Baddeley v. Patterson. by the defendant. The remedy for the breach of a contract. to make a mortgage on household furniture is not replevin. A specific performance could not be lawfully decreed of such a contract, and the foreclosure of a mortgage of such property, when the mortgage had no existence, is without precedent. The complaint, however, contained a good cause of action for the money paid, and therefore there was no error in overruling the demurrer to the entire complaint. Bennett v. Preston, 17 Ind. 291; Owens v. Lewis, 46 Ind. 488; Bayless v. Glenn, 72 Ind. 5. There were several causes of action improperly united in the complaint, but error in the ruling upon a demurrer for that cause will not authorize the reversal of the judgment. Practice Act, section 52. The proper remedy would have been a motion to separate the causes of action or to strike out all the causes of action except the claim for the money paid. Bayless v. Glenn, supra; Lane v. The State, 27 Ind. 108. As to the motion in arrest of judgment, there was no error in overruling that motion, because the plaintiff was entitled to judgment upon the claim for money paid. If the defendant was not satisfied with the form of the judgment, his remedy was a motion to correct or modify it. Higgins v. Kendall, 73 Ind. 522; Buskirk's Practice, 268. No such motion was made. There is no error in the record, of which the defendant can now take advantage. The judgment of the court below must be affirmed. PER CURIAM.-It is therefore ordered by the court, upon the foregoing opinion, that the judgment of the court below be, and it is hereby, in all things affirmed, at the costs of the appellant. Borroughs v. Adams et al. No. 7464. BORROUGHS v. ADAMS ET AL. DESCENT.-Illegitimate Child.-Heir.-Statute Construed.-Under the provisions of the act of February 10th, 1853, 1 R. S. 1876, p. 410, the brothers and sisters of an intestate take his estate, as heirs, to the exclusion of his illegitimate child. From the Randolph Circuit Court. M. Hunt, E. L. Watson and W. E. Monks, for appellant. L. J. Monks and W. A. Thompson, for appellees. FRANKLIN, C.-This was a proceeding by an illegitimate child for the partition of the lands of its putative father. The suit was commenced in the name of Franklin L. Borroughs (the child), by his next friend, Fairfax Hunt, against Elijah Adams and Cornelius Metsker, who were the purchasers of the land from the brothers and sisters of the putative father, after his death. The complaint alleges that the father died intestate, the owner in fee and possessed of the undivided interest in the lands, as described in the complaint; that he died single, leaving no children but appellant, but left brothers and sisters residing in this State; that during his lifetime he acknowledged appellant to be his child. A demurrer was filed to the complaint, and the cause comes here upon the ruling of the court in sustaining the demurrer. This complaint is based upon the act of February 10th, 1853, 1 R. S. 1876, p. 410, which reads as follows: "That the real and personal estate of any man dying intestate without heirs resident in any of the United States at the time of his death or legitimate children capable of inheriting without the United States shall descend to and be vested in his illegitimate child or children who are residents of this State or any of the United States, and such illegitimate child or children shall be deemed and taken to be the heir or heirs of such Borroughs v. Adams et al. intestate in the same manner and entitled to take by descent or distribution to the same effect and extent as if such child or children had been legitimate: Provided, that the intestate shall have acknowledged such child or children as his own during his lifetime; and provided further, that the testimony of the mother of such child or children shall in no case be sufficient to establish the fact of such acknowledgment." It is insisted by appellant that the word "heirs" in the foregoing statute means child or children, and does not include brothers and sisters. The general meaning of the word "heir" is one upon whom the law casts the estate upon the death of his ancestor. Bouv. Law Dict. It may be limited by the context to mean a child of the body of the ancestor only. Jones v. Miller, 13 Ind. 337. The words "my heirs" mean next of kin. Rusing v. Rusing, 25 Ind. 63. All who may inherit under our laws may be heirs. And the foregoing statute provides a contingency in which an illegitimate child may inherit the estate of its putative father, and thereby become his heir. But the question arises, Do the facts of the case at bar bring about the contingency in which appellant can be the heir? This statute provides that an illegitimate child can only inherit where there is no legitimate child or children in the United States or elsewhere, and no heirs in the United States. Were it not for this act, who would inherit? It was intended by the Legislature, should the remote contingency occur, to give the estate to the illegitimate child in preference to its escheating to the State. But where there were legitimate heirs, lineal or collateral, within the United States, the estate would not escheat to the State. At the time of the passage of this act, brothers and sisters, under the law, could inherit and were collateral heirs. And it certainly could not have been the intention of the Legislature, nor will the language of the act bear the construction, that the brothers and sisters were to be cut off and the estate given to an illegitimate child. VOL. 78.-11 78 162 133 145 Hackleman v. The Board of Commissioners of Henry County. We think the court did not err in sustaining the demurrer to the complaint. PER CURIAM.-It is therefore ordered upon the foregoing opinion, that the judgment below be, and it is hereby, in all things affirmed, at appellant's costs. No. 9552. HACKLEMAN v. THE BOARD OF COMMISSIONERS OF HENRY CONTRACT.-Construction.- Unimportant Parts Suppressed.-County Bounties to Soldiers for Particular Regiment. - Enlistment Under Offer and Service in Another Regiment.—It is a rule of construction that a contract should be upheld rather than defeated. Force and validity will be given to all its parts and terms, if possible, but comparatively unimportant parts will be disregarded, if in that way only the contract can be sustained, especially where the party seeking relief has performed the service required of him, and in the manner required, except in unimportant particulars, which, without his fault, were put beyond his control. A county, authorized thereto by law, offered bounties for the enlistment and service of soldiers in the 69th regiment Indiana volunteers. A. accepted the offer and enlisted for that regiment, but afterwards, without his consent, was mustered into and served in the 84th regiment. Held, that he was entitled to the bounty. From the Henry Circuit Court. M. E. Forkner and J. M. Morris, for appellant. WOODS, J.-The appellant presented to the Board of Commissioners of Henry County his petition for an allowance, alleging, in substance, the following facts: That on the 22d day of July, A. D. 1862, the Board of Commissioners of said county made, and caused to be spread of record, the following order, to wit: "Whereas, according to an act approved May Hackleman v. The Board of Commissioners of Henry County. 11th, 1861, the board of commissioners of the several counties of the State are authorized to appropriate," etc., "and to make such appropriations for the purchase of arms and equipments and for the raising and maintaining of military companies within their respective jurisdictions, either for home defence or for the service of this State or of the United States, and to make such regulations as they may think right and proper in the distribution of said appropriation; and whereas the exigencies of the times require that two companies of volunteers be immediately raised in Henry county for the service of the United States in the 69th regiment of Indiana volunteers: Therefore it is ordered that there be appropriated from the county treasury to each private who may volunteer from Henry county in either of said companies the sum of eight dollars and thirty-three cents per month, for and during the time he remains in the service of the United States as a private or non-commissioned officer in said 69th regiment, for any time not exceeding three years. It is also ordered that the sum of eight dollars and thirty-three cents per month be appropriated on condition as above to any number not exceeding fifteen who may volunteer in the artillery company to be formed immediately in eastern Indiana; that said several appropriations shall be paid at the end of each month from the time said regiment or company is mustered into service, on the warrant of the auditor," etc. "In order that the foregoing order may be carried out, it is required of each of the captains of said companies or the artillery company to certify to the county auditor the names of the privates and non-commissioned officers of the respective companies, and the date when the regiment or artillery company was mustered," etc. "It is further required of the captains of said companies to certify to the auditor any death, discharge, or promotion to a commissioned office." Signed by the members of the board. In pursuance of this order, and expecting to receive the benefit of it, the appellant, who was a resident of said county, |