3. In a suit upon a promissory note where a special verdict is requested, an instruction on the general law of the case, relating to the issue upon a plea of non est factum, is properly refused. it is proper to refuse to allow him to open and 4. Where defendant pleads a general denial, close." every material allegation of the affidavit was | pecially where it is not shown that such testimony proved beyond a reasonable doubt except the is competent. allegation that the defendant did send the claim out of the state. On that point the evidence was that the defendant did not send the claim out of the state by any agency, but carried it out "upon his own person, for the purpose and with the intent charged in the affidavit." The trial court decided, as mat-s. ter of law, that the appellee did not violate section 2162 of the Revised Statutes of 1881, and the question was properly reserved by the state. Appeal from superior court, Allen county; Action by William S. Joyce against Jesse Stayner upon a promissory note. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. John M. Somers and Frank S. Roby, for appellant. Woodhull & Brown, for appellee. OLDS, J. This is an action on a promissory note. The appellant, the defendant below, answered, denying the execution of the note under oath. There was a trial, resulting in a verdict and judgment for appellee against the appellant for the amount of the note. Appellant filed a motion for new trial which was overruled, and exceptions and numerous errors are assigned. The only question presented to us is this: Does a defendant who himself takes a claim out of the state where the parties are all within its jurisdiction, with intent to deprive the debtor of the benefit of our exemption laws, send the claim outside of the state within the meaning of the statute? The controversy turns upon the question whether the defendant did send his claim into a foreign jurisdiction, the contention of the one side being that as the defendant himself carried it out he did not send it, while that of the other is that he did send it by himself. It is The first alleged error discussed is the adquite clear that the mode of getting a claim mission of the note sued on in evidence, beinto a foreign jurisdiction is utterly immate- fore the introduction of evidence explaining rial, for the plain purpose of the statute is to the alterations appearing upon its face. The prevent creditors from depriving debtors of word "day" in the note was crossed out and the benefit of our exemption laws. The ma- the word "year" written above it. Also the terial act is getting the claim out of the state words "after maturity" were crossed out, to defeat the debtor's exemption, and the making the note sued upon a note payable mode of doing so does not affect the character one year after date, bearing interest from of the act, so that the case before us is utter-date, instead of a note payable one day after ly unlike one in which the mode of trans- date, with interest after maturity. Upon porting a thing is the act prohibited. proof being made of the genuineness of the Our conclusion is that the appellee violated signature to the note, the court permitted its the law by taking the claim out of the state introduction in evidence, over the defendant's for the unlawful purpose which he did. To objection. To objection. This ruling of the court is corhold otherwise would defeat the manifest in-rect, and it is in harmony with the rule laid tent and purpose of the statute, and to hold down in Greenleaf and the decisions of this as we do, does no violence to the language court. 1 Greenl. Ev. § 564; Stoner v. Ellis, employed by its authors. The appellee did 6 Ind. 152; Brooks v. Allen, 62 Ind. 401; send the claim into Kentucky, within the Pate v. Bank, 63 Ind. 254. meaning of the law, for among other meanings assigned to the word "send" are these: "To cause to be conveyed or transmitted;" "to cause to be;" "to cause to do the act." 6 Cyclop. Dict. 335. The appellee unquestionably caused the claim to be conveyed to Kentucky and caused the act to be done, although he caused himself to do it. Appeal sustained, at the costs of the appellee. (120 Ind. 99) STAYNER V. JOYCE. The next alleged error discussed is the refusal of the court to give to the jury instruction No. 1, requested by appellant. There was a request for a special verdict, and a special verdict was returned. It was the duty of the court to instruct the jury as to the nature of the action and the issues, and as to the form of this verdict, but general instructions as to the law of the case were improper. The instruction asked for by the appellant and refused by the court was a general instruction as to the law of the case, relating to the issue joined by the plea of non est factum, and was therefore properly refused by the court. It was the duty of the jury to find the facts relating to the signing, execu1. A note sued upon, so altered as to be paya- tion, and alteration of the note, leaving it for ble one year after date, with interest from date, the court to determine the rights and liabiliinstead of payable one day after date, with inter-ities of the parties from such facts. Toler v. est after maturity, is admissible in evidence, on proof of the genuineness of the signature thereto, Keiher, 81 Ind. 388; Woollen v. Wire, 110 before evidence explaining such alterations, which Ind. 251, 11 N. E. Rep. 236; Railway Co. v. appear upon its face, is introduced. Frawley, 110 Ind. 18, 9 N. E. Rep. 594; Rail2. Long-hand notes, as transcribed by a stenographer, of the testimony of a witness at a for- Way Co. v. Bush, 101 Ind. 582. It is stated by mer trial of the same case, are not admissible, es- counsel that the court gave no instructions (Supreme Court of Indiana. Sept. 20, 1889.) NEGOTIABLE INSTRUMENTS-ACTIONS ON-EVIDENCE-INSTRUCTIONS. to the jury, but no question is presented relating to such neglect of duty by the court. Counsel have also assigned as error, and urge as a reason for new trial that the court erred in refusing to allow the appellant to open and close the argument of the case. This, we think, cannot be seriously contended for, in view of the fact that an issue was joined by a general denial of the complaint, putting in issue the execution of the note sued on, and which was the main issue submitted for trial. tions were taken. The case was thereafter put at issue by the filing of answers and replies, after which there was a jury trial, a special verdict returned, and a judgment thereon for the appellee. There are several errors assigned, but in view of the conclusion which we have reached as to the second and third errors it does not become necessary to notice the others. The second error brings before us the action of the court in overruling the demurrer to the first paragraph of the complaint, and the third error the action of the court in overruling the demurrer to the second paragraph of the complaint. The last error assigned and discussed is as to the introduction of evidence. Upon a former trial of this cause, Mr. Logan, a stenographer, took the evidence of William P. Stay- The first paragraph alleges that the appelner, and upon this trial of the cause Mr. Lo- lee is the legal owner of an undivided onegan was sworn as a witness, and testified to third of the real estate described therein; a having taken the evidence of Stayner in short- wrongful withholding of the possession from hand on the former trial, and that he had her by the appellants; and demands judgment transcribed it into long-hand, and thereupon for possession. The paragraph alleges a tenappellant then offered such long-hand report ancy in common between the appellee and the of Stayner's testimony in the former trial in appellants; and we are inclined to the opinevidence. It is not made to appear that such ion that it is sufficient to withstand a demurevidence was at all competent. It would be rer, but do not decide the question for the competent to prove by the stenographer that reason that the judgment, as appears from a witness had testified to statements on a for- the record, obtained by the appellee, rests enmer trial, contradicting statements testified tirely upon the second paragraph of the comto at a subsequent one, but it would be nec-plaint. essary to lay the foundation for such contra- The second paragraph is clearly bad, and dictory evidence by calling the attention of the witness to his former statements, and asking him as to his having made such statements. If the witness denied having made the statements, then it would be proper to prove that he did make the statements in-years last past; that on the 30th day of Sepquired about; but in this case no such foundation was laid for contradicting the witness, and, even if there had been, the long-hand notes of his testimony as transcribed by the stenographer would not be competent evidence to contradict or impeach the witness. We find no error in the record for which the judgment should be reversed. Judgment affirmed, with costs. (120 Ind. 504) JACKSON et al. v. MYERS.1 (Supreme Court of Indiana. Sept. 17, 1889.) STATUTE OF FRAUDS. A mere neglect or refusal to convey land in accordance with a parol contract is not such a fraud as to take the case out of the statute of frauds, but is only a breach of contract. Appeal from circuit court, Orange county; E. D. PEARSON, Judge. Action by Catherine Myers against Berrillah Jackson and another. Judgment was rendered for plaintiff, and defendants appeal. Newton Crooke, M. F. Dunn, and G. G. Dunn, for appellants. East & East, for appellee. BERKSHIRE, J. The appellee, who was the plaintiff below, filed her complaint in two paragraphs, to each of which separate demurrers were filed by the appellants, and, the same being overruled by the court, proper excep 1 Rehearing denied, 23 N. E. 86. the court below erred in overruling the demurrer thereto. The following is a copy of the paragraph, omitting the formal parts: "The plaintiff says that she is the wife of Peter Myers, and has been such for twenty tember, 1870, the said Peter Myers was indebted to one John Holland in the sum of $2,341.50, and that on said day he executed a mortgage, the plaintiff joining, to secure said indebtedness, upon the lands hereinafter described; that afterwards, to-wit, on the 3d day of May, 1872, being the owner thereof, Peter Myers executed a warranty deed to said John Holland, with this plaintiff joining, conveying to said John Holland the following described real estate in said county of Lawrence and state of Indiana, to-wit: The south-west quarter of section twenty-five, town 5 north, of range 1 east; also the northwest quarter of section 36, and the west half of the north-east quarter of section 36, town 5 north, of range 1 east; that the consideration for said conveyance was the said sum of $2,341.50, and the further sum of $500 due the said Holland from the said Peter Myers; that the lands were of great value, to-wit, the sum of $10,000; that it was also agreed that said deed should be in effect and operation a mortgage to secure said indebtedness, and that, as soon such indebtedness was paid off and satisfied, then the said John Holland was to redeed to this plaintiff the undivided onethird of said lands; and it was further agreed that the said Holland would, as soon as convenient thereafter, reduce said agreement to writing, and that said plaintiff and Peter Myers should retain possession of said lands until such reconveyance was so made. But agreed upon for the execution of the agreement was uncertain, a demand was necessary to its enforcement; but, as the conveyance was to be executed as soon as the indebtedness was paid, the appellee, if otherwise entitled to a conveyance, was not required to make a demand therefor. It is alleged in general terms that Holland fraudulently refused to execute a conveyance. Conceding that he was morally bound to execute a conveyance without a demand therefor, his failure so to do would not constitute a fraud. To so hold would be to abolish all distinction between fraud and breach of contract. plaintiff avers that said John Holland fraud-| third of the real estate in fee-simple, and, in ulently refused to reconvey, notwithstanding case she survives her husband, will be entithe fact that the said Peter Myers, on the 4th tled to an additional one-third of the whole day of September, 1874, fully paid off to said in fee-simple or for life, as the case may be. Holland all of such indebtedness, and took That the contract in question is within the up such mortgage by executing to said John statute (clause 4, § 4904, Rev. St. 1881) there Holland a quitclaim deed to said real estate, can be no question, and there are no facts or in which this plaintiff did not join. Plaintiff circumstances averred to take the case out of further avers that on the - - day of the statute. It is claimed that as Holland 1874, said John Holland died, leaving the de- agreed to reduce the agreement to writing at fendants as his heirs at law; that on the 4th some convenient time in the future, and day of April, 1876, in a suit for partition, in fraudulently refused to execute a deed after which this plaintiff was not a party, but in the payment of the indebtedness, the case is which the heirs of John Holland were par- not within the statute. But it will be obties, by the judgment of the Lawrence cir- served that there is no averment that Holcuit court, the defendant Berrillah Jackson land refused to reduce the agreement to writwas, as between said heirs, declared the own- ing, and, so far as we are informed by the er of said lands herein described, and she, on pleading, we can not say that he did not; said day, received a commissioner's deed for and, although it is averred that he refused to the same with full knowledge of the agree-execute a conveyance, it is not averred that ment of said John Holland and this plaintiff, he was ever asked to do so. As the time and without paying any valuable consideration for the same. Plaintiff further avers that all of said defendants are claiming an interest in said real estate adverse to this plaintiff, and have cast a cloud upon her title to the same. She further avers that said defendants have committed waste by cutting and removing valuable timber from the same, to the value of $2,000; that they have received the rents and profits of said real estate for eleven years last past, which were reasonably worth $500 per annum. She further avers that said lands are not susceptible of division without injury to the whole." The facts alleged, which are admitted by In Buchanan v. State, 106 Ind. 251, 6 N. the demurrer to be true, create the relation E. Rep. 614, it is held that an action inay be of mortgagor and mortgagee as between the maintained in some cases without a demand, parties. Whether Holland held the legal title and yet it will require a demand to constitute subject to redemption by the payment of the the presumption of fraud. But had there been indebtedness or was but a mere incumbrancer a demand made for the execution of the agreeis not material to the conclusion to which we ment, and a refusal, and afterwards a demand have arrived. At the time the conveyance for a deed, and a refusal, no presumption was executed and the agreement made be- of fraud would have arisen. At most this tween Holland and the appellee she held no would have shown an unwillingness to compresent interest in or title to the real estate, ply with the contract. The presumption of but was possessed merely of a contingent es- fraud arises from facts or circumstances tate, which, in case she survived her hus- which tend to show bad faith, and which opband, would ripen into a fee-simple title to erate prejudicially on the rights of others. one-third of the real estate, or into a life- This court has often held that it is not good estate, as the law might determine. The con- pleading to charge fraud in general terms, tract with Holland was not for the protec- but that the facts or circumstances constition of her contingent estate, but was for a tuting the fraud must be averred. The new estate, a definite and substantial inter- question now under consideration was not est in the land, and which was in no way involved in the case of Teague v. Fowler, 56 connected with or dependent upon her con- Ind. 569. The facts of that case were as foltingent estate. The conveyance of her con- lows: A. was a defaulting administrator tingent estate was the consideration for the and the owner of two 80-acre tracts of land. new estate which Holland agreed to convey B. was one of his sureties, and, with the unto her. If, after the conveyance to Holland, derstanding and agreement that B. would Peter Myers still held the legal title to the pay certain of the debts owing by A., and land, as he would have done if the instru- convey to his wife the 80-acre tract on which ment had been a mortgage in the ordinary they resided, A. and his wife conveyed to B. form, then the appellee held her contingent the two 80-acre tracts, and B. having refused estate intact, except as incumbered by the to convey to the wife of A. an action was said conveyance, and, under the arrangement, brought to compel a conveyance, and B. was immediately upon the execution of the quit- compelled to perform his contract, and execlaim deed by her husband, the appellee should cute the conveyance. Under the facts of have received a deed conveying to her one-that case B. held the title as a trustee with out an interest, but was the mere vehicle Baker, Defrees & Baker and Chamberlain whereby the title was to be conveyed from & Turner, for appellants. J. M. Vanfleet, A. to his wife. B. had no power to dispose for appellees. of or to manage the real estate, his power being limited to the mere conveyance of the BERKSHIRE, J. This was an action brought legal title to its rightful owner. It is well by the appellees, who were creditors of the settled that trusts are not within the statute. appellant Fanny Levy, to subject to sale cerBesides, section 2981, Rev. St. 1881, covered tain personal property in payment and satisand should have ruled that case, and any- faction of certain judgments which they held thing stated by the learned judge who wrote against the said appellant. Judgment was the opinion touching any question not before rendered in the court below for the appellees, the court must be regarded as obiter dicta. and the appellants appeal, and assign error. Butcher v. Stultz, 60 Ind. 170, and Caress In the complaint, as originally tiled, it was v. Foster, 62 Ind. 145, simply reiterate what alleged that the said appellant executed a has long been well settled as the law in this mortgage upon said property to her co-appeland other states,—that a deed absolute on its lant Joseph Shackman, on the 16th day of face, given to secure an indebtedness, is but September, 1884, to secure a pretended ina mortgage, and that the character of the debtedness in the sum of $1,850, and to her transaction may be shown by parol evidence. co-appellant Jacob Goldberg, on the same day, In the case of Chambers v. Butcher, 82 a mortgage on said property to secure a preInd. 510, the facts and circumstances consti- tended indebtedness in the sum of $750; and tuting the fraud were pleaded. The following that on the 16th day of March, 1885, without cases are in point, and decisive of the ques- foreclosure, the said personal property was tion under consideration: Green v. Groves, sold to the appellant Morris Herman, for the 109 Ind. 519, 10 N. E. Rep. 401; Caylor v. sum of $1,200, who was a purchaser with noRoe, 99 Ind. 1. Counsel for the appellee in- tice; and that the money paid was furnished sist in their able brief that in those cases the by the appellant Fanny, and was received agreement was that the wife should become and appropriated by the said appellant Shacka purchaser of the husband's lands after they man. The complaint contained other neceshad passed by judicial sale into the hands of sary and usual allegations found in a creditthe mortgagee; but with equal force it may or's bill. The appellants filed but one parbe said that the appellee was to become a agraph of answer, which was a general purchaser of an undivided one-third of her denial. At the May term of the court the husband's lands after Holland had acquired case was tried by the court and continued title thereto and the payment of her hus-under advisement. On the thirty-first day band's debt. See Box v. Stanford, 13 Smedes of the October term of the same year the ap& M. 93, 51 Amer. Dec. 142, and note; Wil- pellees moved the court for leave to file an son v. Ray, 13 Ind. 1. amendment to their complaint in the words Judgment reversed, with costs, and the following: "That said mortgagor was left in court below is directed to sustain the demur-possession of said goods with the right to rer to the second paragraph of the complaint. dispose of the same; and that she did sell and dispose of four thousand dollars worth of said goods, and did receive more than enough money to have paid and satisfied said mortgages before said mortgagees took possession of or sold said goods." The application for leave to make the amendment was supported by the following affidavit, omitting the formal parts: "Come now the plaintiffs and move the court for permission to make the following amendment [here the proposed amendment is copied, which is the same as set out above.] They ask to be allowed to make the amendment in order to make the pleadings conform to the proof already heard. They show that they are all non-residents, and were compelled to rely and did rely wholly on their attorney, J. M. Vanfleet, to look up the facts as well as the law in these matters, and that neither they nor he knew or had any means of discovering that enough goods had been sold by said mortgagor to pay said mortgages until the same was developed on the trial by the evidence; and they now aver that in their opinion the evidence already heard shows the truth of the allegations set forth in said proposed amendment, and that the same is necessary in order to allow justice to be done in this action." The affidavit (120 Ind. 37) LEVY et al. v. CHITTENDEN et al. 1. In an action to set aside a mortgage as fraudulent, an amendment to the complaint averring that the mortgagor has been allowed to remain in possession and to dispose of a great portion of the mortgaged property does not change the nature of the action. 2. A court cannot modify its finding after it has been entered of record. 3. In an action by judgment creditors to set aside a mortgage as fraudulent, and subject the mortgagor's property to plaintiffs' judgment, a personal judgment cannot be rendered against the mortgagee; nor can the property conveyed be ordered to be sold without relief from valuation or appraisement law, under Rev. St. Ind. 1881, § 743, where there is no finding of fraud. Appeal from circuit court, Elkhart county; JAMES D. OSBORNE, Judge. Action by Mark E. Chittenden and another, creditors of Fanny Levy, against Fanny Levy, Joseph Shackman, Jacob Goldberg, and Morrs, Herman, to set aside as fraudulent certain mortgages. Judgment was rendered for the plaintiffs, and the defendants appealed. is verified by the attorney for the appellees, | the judgment will not be reversed because the appellants not being present in court. thereof, although the court may have erred The appellants made no counter-showing. in allowing the amendment to be made. Hay The court sustained the application, and allowed the amendment to be made, and the complaint as amended was then filed. v. State, 58 Ind. 337; Leib v. Butterick, 68 Ind. 199; Judd v. Small, 107 Ind. 398, 8 N. E. Rep. 284; Durham v. Fechheimer, supra; Child v. Swain, supra; Martinsville v. Shirley, supra. But this court has always held that it was error to allow an amendment to the pleadings which changes the nature of the cause of action or defense after the trial has been concluded before the court or jury trying the same. Miles v. Vanhorn, 17 Ind. 245; Proctor v. Owens, 18 Ind. 21; Hoot v. Spade, 20 Ind. 326; Shropshire v. Kennedy, 84 Ind. 111; Busk. Pr. 86; Lewark v. Carter, 117 Ind. 206, 20 N. E. Rep. 119. to The appellants did not ask for a continuance, or for time to plead further because of the amendment, but reserved an exception, which is properly in the record. After the amendment was made the case was continued by the court on its own motion and held under advisement until the fifth day of the March term, 1886, on which day a general finding was announced for the appellees, a personal judgment rendered against the appellants Shackman and Fanny Levy, without relief from valuation and appraisement laws, It is not our opinion that the amendment and a decree for the sale of the mortgaged which was made to the complaint changed property. On the said fifth day of the March the nature of the cause of action or authorterm, and after said judgment and decree ized any different evidence than might have was rendered, the appellants moved the court been introduced under the original complaint. to modify the same, which motion was on The original complaint was in the nature of the forty-third day of said term of said court a creditor's bill, whereby the appellees sought overruled, and they reserved an exception, to set aside certain mortgages, and subject which appears properly in the record. On the mortgaged property to sale to pay certain the fortieth day of said term of said court judgments which they held against the mortthe appellees moved the court to modify its gagor. The amendment made only added to finding, and on the forty-third day of said the complaint the averments that the mortterm the court sustained said motion and gagors had been permitted to retain possesmade the following record entry in reference sion of the property, and allowed to dispose thereto: "And the court now finds that all of a great part of it. These were mere badges the material allegations of the amended com- of fraud and, as we think, were probably adplaint filed on the thirty-second judicial day missible under the original complaint; but of the October term, 1885, of said court are if we are wrong as to this last proposition, the true and proven; that the mortgages men- amendment, we think, was one within the tioned in the amended complaint had been sound discretion of the court. paid and satisfied before the sale of goods The court erred in the modification of its thereon. It is therefore ordered and ad- finding. After the finding was amended and judged by the court now here that the find- entered of record the power of the court over ing and judgment of the court heretofore men- it is at an end, except that it may at any time tioned herein be, and the same now is, mod- before the close of the term at which judgified and changed so as to read that the court ment is rendered grant a new trial. See finds for the plaintiffs solely on the allega- sections 550-552, Rev. St. 1881; Wray v. tions that the mortgages mentioned in the Hill, 85 Ind. 546. But the appellants were complaint had been paid and satisfied before not injured, as will appear further on in this sale of goods thereon." To the modification opinion, because of the error committed, and of the finding as ordered by the court the therefore the error will not work a reversal appellants properly reserved an exception. of the judgment. The appellees having been That justice may be done between the par-instrumental in bringing about the erroneties, our Code is very liberal in its provisions with reference to amendments, and the nisi prius courts are given a wide discretion in this regard. Before entering upon the trial of a cause the trial court may grant permission to the parties to amend their pleading to almost any extent. After the trial is entered upon, and even after the cause has been finally submitted to the court or jury trying the cause, it is not error to allow amendments to conform the pleadings to the evidence, where there is no change made in the nature of the cause of action or defense. Durham v. Fechheimer, 67 Ind. 35; Child v. Swain, 69 Ind. 230; Martinsville v. Shirley, 84 Ind. 546; Darrell v. Gravel Road Co., 90 Ind. 264; Burns v. Fox, 113 Ind. 205, 14 N. E. Rep. 541. Unless it appears affirmatively that the opposite party is prejudiced by the amendment, ous ruling of the court, they can in no way take advantage of it, nor can they ask the court to ignore the erroneous proceedings, but are bound by the record as made. The The finding of the court is not within the cause of action stated in the complaint. gravamen of the action is fraud; but this question is ignored by the court, and it is found that the indebtedness the mortgages were executed to secure has been paid. Where the facts found fail to show a cause of action, such as is stated in the complaint, the plaintiff cannot recover. Brown v. Will, 103 Ind. 71, 2 N. E. Rep. 283; Thomas v. Dale, 86 Ind. 435. A finding, which is not in the technical sense of the Code a special finding, will not be disregarded because it specifically states the facts found, and is not in general terms |