lant has taken this appeal. The appellant has assigned several errors, but, in view of our conclusion, we need only notice one of them. During the progress of the case at special term the appellant filed his demurrer to the second paragraph of the answer of the appellee, which was overruled by the court, and an exception reserved. We have concluded to set the paragraph out in full in this opinion. It reads as follows: of said notes to be presented at said bank, where the same were payable, supposed that said notes had all been paid. And this defendant further shows that, discovering that a large number of said notes had not been paid, this defendant, in the year 1879, called upon the plaintiff, and notified him that he was ready and prepared to pay all of said notes, and that he was desirous of doing so, and of stopping the interest thereon; and thereupon it was agreed by and between this defendant and said plaintiff that said plaintiff should produce all of said notes that had not been paid, and this defendant should pay the same; and that accordingly, at said date, the plaintiff did produce for payment a large number of the said notes, and thereupon this defendant paid said notes in full, principal and interest; and then and there this defendant demanded that the plaintiff should produce all the notes which he held, given by this defendant upon said purchase, in order that he might pay the same, and thus stop the interest, that he might take proper steps to secure himself from loss by instituting suits against the several persons who had assumed and agreed to pay said notes; that, thereupon, said plaintiff agreed with the defendant liability on the account of any other of the notes so executed by this defendant upon said purchase, and that the plaintiff would look only to the parties who had assumed and agreed to pay the same, and who were primarily liable for their payment; and that, by "The defendant, John H. Vajen, for his further separate answer to the complaint herein, says that he admits the execution of the promissory notes mentioned and described in the several paragraphs of the complaint herein, and exhibited with the said complaint, but he says that the plaintiff ought not to have or maintain this action for the reason that said notes were each executed as part of the consideration of certain parcels of real estate, situated near the city of Indianapolis, each several note being a part of the consideration for a separate and distinct parcel of real estate; that said notes were only a small portion of the promissory notes executed by this defendant at their date; that, at the date of said notes, this defendant purchased from said Abner Pope, the payee of said notes, three hundred and eighty-that he should be released from all further five (385) parcels of real estate, and the purchase price for each several parcel was divided into six (6) equal installments, payable annually, one installment upon each of said lots each year for a period of six (6) years, making a total of twenty-three hundred and ten (2,310) notes so executed by this defend-reason of said agreement of said plaintiff to ant to said Abner Pope upon said purchase; release this defendant from all further liabilthat, immediately after said purchase, this ity upon said notes, this defendant was led defendant sold said three hundred and eigh- to take no further steps in the matter looking ty-five (385) parcels of land to George W. to his own protection as against said parties Parker and Samuel Hanway; and that, upon who had assumed and agreed to pay said said sale to said Parker and Hanway, they, notes. Wherefore this defendant says that as part of the consideration of said purchase the plaintiff herein is now estopped from by them, assumed and agreed to pay the said prosecuting this action against him as the promissory notes so executed by this defend-maker of said notes. And this defendant ant to said Abner Pope; and that, thereafter, now prays judgment for his costs, and for all said Parker and Hanway sold said lots to other proper relief."" divers and sundry parties, the purchaser of We are of the opinion that the answer is each of said lots, as a part of the considera-bad, and that the court at special term erred tion for such purchase, assuming and agree-in overruling the demurrer thereto, and erred ing to pay the notes given by this defendant in general term in affirming the judgment at for said lots upon his purchase thereof from special term. The answer, to be good, must said Abner Pope,-of all of which facts the be so upon at least one of three grounds: said Abner Pope had full information, and First, that the facts alleged constitute a nothat, after said sale by said Parker and Han- vation; second, a release; and, third, an esway, said Abner Pope and the plaintiff toppel. In every novation there are four elherein proceeded to collect the moneys from ements: (1) An existing and valid contract; said owners of said lots, who had assumed (2) all parties must agree to the new conand agreed to pay the same, and dealt with tract; (3) the new contract must be valid; said assumers as payors of said notes, and as and (4) the new contract must extinguish the persons who were primarily liable for the the old one. Morris v. Whitmore, 27 Ind. payment of said notes; that said notes were 418; Glasgow v. Hobbs, 32 Ind. 440; Jewett made payable at Fletcher's Bank, but that v. Pleak, 43 Ind. 368; Crim v. Fitch, 53 Ind. they were not presented at said bank for 214; Clark v. Billings, 59 Ind. 508; Fensler payment when due; and this defendant, v. Prather, 43 Ind. 119; Manufacturing Co. knowing that the payment of said promisso- v. Probasco, 64 Ind. 406; Parsons v. Tillman, ry notes had been assumed by said purchas-95 Ind. 452; Kelso v. Fleming, 104 Ind. 180, ers, and knowing that said Pope was dealing 3 N. E. Rep. 830. It will hardly be neceswith said assumers, by reason of the failure sary for us to take the time to explain where his notes, and then brought an action for their cancellation, or waited until sued upon them, and kept his tender good by bringing the money into court. The facts pleaded do not constitute an estoppel. Much of what we have said with reference to the question of consideration is applicable to the question of estoppel; but, in addition, we may add that there is no averment tending to show that any one of the parties who assumed to pay all or any one of the notes is not at this time in as good condition financially as on the day when the agreement was made; nor is there any averment tending to show that any action which the appellee then had a right to bring will not be equally as available now as then. The opinion in the case of Kelso v. Fleming, supra, covers the question presented by the record in this case, and has left very little to be said at this time. The judgment is reversed, with costs, with directions to the court below to sustain the demurrer to the second paragraph of answer. in the facts pleaded in the answer fall short | he very much desired to do; or he could have of showing a novation, and especially need made a tender to the appellant and demanded we not do so as appellee's counsel do not contend there was a novation. To constitute a valid release there must be a valuable consideration paid therefor. See Kelso v. Fleming, and authorities cited. No such consideration is shown. When Parker and Hanway purchased the real estate from the appellee, and as a part of the consideration therefor assumed and agreed to pay the notes that had been executed by the appellee, they became primarily liable for the payment of the debt, and as between the appellee and them the relation of principal and surety existed, they being the principals and he the surety. This, however, in no way changed or altered the appellee's liability to the appellant. It was held in the case of Sefton v. Hargett, 113 Ind. 592, 15 N. E. Rep. 513, "that the purchaser of real estate who assumes the payment of incumbrances on the land thereby becomes, as to those previously liable, the principal debtor, without regard to the original relations of the parties, or whether the creditor consented thereto or not;" and further, "in such a case, if the creditor has knowledge of the facts, and extends the time of payment without the consent of those who occupy the relation of sureties, the latter will be discharged." But it is not averred or contended that the appellant extended the time of payment to any one, or made any agreement with reference to the payment of the notes, except so far as an agreement is alleged with the appellee. Conceding that there was an agreement between the appellant and the appellee that the former would no longer look to the appellee for payment of Where a testator bequeaths all his estate to the notes, but would look to those who had power to her, as executrix, to sell any of the estate his widow for life, remainder to his children, with purchased the real estate and assumed pay- for the payment of his debts, or for making adment of the notes, the agreement was not one vancements to the children, and she, without qualithat could be enforced unless bottomed upon tying as executrix, sells part of the estate, and gives the proceeds to some of the children, they a valuable consideration. Kelso v. Fleming, are, after her death, liable to account to their co104 Ind. 180, 3 N. E. Rep. 830. The gran- heirs without administration being had on the testees of the appellee, by their purchase and as- tator's estate, where it appears that he left no debts. sumption, having become the principal debtAppeal from circuit court, Monroe county; ors, the appellant had a complete right of ac-E. D. PEARSON, Judge. tion against them as well as against the appellee at the time the agreement is alleged to have been made for his release. Birke v. Abbott, 103 Ind. 1, 1 N. E. Rep. 485; Davis v. Hardy, 76 Ind. 272; Josselyn v. Edwards, 57 Ind. 212; Kelso v. Fleming, supra; Sefton v. Hargett, supra. The agreement did not give to the appellant an advantage or legal right which he did not already have. The appellee surrendered no legal right, nor was he placed in a different position, to his prejudice, because of the promise made by the appellant. It was not necessary to the right of the appellee to maintain legal proceedings against those who had assumed to pay his notes that he first pay them; but had payment been a condition precedent to his right of action, he was at liberty at any time to leave with the bank the money necessary to pay the notes, and this would have stopped the interest, which he alleges in his answer ELLIOTT, C. J. Inasmuch as the terms of the agreement are explicit, and there was a surrender of a right by Vajen on the faith of the appellant's promise, I believe the agreement valid, and the answer good. I therefore dissent. (120 Ind. 333) ROBERTSON et al. v. ROBERTSON et al. B. Crane, for appellants. tine, for appellees. Ristine & Ris MITCHELL, J. This suit has arisen out of a controversy between the heirs of James D. Robertson, who died testate on the 8th day of April, 1867, leaving his widow, Mary A.. Robertson, and seven children, surviving. The testator devised and bequeathed to his widow all his real and personal property, to be held and enjoyed by her during the period of her natural life, with remainder over to his children, share and share alike. The widow was appointed executrix of the will, with power, in case it became necessary to pay debts or to make advancements to any of the children, to sell any or all of the real or personal estate at private sale, or in such manner, and upon such terms of credit, as she might think proper, and to execute conveyances to the purchasers in fee-simple. The will provided that whatever real or per- part of the testator to create an absolute essonal estate remained in the hands of the tate in fee. Tower v. Hartford, 115 Ind. 186, widow at her death should be equally divided, 17 N. E. Rep. 281; Van Gorder v. Smith, 99 share and share alike, among the testator's Ind. 404. Even though there be a devise children then living, and the descendants of over, an absolute power of disposition may such as were then dead, taking into consid- create an absolute estate in the first taker, if eration all advancements made by the testa- the power of disposition is plainly inconsisttor, or by his widow. The widow elected to ent with the purpose to create an estate for take under the will, and it is alleged that she life. The power of disposition in the present advanced various sums to the children re- case having been conferred upon the widow spectively. It also appears that she sold a in her character as executrix, and in order to large part of the estate, and loaned of the pro- enable her to accomplish certain purposes ceeds sums amounting to $5,000 to two of the having no relation to her own benefit, her essons, Charles T. and Walter Robertson, which tate was not enlarged by the power so as to they agreed should be accounted for to the make it absolute. By the terms of the will other children at her death; and that, during the widow was entitled to the rents and profthe life-time of their mother, and since, the its of the real estate, and to the use, interest, sons above named came into possession of and income from the personal estate during property and money belonging to the estate her natural life. These were at her disposal, of the value of $5,000, in addition to the absolutely, during her life-time, and what reamount loaned to them, which it is alleged mained in her hands, if derived from the they still retain. It is alleged that, during sources above indicated, at her death became the life-time of their mother, Charles T. and part of her estate, to be disposed of according Walter sold and carried away from the real to law. If she sold any property derived estate devised by the testator large quantities from the estate, the proceeds remaining after of stone and timber, said to be of the value of paying the debts of the testator and making $3,000, the proceeds of which they retain; advancements to his children constituted a and that, after the death of their mother, trust fund for the benefit of the latter. Anthey entered upon the real estate remaining derson v. Crist, 113 Ind. 65, 15 N. E. Rep. unsold, and appropriated the rents and prof-9, and cases cited; Beshore v. Lytle, 114 Ind. its. It appears that the widow died in 1885, never having qualified as executrix, and that no letters of administration ever issued upon the testator's estate. The debts have all be n paid. Three of the children died after the death of the testator, and during the life-time of the widow. This action was brought by the surviving brothers and sisters, and the descendants of those who have died, against Charles F. and Walter Robertson, to compel them to account for the property received by them, which it is alleged they hold in trust for the plaintiffs. The court sustained a demurrer to the complaint. The will vested in the widow an estate for life, in her own right, in all the real and personal estate of the testator, with the power, as executrix, to sell the whole or any part thereof, in either of two contingencies: (1) She had power to sell and convey in the event it became necessary to do so in order to pay debts; or (2) in case she saw fit, in her discretion, to make advancements to the testator's children. The widow had no general unlimited power of disposition as devisee or legatee. Whatever power was committed to her in that respect was given her as executrix of the will, for defined purposes, and the case is not, therefore, influenced by the rule which obtains when a devise or bequest is made to one for life, coupled with a general unlimited power of disposition. Where the devisee of a life-estate has an unqualified right to sell, with the power of spending the proceeds at pleasure in his life-time, or of disposing of it by will, there is obviously no ascertained part upon which a trust can attach, and the power to sell is construed, in the absence of a bequest over, as indicating an intention on the "A mere al 12, 16 N. E. Rep. 499. The children of the debts, and that the entire account between | which they inherited from said Samuel; the the heirs may be adjusted upon equitable said Charles S. Ladd, deceased, being one of terms by a court of equity. It is settled that, the heirs. It is alleged in the complaint, where there are no debts, and nothing besides and contended by the appellant, that appelto be done, the account may be adjusted be- lee, Eli B. Marshall, as administrator of the tween the heirs without the expense of an ad- estate of Charles S. Ladd, and Joshua Marministrator. Salter v. Salter, 98 Ind. 522, shall, while said Joshua was the duly-apand cases cited; Gale v. Corey, 112 Ind. 39, pointed and acting guardian of the plaintiff's 13 N. E. Rep. 108, and 14 N. E. Rep. 362, ward, colluded together, and procured the and cases cited. The complaint states facts allowance of a pretended mortgage debt to sufficient to constitute a cause of action for said Joshua, amounting to something over an accounting in relation to the matters per- $2,000. And upon behalf of the defendants taining to the trust, and it was error to sus-it is claimed that said claim was just, due, tain the demurrer to the complaint. The judgment is reversed, with costs. (120 Ind. 323) BROWN v. MARSHALL et al. (Supreme Court of Indiana. Oct. 15, 1889.) CLAIMS AGAINST DECEDENTS' ESTATES-TRIAL. 1. In an action to set aside the allowance of a claim against an estate, evidence that the claimant, the decedent, and others made a parol partition of certain land, that the claimant sold part of the land to the decedent, and that the claim in question was for the purchase price of such land, is admissible. 2. It is not an abuse of judicial discretion to refuse to allow plaintiff to introduce, in rebuttal, evidence of admissions made by a defendant who has testified in chief on behalf of plaintiff. Appeal from circuit court, Grant county; R. T. ST. JOHN, Judge. Steele & Kersey, for appellant. Will H. Charles, for appellees. OLDS, J. This is an action brought by the appellant, Thaddeus Brown, as guardian of Joshua A. Ladd, minor heir of Charles S. Ladd, deceased, against Charity Marshall, Eli B. Marshall, and the other appellees, to set aside the final report of said Eli B. Marshall as administrator of the estate of said Charles S. Ladd, deceased, and the allowance of a claim against said estate; also to set aside the partition of real estate formerly owned by Samuel Ladd, the guardian of said minor. Issue was joined on the complaint, and a trial had, resulting in a finding and judgment for the appellees. The appellant filed a motion for new trial, which was overruled, and exceptions. The overruling of the motion for new trial is assigned as er ror. The first question presented by the motion for new trial, and contended for by counsel for the appellant, is that the finding of the court is not supported by sufficient evidence. The rule is so well settled that this court will not reverse a case on the weight of the evidence that we need not cite authority to support it. We have examined the record, and find there is evidence sufficient to support the finding. The next question is, the appellant contends that the court erred in overruling appellant's motion to strike out the testimony of certain witnesses in relation to a parol partition of certain real estate between the widow and heirs of Samuel Ladd, deceased, and owing to the said Joshua, and was properly allowed by the court; that Samuel Ladd died owning 200 acres of land in Grant county, leaving surviving him as his only heirs at law his widow, Charity Marshall, and four children, viz., Cicero, Isabelle, Ruth, and said Charles S.; that after his death the children became the owners of 40 acres more land; that Cicero died in 1878, and after his death the widow and other children made a parol partition of all of said land, a portion being set apart to each, a portion being set off to said Charles S., with the agreement that he should support his mother, and that they each took possession of their respective tracts; that afterwards Ruth and her husband, William R. Marshall, one of the appellees, sold the portion they were to have by the partition to Joshua Marshall, and Joshua Marshall sold a portion of the land so purchased by him to said Charles S. Ladd for the sum of $1,650, and, by the direction of Joshua, Ruth and her husband conveyed that part of the land set apart to her, and purchased by Charles S. of Joshua Marshall, direct to Charles S., instead of conveying the same to Joshua, and Charles S. executed a mortgage on the same to said Joshua Marshall for $1,650, the purchase price, and that said mortgage was unpaid at the time of the death of Charles S., and was the mortgage debt which Joshua Marshall filed against the estate of said Charles S., after the said Eli B. Marshall was appointed administrator of his estate, and was allowed by the court,-at the time it was allowed, amounting to over $2,000; and the court permitted testimony to be introduced relating to the parol partition of the land. In this there was no error. The only other alleged error assigned and discussed was the refusal of the court to allow a witness to testify to a statement of Charity Marshall, in which she said that "there was never any division of the Samuel Ladd land, except the one in which she got 28 acres set off to her on the south side; that she was sure of it. If there had been, she would certainly recollect it." Appellant had used said Charity as a witness in chief, and then appellant offered to make this proof, after, under the rules of practice and the regular order of conducting trials, the evidence had closed, and after appellant had put one of the witnesses by whom he proposed to make this proof on the witness stand in rebuttal, and he had testified that said Charity had "said no such partition had been made," | fixing the penalty, which reads thus: "And and said Charity had been called as a witness, upon conviction thereof shall be imprisoned and explained the statement. At this stage of the case the admission of such evidence was within the discretion of the court, and there was no abuse of discretion in rejecting it. Counsel have gone into minute details in the history of the case, and made an extended argument in the cause. They discuss the irregularity and validity of the mortgage debt in favor of Joshua Marshall, allowed by Eli B. Marshall, as administrator of Charles S. Ladd, and the various transfers of the land; but if the debt was a valid and just one, and the sales and transfers of the land were made in good faith, and for the best interest of the ward, the allowance of the claim and transfer will not be set aside for mere irregularities in the allowance of the claim, or by reason of the relations of the parties. Evidence was introduced tending to prove the legality and fairness of the mortgage claim allowed, and the good faith characterizing the transaction; and the court trying the cause has passed upon the evidence, and found for the appellees, and this court will not disturb the finding. We find no error in the record. Judgment affirmed, with costs. Appeal from circuit court, Decatur county; SAMUEL A. BONNER, Judge. John S. Scobey, for appellant. Michener, Atty. Gen., for appellee. Louis T. in the state-prison not more than twenty-one years, nor less than one year, and fined not exceeding double the value of the property destroyed." It is impossible to escape the conclusion that the penalty cannot be enforced unless some property has been actually destroyed or injured by fire. There is no elasticity in statutes defining criminal offenses, and their meaning cannot be enlarged by construction, nor can the courts supply omissions. That can only be done by the legislature. Where there is no penalty denounced for a statutory crime, none can be prescribed by the judiciary. The judgment must be and is reversed. PECK V. SIMS. (120 Ind. 345) (Supreme Court of Indiana. Oct. 16, 1889.) JUDICIAL NOTICE-EXECUTION SALE-DESCRIPTION -QUIETING TITLE-PARTIES. 1. The courts of a state will take judicial notice of the fact that a particular legal subdivision of a section of land in that state is not fractional. 2. A description of land as "the fractional east half of the south-east quarter of section 22, township 23, range 10 east, containing sixty-one acres, more or less," when the section in question is not fractional, is insufficient to pass title on sheriff's sale. 3. Under Rev. St. Ind. 1881, § 251, which provides that every action must be prosecuted in the name of the real party in interest; and section 1073, which provides that any person having the right to recover land, or to quiet title thereto in the name of any other person, may do so in his own name, the grantee of land cannot bring suit to quiet title in the name of his grantor, though the latter was out of possession when he conveyed. Appeal from circuit court, Blackford county; B. G. SHINN, Special Judge. Wm. A. Bonham and C. E. Shipley, for appellant. Carroll & Pierce, for appellee. COFFEY, J This action was commenced ELLIOTT, C. J. This case is here for the in the Blackford circuit court to set aside a second time. 119 Ind., 21 N. E. Rep. decree entered in an attachment proceeding, 911. When it was here before, the appel- and to quiet title to the land described in the lant's contention was that the indictment complaint. The complaint, omitting the was bad because it did not state the facts con- formal parts, is substantially as follows: stituting the crime of an attempt to commit James M. Sims, for the use of Peter Drayer, arson, and this contention we sustained. The complains of Elias D. Peck, and says that the point is made on the indictment before us on plaintiff is the owner of the following dethis appeal that the statute does not pre-scribed real estate in Blackford county, Ind., scribe any penalty for an attempt to commit to-wit: The east half of the south-east quararson, and we are reluctantly driven to sus-ter of section 22, township 23 north, of range tain the appellant's position on this question. 10 east, except twenty acres off of the north The statute is confused and lame. Rev. St. end thereof, and also except one acre off of § 1927. The offense really defined is com- the south-east corner thereof; that defendant plete, and the penalty enforceable, only when claims to be the owner of said land, as folproperty is actually burned; for in one place, lows: That on the 12th day of February, and that a controlling one, the provision is, 1877, one Gilbert Wilson procured to be is"the property so burned being of the value sued a writ of attachment against the properof twenty dollars and upwards." The effect ty of James M. Sims, a non-resident of the of this provision is to make it essential that state of Indiana. That the sheriff of said property of the value of $20 should be burned; county made return of said writ, as follows: for, unless property of that value is actually "Come to hand February 12th, at 4 o'clock burned, there is no offense which can be P. M. Served the same by taking with mypunished. But there is another clause which self Jesse H. Dowell, a credible householder must not be overlooked, and that is the one of the county of Blackford, and did then and |