E. 634.

Appellees claim that at the time Frain executed the mortgage, and at the time of the foreclosure thereof, he is shown by the spe

cific facts to have held but an equitable title to the land, which, as they contend, he could mortgage or convey without the consent of his wife. They insist that it appears from the specific averments of the complaint that, at the time (April 1, 1856) when Gwin is alleged to have conveyed by warranty deed to Frain, the former was not invested with the legal title; that said title still remained in the board of canal trustees, and was not conveyed to Gwin by that board until December 3, 1857; and counsel for appellees contend, adversely, however, to the contention of appellants' counsel, that this after-acquired title by Gwin did not inure to the benefit of Frain by relation back to the time when Gwin, under his deed of general warranty, as stated, conveyed to Frain. They insist that the fact that the board of trustees conveyed the legal title to Gwin on December 3, 1857, after the decree of foreclosure was rendered, but before the sale thereunder, can in no manner be available to aid or support appellants' cause of action. Appellees say: "When Gwin acquired the legal title, Frain's equitable title had, by relation, passed to the purchaser under the decree of foreclosure as of the date of the mortgage, and necessarily Gwin held the naked title in trust, not for Frain, but for the holder of the equitable title, the purchaser at the foreclosure sale." But if it can be said, under the facts, that Gwin was not invested on April 1, 1856, when he executed his deed of conveyance to Frain, with the legal title to the land, and did not acquire such title until December 3, 1857, still these facts will not serve to defeat the interest of appellant which she claims as the surviving wife. If Gwin, when he executed his deed to Frain, was not invested with the legal title, but subsequently acquired it by a deed from the board of trustees, then the effect and operation, in contemplation of law, of the covenants of warranty in his deed to Frain, would, by relating back, actually transfer to and vest the after-acquired title in Frain, as though it had passed to him by Gwin's deed in the first instance, and Frain could be said, in the eye of the law, to have been seised in fee simple of the real estate on and from April 1, 1856, the date of the execution of the deed by Gwin to him, and the interest of his wife attached as of that date, subject to the mortgage for purchase money. That such would be the result, we think is settled by a large majority of the authorities. The law will not only treat the after-acquired title as being in the former grantor in trust for his grantee, and hold him estopped from asserting it as against the latter or others claiming through him, but it will consider and treat it as though it had actually passed at the time of the conveyance under the warranty deed. 19 Am. & Eng. Enc. Law, pp. 1021, 1022, and the many cases cited in footnote 1, on page 1022. In 2 Devl. Deeds (2d Ed.)

§ 946, the author says: "Where covenants for title are contained in the deed, the afteracquired title will pass with the same effect as if it had originally been conveyed to the grantee and his successors,"-citing many cases in support of the text in footnote 4. Washburn, in his work on Real Property, states the rule as follows: "The title acquired by the grantor who has conveyed by warranty inures eo instanti that he gains the title to his grantee, and vests in him.” Rawle asserts the same doctrine, as follows: "As a general rule, any after-acquired title will inure by virtue of the warranty to the party claiming under such warranty, with the same effect as if it had originally passed." Rawle, Cov. Tit. (3d Ed.) p. 412 et seq. Maupin, in his work on Marketable Titles to Real Estate (section 213), says: "It seems to be established in America that the effect of an estoppel arising from the covenants or recitals by the grantor in his deed is an actual transfer of after-acquired estate to the grantee, so as to obviate the necessity of a second conveyance of the premises." The following authorities also support or affirm this doctrine: 2 Hermann, Estop. § 647; Fisher v. Hallock, 50 Mich. 463, 15 N. W. 552; Woods v. Bonner, 89 Tenn. 411, 18 S. W. 67; Philly v. Sanders, 11 Ohio St. 490. In fact, the same rule is recognized by the decisions of this court. See Booker v. Tarwater, 138 Ind. 385, 37 N. E. 979, on page 391, 138 Ind., and page 981, 37 N. E., and cases cited; Randall v. Lower, 98 Ind. 255.

It must follow, under the facts, and we so hold, that Frain became seised in fee in the lands at the time of the conveyance of Gwin to him, and, that being during the coverture, the wife's inchoate interest immediately attached upon the seisin of her husband. Both parties in this action claim through Frain. Hence the after-acquired legal title, passing, as it did, by relation back to the date of the execution of Gwin's deed, -which we must presume, under the facts. was executed prior to the execution of the mortgage through which appellees claim title, it also inured to their benefit, as, under the foreclosure sale, the legal title of the husband to the lands, subject to his wife's rights, passed to the purchaser at such sale, and therefore such title inures to the benefit of the appellees. Appellees, then, under the circumstances,-holding, as it may be said they do, the interest to which they are entitled in the lands, in fee simple, by virtue of the sale and conveyance under the mortgage to their remote grantor,-certainly cannot be heard to assert that Frain, the common source through whom both parties claim title, was not seised in fee simple at the time he made the mortgage in question; or, in other words, they cannot, under the circumstances, accept the benefits inuring from the after-acquired title, and at the same time deny that Frain was seised in

fee simple at the time he executed the mortgage. The complaint stated a cause of action, and the court erred in sustaining the demurrer thereto. The judgment is therefore reversed, and the cause remanded to the lower court.

SIEVERS v. PETERS BOX & LUMBER CO. (Supreme Court of Indiana. June 15, 1898.) FREIGHT ELEVATORS — NEGLIGENCE IN CONSTRUCTION-MASTER AND SERVANT-SAFETY APPLIAN CES-ASSUMPTION OF RISK-CUSTOM-VICE PRINCIPALS-JUDGMENTS ON INTERROGATORIES-EVIDENCE-WITNESSES-INSTRUCTIONS.

1. Failure to put on safety appliances and to inclose an elevator to be used exclusively for carrying freight does not constitute negligence.

2. The using of a freight elevator by employés to ride up and down on, without the knowledge of the employer, on the first day it was operated, and before plaintiff employé was injured on that day, does not affect the fact that it was made to carry freight only, which was known to plaintiff.

3. Where plaintiff employé, by the exercise of ordinary care, would have known that a freight elevator was not provided with safety appliances, he assumes the risk incident to carriage on it.

4. Plaintiff employé, by accepting the invitation of a co-employé, who had no authority to ask him to ride on the elevator, to ride up to a certain floor where plaintiff had to go, when there were stairways for the use of the employés, with which plaintiff was familiar, accepts the risk.

5. Evidence that the first day a freight elevator was operated, when the injury to plaintiff employé occurred, a number of the employés rode up and down on it, but without the consent or knowledge of the company, does not show a custom of the company to carry its employés on said elevator.

6. Ordinary care is all that an employer need exercise towards an employé.

7. That an elevator was constructed to carry freight exclusively; that a millwright, an employé, was directed to attend to its construction; that he was a reasonably competent man for that work; that the worm gearing used was used by some of the best manufacturers of elevators, and was of itself a sufficient safety appliance; that the iron work was manufactured by a competent and reputable firm; that the worm pinion, which slipped its shaft, and caused the elevator to drop, and injure plaintiff employé, on the first day of its operation, was examined by said millwright before operating the elevator, and found to be properly keyed to the shaft, and put together; that an inclosed elevator would interfere with the work to be accomplished,-fails to show negligence on the part of the owners in constructing the elevator, or in failure to inclose and provide safety appliances, so as to make them liable for the injury.

8. An employé who is directed to construct an elevator for the building is, in such construction, a vice principal, whose negligence is imputable to the master, where another employé is injured by using it after its construction.

9. A motion for judgment on the answers to the interrogatories notwithstanding the general verdict will not be granted unless the verdict and answers are absolutely irreconcilable.

10. Where there are no facts found from which the court could assess plaintiff's damages for personal injuries, judgment will not be given in his favor on the answers to the interrogatories, in disregard of the adverse verdict.

11. It is no ground for a new trial that the answers to the interrogatories are not sustained by the evidence, or that they are contrary to law, unless the answers are so inconsistent with the general verdict that judgment should be rendered thereon notwithstanding the general verdict.

12. Objections to evidence must be specific in order to be available on appeal.

13. Evidence is admissible as to how an elevator, which caused plaintiff's injury by a defect in its machinery, was operated after the accident, where it was shown that there had been no change in it since the injury.

14. Where an elevator injured plaintiff by reason of a defect in or about its gearing, evidence is not admissible to show that after the injury said gearing was fastened differently to the shaft.

15. A question, "After you saw the elevator, * ** what did Kaiser say about it, if anything?" is not objectionable as being suggestive. 16. A witness may give his opinion that a worm gearing in an elevator is a safe appliance for hauling freight, where he has observed such gearings, though he is not an expert, since the facts cannot be placed before the jury.

17. The discretion of the trial court in refusing to exclude the jury during an offer of certain proof will not be disturbed on appeal except in clear cases of abuse.

18. Instructing that "the burden is on plaintiff to prove the material allegations of the complaint, and he cannot recover unless he has made such proof," is not erroneous, on the theory that it is sufficient if either party makes such proof, where there is no evidence in the record to show that defendant gave any evidence tending to support the complaint.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Action by Louis Sievers against the Peters Box & Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

France & Colerick and Colerick & Colerick, for appellant. Miller, Winter & Elam, for appellee.

MONKS, J. This action was brought by appellant against appellee to recover damages for personal injuries which he sustained by reason of the falling of an elevator in the factory of appellee. The cause was tried by a jury, and a general verdict returned in favor of appellee, and also answers to interrogatories submitted by the court at the request of the parties; and the court, over a motion for a judgment in his favor for $5,000 on the answers to the interrogatories, notwithstanding the general verdict, and for a new trial, rendered judgment in favor of appellee.

It is first insisted by appellant that the court erred in overruling his motion for judgment on the answers to the interrogatories, notwithstanding the general verdict. It is found by the answers to the interrogatories: That appellee was a corporation engaged in the manufacture of furniture in the city of Ft. Wayne, and that appellant, an employé of appellee, was injured on the 15th of December, 1892, by the falling of an elevator in appellee's factory. That appellee directed Kaiser, one of its employés, to construct a freight elevator, and gave him complete authority to determine the kind of ele

vator and the manner of its construction. Said Kaiser had never constructed an elevator, or aided in the construction of one, prior to this time. He was a competent millwright, and had followed the business for 20 years, and had large experience in putting in mill machinery of all kinds, including worm gearing, and was a reasonably competent man to build the elevator in question. Appellee instructed and authorized him to procure from the Ft. Wayne Iron Works whatever was necessary and proper to construct and equip said elevator. Said Ft. Wayne Iron Works was a competent and reputable manufacturer of such materials; and Kaiser procured said firm to make and construct the wheels, pulleys, and the worm gearing and shaft for said elevator, and he had full and complete charge of the construction of said elevator, which he constructed and attempted to put in operation in appellee's said factory, it being the one upon which appellant was injured. Said elevator was constructed and intended by appellee for carrying freight only, and not for passengers, or for the use of employés in riding to and from their places of work. Said elevator was operated by what is known as a "worm gearing," and such worm gearing is used by some of the best manufacturers of elevators, and was a reasonably proper appliance to be used in the construction and operation of an elevator. The worm gearing and other appliances for propelling said elevator were near the ceiling of the first floor of appellee's factory, in full view of a person about to ride on said elevator. There were no safety appliances of any kind attached to or used in connection with said elevator to prevent the same from falling while persons were riding in or on the same, excepting such protection as might be afforded by the worm gearing; and such worm gearing was, in and of itself, a sufficient safety appliance, if properly fastened on the shaft, and it was the only appliance that should have been used; and said elevator was not, at the time appellant was injured, unsafe for persons to ride upon by reason of the absence therefrom of proper and sufficient safety appliances. If at any time the elevator was above the first floor, and the worm gearing became displaced or disabled, the elevator would fall. While said elevator was being constructed, or after its completion, the attention of the president of appellee was called to the absence therefrom of safety appliances, and the necessity of their use was suggested to him. elevator was completed on December 15, 1892, when the first attempt was made to operate it. During the forenoon of that day, the president of the appellee company called the attention of Kaiser to the fact that there was something wrong with the elevator, and that it did not work right. On said 15th day of December, the day appellant was injured, said Kaiser was in charge of said elevator,

Said

experimenting and testing the same. Appellant was a carpenter, and had been in the service of appellee as such, working in and about appellee's factory, from April, 1892. until the time of his injury, on December 15th, and on said day was engaged in laying a floor on the third floor of said factory, or in an addition thereto, then in process of construction. On said day appellant was in the factory, on his way to his work on one of the upper floors of said factory, when he was invited by said Kaiser to ride on said elevator; and he entered on said elevator for the purpose of being conveyed to where he was required to work, and he entered upon and rode upon said elevator solely for his own convenience or pleasure, and without invitation or request from appellee or any of its officers, but because he was invited by said Kaiser, and not otherwise. While appellant was on said elevator, in response to said invitation, the elevator fell, and thereby fractured appellant's right leg. Appellant, when he accepted the invitation of said Kaiser to ride on said elevator, supposed and believed that said Kaiser had authority from appellee to extend to him said invitation, and, at the time he got upon said elevator, believed that he could with safety ride thereon. Prior to the time appellant was injured. no written or printed notice was posted in appellee's factory, stating that employés must or should not ride upon said elevator; nor was appellant, prior to the time he was injured, notified by appellee, or any other person, that employés were not permitted to ride on said elevator, or that the same was unsafe or dangerous to ride in or on. pellant knew, prior to his injury, that a new freight elevator was in process of construction, and he did not know or have any reason to believe that it had ever been operated before the day he received his injuries. Said appellant was a practical carpenter, of many years' experience, and said elevator was so constructed that it was apparent to any person of ordinary intelligence, looking at the same, that it was intended to carry freight only. and not passengers; and appellant could, by the exercise of reasonable care at the time he went on said elevator, have discovered that said elevator was intended for carrying freight only, and that the same was not provided with dogs, clutches, and brakes. There were safe and suitable stairways provided by appellee for appellant and other employés to go from the first to the third floor of said factory, and the new addition thereto; and appellant had frequently used the same, and was familiar with them and their use for going to the place where he was working on the day of his injury, and appellant had no duty to perform with reference to said elevator, and could have gone safely to his place of work at the time of the injury without going upon said elevator, and could have performed all of his duties for which he was employed by appellee without going upon.

Ap