person of a female or child."1

2

In Bell v. State, the question of the meaning of the word "child" in the above statute was presented for decision for the first time to the Texas Court of Appeals. The court held that the word should be understood as meaning a boy under fourteen years of age, or a girl under twelve years of age. The reasoning by which the court arrived at this conclusion will appear from the following extract from the opinion of the court, delivered by White, P. J.: "One of these rules is that 'words which have their meaning specially defined shall be understood in that sense though it be contrary to their usual meaning, and, all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed.' Again: 'All words and phrases used in this Code are to be taken and understood in their usual acceptation in common language, except where this meaning is particularly defined by law.' 4 Resort, then must be had to the common meaning and acceptation of the word 'child.' Mr. Webster defines it to mean 'a young person of either sex; hence one who exhibits the character of a very young person;' and this is its common acceptation. It means a young person as contradistinguished from one of age sufficient to be supposed to have settled habits and fixed discretion. Mr. Webster defines the word 'boy' to mean a male child from birth to the age of puberty; and 'puberty' in the civil law is 'the age in boys of fourteen and in girls of twelve years.' 5 As the law now stands we believe that the age of fourteen in boys and twelve years in girls limits the age of childhood."

NEW TRIAL [UNSWORN JURY]-NEW TRIAL, WHEN NOT GRANTED BECAUSE JURY WAS NOT SWORN. In the case of Jenkins v. The City of Hudson, there was a motion for a new

1 Tex. Penal Code, Art. 496, Subdivision 5.

25 Tex. Law Review, 459.

3 Penal Code, Art. 10.

4 Code Crim. Proc. Art 59.

5 Bouvier, Law Dic.

6 Reported in the New York Daily Register for August 13, 1885.

trial before Westbrook, J., in a case in which the plaintiff had recovered $2,500 damages against the City of Hudson for negligently causing the death of her husband. In support of the motion it was shown that the cause had gone to trial and that the verdict had been rendered without the jury, or any member of the jury, being sworn. It was the practice in the particular court to swear the trial jurors in a body at the commencement of court for the trial of all the civil causes at that circuit. It seems that the clerk neglected this duty at the circuit at which this cause was tried, and after the selection of the jury, the trial proceeded without anything being done or said as to the swearing of the jury. The trial was begun April 13, 1885, the cause submitted to the jury on the 22d, and the verdict rendered on the 23d. The counsel for the defendant did not learn that the jury was not sworn until the said 23d day of April, about an hour previous to the verdict. The learned judge, in a carefully drawn opinion, denied the motion, on the ground that, by going to trial before a jury which had not been sworn, the defendant had waived the right to have the jury sworn in the cause. The only case which he cited on a closely similar point was Hardenburg v. Crary,7 where the cause went to trial with one of the jurors unsworn, which fact was unknown to the parties; and it was held not a good ground for new trial, because it was the duty of the objecting party to know whether or not all the jurors had been sworn. There is much authority to the effect that irregularities in selecting and drawing a jury, of which the parties ought to take notice, are deemed waived unless objection therefor is made at the proper time during or before the trial. There is a difference of opinion on the question whether the record must show affirmatively that the jury were sworn, growing out of the different practice of different courts. The weight of authority in criminal cases is. that the record must affirmatively show that fact, and that in the silence of the record it will not be presumed.8 But in some States

7 15 How. Pr. 307.

8 Nels. v. State, 2 Tex. 280; Cannon v. State, 5 Tex. App. 34; Kennon v. State, 7 Tex. App. 326; State v. Gates, 9 La. An. 94; State v. Douglass, 28 La. An. 425: State v. King, Id. 425; State v. Philips, 28 Id. 387; Botsford v. Yates, 25 Ark. 282; Lacy v. State, 58 Ala.

a

where the practice prevails, in civil cases not of swearing the jury in each case; but of swearing the entire panel at the commencement of the term, it has been held that a recital in the record of the trial of each case, that the jury were sworn in the case, is superfluous. By the Mississippi cases last cited, several earlier decisions in that State are overruled.10 It has been ruled that where the jurors are not so sworn for the term, the record ought to show that they were sworn in each case. But the ground upon which the learned judge proceeded in the case first cited above, if well taken.-and it seems to be well taken in its application to civil cases,―would render a recital in the record superfluous; for if the jurors were not sworn, the irregularity could not be made available as ground for a new trial, unless it should appear that objection were made to the defect before going to trial, and it would seem on principle to be quite immaterial whether the objecting party or his counsel knew that the jury were sworn or not; since the swearing of the jury is a public matter which takes place in open court, and it is their duty to be present and to know whether it takes place or not. It would therefore seem that the decision in the case on which we are commenting, is entirely sound, and that the Supreme Court of Vermont made too great a concession for a civil case, when it said, substantially, that before a new trial will be granted because of the fact that a jury was not sworn, it must be demonstrated to the satisfaction of the court that the party complaining and his attorneys were ignorant of the fact until after the verdict.12 Of course, what is here said has reference to civil cases only, but no doubt the same rule would apply in most jurisdictions in trials for misdemeanors; though a prisoner put on trial for a felony, and especially for a

385; Baird v. State, 38 Tex. 599; State v. Calvert, 32 La. An. 224; State v. Reid, 28 La. An. 387.

9 Pierce v. Tate, 27 Miss. 283; Furniss v. Meredith, 43 Miss. 302; Hewett v. Cobb, 40 Miss. 61; Clark v. Davis, 7 Tex. 556; Drake v. Brander, 8 Tex. 35; Waddell v. Magee, 53 Miss. 687; see also Goyne v. Howell, Minor (Ala.) 62: Perdue v. Burnett, Minor (Ala.) 138. 10 Wolfe v. Martin, 1 How. (Miss.) 30; Beall v. Campbell, 1 How. (Miss.) 24; Irwin v. Jones, 1 How. [Miss.) 497.

capital felony, would not perhaps be understood as impliedly waiving so important a right by his failure to object at the time. 18

13 On the question of objections after verdicts, for irregularities touching the constitution of the jury, see Thompson & Merriam on Juries, §§ 294–305.

TRIAL OF ADVERSE CLAIM OF TITLE IN SUIT TO FORECLOSE A MORTGAGE.

It is well settled that in a foreclosure proceeding the complainant cannot make a person who claims adversely to both mortgagor and mortgagee a party and litigate and settle his rights in that case.1 This is true no matter what the pleadings may be, and even where no objection is made on this ground in the court below or in the Supreme Court; the decree will be framed so as not to operate on such adverse title.2 No decree could be rendered against one having a paramount title. He could not be prejudiced by any decree in the cause even if made a party, and his rights not saved by the terms of the decree.3

Story states the rule generally, that no person need be made a party to a bill, who claims under a title paramount to that brought forward and to be enforced in the suit. Those claiming either legal or equitable estates adverse to that of the mortgagor, are not proper parties to a proceeding to foreclose the mortgage, as they have no interest in the subject of the action.5

So it is held that a defendant in a foreclosure suit, who is proceeded against in the action as one claiming an interest subsequent to the plaintiff's mortgage, cannot compel the plaintiff, by an answer setting up a paramount title, to litigate that title. Such an

1 Dial v. Reynolds, 96 U. S. 340; Barbour on Parties in Equity, 493; Summers v. Bromley, 28 Mich. 125; Wilkinson v. Green, 34 Mich. 221; Eagle Fire Co. v. Lent, 6 Paige, 637; Frost v. Koon, 30 N. Y. 428; Roberts v. Wood, 38 Wis. 60; Strobe v. Downer, 13 Wis. 10; Pelton v. Farmin, 18 Id. 222; Hekla Fire Ins. Co. v. Morrison, 56 Wis. 133; 2 Jones on Mortgages, §§ 1440, 1445; Comley v. Hendricks, 8 Blackf. (Ind.) 189; Pomeroy Rem., § 345.

2 Summers v. Bromley, 28 Mich. 125.

3 Comley v. Hendricks, 8 Blf. (Ind.) 189.

4 Story Equity Pleadings, § 230.

5 Croghan v. Minor, 53 Cal. 15; Fletcher v. Holmes, 32 Ind. 507.

answer does not meet the allegations of the bill against him.6 And such a defendant would not be barred from asserting a prior claim by a judgment taken against him by default. An answer of paramount title, directed to such allegation in a complaint, is equivalent to a disclaimer of such subsequent interest, and the action as to such defendant may be dismissed. And it is said to be error to determine a title hostile to the mortgagor, though litigated.9 But in an earlier case, in the same court, 10 where the mortgagee in his complaint, in opposition to the legal title in a third party, alleges a superior equitable title in the mortagor, and that it is covered by the mortgage, and demands that such third party (who is made defendant) convey or the title be adjudged to have been in the mortgagor, and such third party answers in denial, it was intimated that the question should have been adjudicated. And of course it is proper to establish the priority of various liens in a suit to forclose one of them."1

Neither an equitable action for the discharge of a mortgage nor an action under the statute for determining adverse liens, can be maintained against a mortgagee by one whose only estate or interest in the premises is founded on a title adverse, and, if valid, paramount to that of the mortgagor.12 When a question of title arises in such a case either on demurrer, or on pleadings and proofs in a court of chancery, the chancellor will look into it far enough to see what is its character, and, having ascertained that, should order the bill dismissed as to the party improperly before the court. The plaintiff should do this at the earliest opportunity, unless willing to take the responsibility of showing that the

6 Pelton v. Farmin, 18 Wis. 222.

7 Emigrant Sav. Bank v. Goldman, 75 N. Y. 127; Smith v. Roberts, 91 N. Y. 470; Straight v. Harris, 14 Wis. 553; McCormick v. Wilcox, 25 Ill. 247. Nor is a cross complaint by holder of adverse title against plaintiff a proper proceeding to quiet title as to mortgage, such cross complaint should be dismissed. Odell v. Wilson, 63 Cal. 159.

8 Roberts v. Wood, 38 Wis. 60. But compare Wicke v. Loke, 21 Wis. 416; Roche v. Knight, 21 Wis. 329, to effect that plaintiff may accept and try such issue, or have the action dismissed as to such defendant.

9 Supervisors, etc. v. Railroad Co., 24 Wis. 93. 10 Palmer v. Yager, 20 Wis. 91.

11 Woodworth v. Zimmerman, 92}|Ind. 349; Porter v. Reid, 81 Ind. 569; Supervisors, etc. v. Railroad Co., 24 Wis. 93; Dawson v. Banbury Bank, 15 Mich. 489. 12 Banning v. Bradford, 21 Minn. 308.

13 Corning v. Smith, 6 N. Y. 82.

title so asserted arose subsequent to the mortgage. If the superiority of the claim be established, the parties are left as they stood before the suit; if it is shown to have arisen subsequent to the mortgage, then the decree ought to bind the party claiming. This practice, however, allows the question to be litigated. This disputed question of fact may not appear clear till the end of the suit, and is then presumably decided contrary to the wishes of one of the litigants. If he is bound that is the end of the claim; if not the litigation has been fruitless, and should not have been permitted to embarrass the foreclosure suit.

It is evident, therefore, notwithstanding the current of authorities which declare that it is not proper to raise or try such an issue in a foreclosure suit, that a judgment by default, or upon pleadings and trial of such an issue, might be very embarrassing in a subsequent suit to enforce the adverse title. If the judgment was simply erroneous, it would be none the less embarrassing.14

The effect of a trial or adjudication of an adverse claim of title will depend very greatly upon the nature of the allegations as to the claim made in the bill. Of course, if it is stated in the bill that the defendant claims title to the premises paramount to the title of the mortgagor, a general demurrer by such defendant should be sustained and the action as to him dismissed, and advantage might be taken of it at any stage of the proceedings.15 Such an allegation, however, would never be made, unless coupled with a denial of such right, or an assertion intended in some way to show it to be subsequent and subject to the mortgage. The latter form of pleading might resist a demurrer by the claimant of a paramount title, and might be sufficient on a default by him to sustain a judgment barring his claim. For if the fact turn out to be that his claim, though asserted by him to be paramount, was subordinate to the mortgage, of course it ought to be barred. But if the complaint only alleges a claim of some interest by him, which claim is alleged to be subsequent and subject to the mortgage, he may

14 See Freeman on Judgm., § 303, where he says that "if the adverse claim of a party be set up and in fact litigated the decree is binding on him." But he cites no authority on the point.

15 Summers v. Bromley, 20 Mich. 125.

safely suffer default, without affecting his right to enforce a prior or paramount claim. This is the form in which the question has been presented in a large proportion of the cases. 16

Yet, notwitstanding the current of authority, both of courts and text writers, against the propriety of trying the question of title in a foreclosure suit, the cases where it has been attempted have been very numerous. This tends to show the impression among practitioners that it is possible to bar or establish title in this manner. And the courts of Indiana and Kansas go so far as in terms to sanction the practice, though perhaps in neither State has the question been so directly adjudged as to establish the rule. In the case of Bradley v. Parkhurst,17 the adverse claimant made a motion to compel the plaintiff to make the petition more specific, by showing the nature of the claim, when and where derived, and whether acquired prior or subsequent to the mortgage, which motion being overruled, he filed an answer denying title in the mortgagor and alleging full title in himself. After trial a decree of foreclosure was entered and an order barring him of all interest in the premises. This judgment was affirmed, Brewer, J., delivering the opinion, and Valentine and Horton, J. J., concurring in the result, but dissenting from the reasons assigned. The learned justice who delivered the opinion, while admitting the old practice to forbid such an issue, treated the matter as a question of the construction of the statute. "The code, section 83, authorizes the joinder of several causes of action, whether legal or equitable, or both, where they arise out of the same transaction or transactions connected with the same subject of action; but the causes of action so united must affect all the parties to the action, except actions to enforce mortgages or other liens." He concludes that the title to the land is so connected with the mortgage upon it, that they can be said to be connected with the same subject of action. The land is the

16 Corning v. Smith, 6 N. Y. 82; Smith v. Roberts, 91 N. Y. 470; Emigrant's Sav. Soc. v. Goldman, 75 N. Y 127; Strobe v. Downer, 13 Wis. 10; Straight v. Harris, 14 Wis. 553; Pelton v. Farmin, 18 Wis. 222; Odell v. Wilson, 63 Cal. 159; Freeman on Judgments, § 303; 25 Ill. 247.

17 20 Kansas, 462.

connecting link between the mortgage and the adverse title. This reasoning seems to be more artificial than sound. The New York Code, § 167, contains the same provision; yet the courts of that State have adhered finally to the rule laid down for the first time in Eagle Fire Co. v. Lent, as given at the beginning of this article. 18 The codes of Wisconsin, 19 Minnesota20 and Nebraska,21 contain the same provision, yet those States have adhered to the same rule; though I am not aware that the code has been invoked in any of those States to establish the contrary practice.

In Fitzpatrick v. Papa,22 it is said by Elliott, J., that "it is proper to make an issue involving the title to land in actions to foreclose mortgages." And in Masters v. Templeton, the same learned judge declared that "it has long been the law of this State that conflicting claims of title may be settled and questions of priority determined in foreclosure suits, whenever the proper issues are tendered." But in neither of those cases

was the title put in issue, and the remarks quoted were not necessary to the decision of the cases, except as to priority in the latter. This exception to the general rule of equity practice if established in Indiana has crept in by a flank movement, and not by reason of the liberality of the provisions of the code. In an early case the general rule was declared. The departure began in an action of partition in the court of Common Pleas, which, by the statute had no jurisdiction in any case where the title to real estate was in issue, but had express authority to try partition cases. The Supreme Court held25 that as every petition for partition must aver the titles of the parties interested, it would follow that in every such petition the title would appear to be in controversy, and the settlement of the title becomes necessary in order to be able to effect the partition, the jurisdiction in partition cases therefore draws with it the power to determine the title. In the

18 Corning v. Smith, 6 N. Y. 82; Frost v. Koon, 30 N. Y. 428; Emigrant Saving Soc. v. Goldman, 75 N. Y. 127; Smith v. Roberts, 91 N. Y. 470.

19 Wis. Stats. 1871, ch. 145, §§ 31, 32. 20 Code Minn., § 103.

21 Code Civ. Pro. Neb., §§ 87, 88.

22 89 Ind. 17.

23 92 Ind. 447.

24 Comly v. Hendricks, 8 Blackf. 189.

25 Wolcott v. Wigton, 7 Ind. 44.

next case,26 involving the point as to the jurisdiction of the Common Pleas court in a foreclosure suit where the title to real estate was brought in issue, the court could see no reason why the rule just stated as to partition cases should not apply, and say, "We are therefore inclined to hold that the jurisdiction given to the court to foreclose mortgages confers also the power in such cases to settle the title to real estate, whenever it shall be in issue." In a later case27 the jurisdiction was sustained and the additional reason given that "otherwise it would be frequently ousted." The propriety of trying the title of an adverse claimant does not appear to have been raised in any of these cases, nor of any other cases in that court. But the doctrine has received such recognition by able judges, speaking for the court without dissent, and is probably so generally acted on by the profession in the State, that it is likely to be asserted with authority when a case arises which calls for a decision.

The code of Indiana authorizes the plaintiff to unite several causes of action in the same complaint when they are included in certain specified classes. One class includes actions to recover possession of real property, to make partition of land, and to determine and quiet the title to the same. Another class includes claims to foreclose mortgages and enforce liens. 28 The uniting of causes of action belonging to one of these classes with those belonging to another, is ground for demurrer for misjoinder. The effect of sustaining the demurrer is that the court will require the plaintiff to docket each cause separately,29 but a refusal to sustain or overrule the demurrer would not be ground for reversing the judgment;30 and, if no objection is taken by demurrer, it is deemed to be waived. 31 The causes of action which may legally be united, must affect all the parties to the action, and not require different places of trial, and must be separately stated and numbered. 32 The court may order separate

26 Toner v. Mitchell, 13 Ind. 530.

27 Ewing v. Patterson, 35 Ind. 326.

28 § 278, Code 1881.

29 § 340, Code 1881.

30 § 341, R. S. 1881.

trials of causes so united, for the furtherance of justice.33

The bearing of the above cited provisions of the Indiana code have never been considered in any case that has arisen, in which the propriety of trying titles in this way has been mooted. But in Masters v. Templeton, Elliott, J., in discussing the general subject, says: "Our code provides that any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved. This is a very comprehensive provision, and was meant to confer authority to settle in one suit all conflicting claims to property involved in the litigation." It will be observed that it is a "person having an interest in the controversy adverse to the

plaintiff," who may be made a defendant, not a person having an interest in the property involved in the controversy. The controversy in a foreclosure suit is not concerning claims of title paramount to the mortgagor, or adverse to him. It is a question regarding the validity of the mortgage and its amount, and concerning the priority of the various liens upon the property. The object of the proceeding is to bar the equity of redemption of the person giving the mortgage, and to convey to the purchaser under the decree the title held by him at that time. It is not the object to give a perfect title, or to give him any better title than the mortgagor

had, nor even to determine whether he had any title at all. The mortgagor himself is estopped to deny his title. If it is proper to try title in a foreclosure suit, conversely it would be proper to try a foreclosure suit in an action to recover the land. It would be immaterial whether it was the holder of the adverse title or the mortgagee who went forward. A cross complaint is merely a complaint by one who is named a defendant in the action. Yet no good lawyer would think of making the mortgagee defendant to an action to recover the land. Good practice would seem to require the maintenance of the old doctrine of the equity courts. Richmond, Ind.

33 § 280, Ind. R. S. 1881.

34 Supra.

J. W. NEWMAN.

31 § 343, R. S. 1881.

82 § 278, R. S. 1881.