Armstrong et al. v. Cavitt et al. for the sale of said real estate was made by the court of common pleas, at its October term, 1866. It further shows, that afterwards, on the 24th day of November, 1866, the said Samantha Armstrong consented that her interest in said real estate might be sold at the same time that the administrator made his sale, under said order of the court. But the paragraph does not show, nor is it now claimed by the appellees' counsel, that the appellants were or could have been parties to, or in any manner bound by, such consent of said Samantha for the sale of her interest only in said real estate. It is further shown in said fourth paragraph of answer, that afterwards, at the May term, 1867, of said court of common pleas, the said administrator filed his petition, praying the court to declare the said Samantha's interest in the ceeds of said real estate, with her written agreement to accept a portion of the money in lieu of her life-estate in the onethird thereof; and that the court had found the value of her life-estate to be a certain sum of money, which was fully paid to her by the administrator, under the order of the court. It is not claimed, however, by the appellees' counsel, that the appellants were made parties to this petition of the administrator, or that they were or could have been parties to, or in any manner bound by, the said agreement of said Samantha Armstrong. The paragraph of answer does not show that the appellants were notified in any manner of the pendency of this latter petition of the administrator, or that they were required to answer or did answer said petition, either in person or by guardian ad litem. Upon the whole case, as presented by the demurrer to the fourth paragraph of the answer, it might well be doubted, as it seems to us, whether any of the proceedings had by the administrator, or by said Samantha Armstrong, or by said court of common pleas, as stated in said paragraph, did in terms affect the one-third of the real estate which descended to said Samantha, in fee simple, and which, upon her death in 1875, and not before, descended in fee simple absolute to Armstrong et al. v. Cavitt et al. the appellants, beyond, perhaps, an estate for her life therein. Manifestly, however, those proceedings were so had upon the theory, the one-third of said real estate, which descended to said Samantha, so descended to her for her life only and not in fee, but that the fee simple estate therein, upon the death of said John N. Armstrong, descended at once to the appellants, as his children and heirs at law, subject to such estate for life. This theory is in direct contravention of the plain letter of the statute of descents, and can not be upheld. But in view of this theory we are clearly of the opinion, for the reasons heretofore given, that in so far as the administrator's petition sought the sale, if it did seek the sale, of the one-third of the real estate which first descended in fee to said Samantha Armstrong, and which, at her death in 1875, and not before, descended in fee simple to the appellants, the court of common pleas of Rush county, never had nor could acquire jurisdiction either of the subject-matter of the petition, or of the persons of the appellants as the defendants therein. It follows, that the appellants were not estopped by any of the proceedings or orders of said court of common pleas, upon said petition, from asserting their title to the one-third of the real estate which descended to them in fee simple, upon the death of said Samantha, in 1875, and not before her death. The court clearly erred, as it seems to us, in overruling the appellants' demurrer to the fourth paragraph of appellees' answer. The appellees have assigned, as a cross error, the decision of the circuit court in sustaining a demurrer for the want of sufficient facts, to the fifth paragraph of their answer. In this paragraph the appellees alleged, in substance, that, on the 23d day of February, 1867, the real estate described in the complaint was sold to one Samuel E. McMillan, by order of the court of common pleas of Rush county, on an application filed by the administrator of John N. Armstrong, who was the father of the appellants, for the payment of the debts Armstrong et al. v. Cavitt et al. of said decedent; that the appellants were served with notice of said proceedings according to law, and appeared and answered said petition, and that said sale was confirmed by said court on the day of February, 1867; that said McMillan conveyed said land to Abram Hackleman, who conveyed the same to Adam Pleisinger, who reconveyed the same to said Hackleman, who conveyed the same to the appellees. Wherefore the appellees said that the cause of action mentioned in the appellants' complaint did not accrue within five years before the commencement of this action, nor within two years after the appellants became of full age; and they demanded judgment for costs and all proper relief. It will be observed that this paragraph of answer in no manner controverts any of the allegations of the appellants' complaint. In such a case, section 74 of the civil code of 1852 provides, that "Every material allegation of the complaint, not specifically controverted by the answer, * * * shall, for the purpose of the action, be taken as true." 2 R. S. 1876, p. 71. In determining the sufficiency of the fifth paragraph of the answer, in this case, it must be construed in connection with the allegations of the complaint, which, for such purpose, except as to dates, must "be taken as true." Nicholson v. Caress, 59 Ind. 39; Caress v. Foster, 62 Ind. 145; Albert v. The State, ex rel. 65 Ind. 413; Earle v. Peterson, 67 Ind. 503; Cole v. Wright, 70 Ind. 179; Matter v. Campbell, 71 Ind. 512. Thus construing the fifth paragraph of answer, we have no difficulty in reaching the conclusion that it did not state facts sufficient to constitute a defence to the appellants' cause of action. For, in their complaint, the appellants alleged certain facts which showed beyond doubt that one-third of the real estate had descended in fee, upon the death of John N. Armstrong, to his second wife, Samantha Armstrong, free from all demands of his creditors, and that, therefore, his administrator had no legal right to ask, and the court of common pleas had no jurisdiction to order, the sale of said one Wright et al. v. Crabbs et al. third of said real estate for the payment of said decedent's debts. Further facts were alleged in the complaint which clearly showed that the appellants never had any title whatever to the said one-third of said real estate until it descended to them in fee simple, under the law, upon the death of said Samantha Armstrong in 1875. This was the case made by the complaint, which must "be taken as true," except as to the dates named therein, in determining the sufficiency of the fifth paragraph of answer, as a defence to such case. We are clearly of the opinion that this fifth paragraph did not state facts sufficient to constitute any defence to the appellants' cause of action, as stated in their complaint. It follows, therefore, that the court committed no error in sustaining the demurrer to the fifth paragraph of answer. The limitation pleaded by the appellees in the fifth paragraph of their answer was wholly inapplicable to the cause of action stated in the complaint. The appellants sued to obtain the partition of certain real estate, of which they claimed to be the owners in fee simple of the undivided one-third part, by descent cast upon them on the death of Samantha Armstrong. It is certain that the limitation of five years, pleaded by the appellees, was no sufficient bar to the appellants' cause of action. Jenkins v. Dalton, 27 Ind. 78; Nicholson v. Caress, 59 Ind. 39; Schori v. Stephens, 62 Ind. 441. The judgment is reversed, at the appellees' costs, and the cause is remanded, with instructions to sustain the demurrer to the fourth paragraph of answer, and for further proceedings not inconsistent with this opinion. No. 8294. WRIGHT ET AL. v. CRABBS ET AL. PROMISSORY NOTE.-Illegal Consideration.—Grain-Broker.—Margins.—In a suit upon a promissory note, it was found specially that the note was Wright et al. v. Crabbs et al. given to a grain-broker in consideration of commissions and advances upon wheat purchased by him for the maker, that the maker of the note had entered into a combination with others to purchase through the plaintiff and other brokers, for delivery during a certain month, more wheat than there was in the market, thereby forcing the price to a high rate, with a view to make profit on settling with sellers failing to deliver. Whether the plaintiff was a party to this combination, or had knowledge of it, was not found. A conclusion of law that the note was valid, and the plaintiff entitled to recover upon it, was held to be correct. From the Shelby Circuit Court. T. B. Adams and L. T. Michener, for appellants. E. P. Ferris, W. W. Spencer and J. S. Ferris, for appellees. WORDEN, J.-Action by the appellees against the appellants upon a promissory note executed by said George M. Wright and said Cyrus Wright, in his lifetime, payable to the plaintiffs, the appellees herein, for the sum of eleven hundred and four dollars and a fraction, with attorney's fees, if suit be brought upon it, dated July 2d, 1873, and payable two years after date with ten per cent. per annum interest. The defendants answered in three paragraphs; the first alleged that the note was given without any consideration, and the second and third alleged matters intended to show that it was given upon an illegal consideration. Issue, submission to the court for trial, and, at the request of the parties, a special finding of the facts, with conclusions of law thereon, was made. The following is the special finding, with the conclusions of law thereon: "Prior to June, 1873, the deceased, Cyrus Wright, with others, employed the plaintiffs, who were grain-brokers in Toledo, Ohio, to make or procure contracts for them, for the purchase by them of grain known as 'Michigan Amber wheat;' that the intention of the deceased, and the others who were acting with him, was to purchase and hold contracts, or 'options,' for the delivery of wheat to them in the month of June, of that year, to an amount largely in excess of the quantity of such wheat which would be in the market |