The note signed by Meyers bears date of December 26, 1910, due in two years, principal $475, with interest at 6 per cent. payable to Martin J. Kuntz and Elizabeth M. Kuntz, signed only by Benjamin F. Meyers. The mortgage designates Meyers and Meyers, husband and wife, as mortgagors, and Kuntz and Kuntz as mortgagees, and describes said lot No. 15 as the real estate mortgaged to secure the note above described. It shows on its face that it was signed and acknowl mer the Michigan farm and Mrs. Meyers', tion had about expired. Mrs. Meyers as she Bartholomew county farm, and also procured returned from Marion stopped at the Kuntz Hearn to convey to Kuntz and Kuntz the 90- home, but under the circumstances she refus acre Bartholomew county farm. To procure ed to sign the note and mortgage. Kuntz the last-named conveyance to be made Kuntz testified that she gave as an additional reaand Kuntz executed to Hearn a mortgage on son that there was some misunderstanding the 90-acre farm, to secure the payment of between her and her husband respecting the $475 due the latter from Meyers. There property rights. is conflict in the evidence as to the circumstances under which Kuntz and Kuntz assumed and agreed to pay the $475 to Hearn. On this subject there was evidence to the following effect: Meyers and Meyers had not seen the Marion residence property prior to the trade. There was evidence that Kuntz represented it to them as an 8-room residence property in good condition, rented at $10 per month, worth $3,000, with no incumbrance, except a $750 mortgage, with 30 months to run; that, since Meyers and Mey-edged by Benjamin F. Meyers alone, under ers had not inspected this property, Mrs. Meyers should have the privilege of doing so, and that, if she found it as represented, she and her husband were to execute to Kuntz and Kuntz a note for $475, secured by mortgage on lot 15, described in the crosscomplaint; that, if the Marion county property was not found to be as represented, no note or mortgage should be given. Kuntz testified that he had never seen the Marion residence property, and that he had no knowledge of its condition or title, except as represented to him by the person from whom he purchased it 3 months before he traded it to Meyers and Meyers. At The evidence is without contradiction that Mrs. Meyers refused to sign the note and mortgage until she had inspected the Marion property. Early in January Kuntz called on Meyers and Meyers at their homes in Bartholomew county for the purpose of procur ing the execution of these instruments. Mrs. Meyers, however, had not made her trip to Marion. The note and mortgage therefore were not executed. She went to Marion in the latter part of January. While she was absent, Kuntz again called on Meyers. this time Meyers signed the note and signed and acknowledged the mortgage. The latter bears date of January 28, 1911. The note, however, is dated December 26, 1910; it having been antedated. There was evidence that Kuntz, to procure Meyers to sign the instruments, made further representations respecting the Marion property. Meyers informed Kuntz that Mrs. Meyers intended to stop at the Kuntz home in Beech Grove as she was returning from Marion, and that she at that time would sign the note and mortgage if the Marion property was found to be as represented. Apparently for such purpose the instruments were delivered into the possession of Kuntz. There was uncontradicted evidence that Mrs. Meyers found the Marion property to be in a dilapidated condition; that it had been tenantless for three years; that it had been sold on mortgage foreclosure; and that the year for redemp112 N.E.-3 date of January 28, 1911. It was duly recorded May 6, 1911. Kuntz and Kuntz indorsed the note to appellee August 10, 1911. By a writing on the mortgage, acknowledged September 9, 1911, and duly recorded October 25, 1911, they transferred the mortgage to appellant. There was evidence that appellant paid full value for the note and mortgage. In the transaction by which the note and mortgage were transferred to appellant, his attention was directed to the fact that Mrs. Meyers had not signed them. He was informed that the title to lot 15 was held by Meyers and Meyers as husband and wife, and that Mrs. Meyers had refused to sign the note and mortgage, because the Marion property was not as represented. Kuntz said to him, however, that the note represented a part of the unpaid purchase price of the lot. [3] By a deed executed August 25, 1911, and recorded August 26, 1911, Meyers and Meyers conveyed lot 15 to appellee Clint Parker. Prior to accepting this conveyance Parker caused the title to the lot to be abstracted. The abstractor overlooked the mortgage mentioned above, and as a consequence the abstract did not show its existence. Parker had no actual knowledge that there was such a mortgage, or that there was any part of the purchase price of the lot unpaid. He had only such constructive notice as the records of the recorder's office afforded him. From the fact of such records he stood charged with constructive notice that there was such a mortgage; that it had been executed by Benjamin F. Meyers; that it had not been executed by Mrs. Meyers; and that the real estate described in the mortgage was held and owned by the former and his wife as tenants by the entireties. [4-6] Proceeding to a consideration of the sufficiency of this evidence, it appears that, in order that the respective conveyances might be consummated, it was necessary that Hearn be paid the amount due him from Meyers. To that end Kuntz assumed such indebtedness and secured it by a mortgage on, gardless of whether she joins in its executhe 90-acre farm, and subsequently paid it. tion. Section 3033, Burns 1914; Denton v. Under such circumstances, if Meyers and Arnold, 151 Ind. 188, 193, 51 N. E. 240; Fowlwife agreed to pay Kuntz and wife an equal er v. Maus, 141 Ind. 47, 40 N. E. 56; Bowman amount, the debt thereby created represents | v. Mitchell, 97 Ind. 155, 157; Baker v. Mcan unpaid balance of the purchase price of Cune, 82 Ind. 339; Seibert v. Todd, 31 S. C. the tracts of real estate conveyed to Meyers and wife, including lot 15. The court, however, was warranted in finding that the promise of Meyers and wife to pay such sum, and to secure it by note and mortgage, was conditional, rather than absolute. There was evidence that said sum was to be secured and paid only in case the Marion property on inspection proved to be as represented. The testimony of Mrs. Meyers was emphatic to that effect. She is corroborated by Meyers, and also by the circumstances, that the note and mortgage were not required to be executed at the time of the execution of the deeds. As we have said, the uncontradicted evidence established that the condition upon which the note and mortgage were to be executed failed, in that the Marion property proved to be materially different in value and title from as represented, and in fact proved to be practically worthless. It follows that the court was warranted in finding the nonexistence of a promise to pay on the part of Meyers and wife. True, Meyers signed the instruments, but the evidence is sufficient to support a finding that they were not delivered. There was evidence that Meyers placed such instruments in the possession of Kuntz only for the purpose of procuring Mrs. Meyers' signature thereto in case the Marion property was found to be as represented. Meyers testified that he signed the instruments and surrendered them to Kuntz "on condition if everything was satisfactory when we looked at that Marion property." To constitute a valid delivery of an instrument, an act must combine with an intent to that end. There was evidence that the element of intent did not exist. See Stokes v. Anderson, 118 Ind. 533, 21 N. E. 331, 4 L. R. A. 313, and note; Goodwin v. Owen, 55 Ind. 243. In such view of the case Kuntz and Kuntz could have based no right on the instruments as against either Meyers or his wife. [7, 8] But, since Kuntz and Kuntz paid Meyers' debt to Hearn, if we should assume as argued that Meyers, in consideration thereof, executed the note as a binding obligation, and likewise the mortgage for the purpose of securing its payment, a question | is presented respecting the rights of the parties while Kuntz and Kuntz still held the instruments, and Meyers and wife yet held the title to lot 15. Where a husband purchases real estate, taking the title in his own name, and executes a mortgage on such real estate to secure the payment of the purchase money or a part thereof, such mortgage is a valid lien upon the entire title, and the wife has no interest, inchoate or otherwise, in such real estate as against the mortgage, and re 206, 9 S. E. 822, 4 L. R. A. 606, and note. The lands here, however, were purchased by Meyers and his wife, and title taken by entireties. The debt paid by Kuntz to Hearn was a debt of Meyers alone. An obligation against Mrs. Meyers could not grow out of the payment of such debt in the absence of a promise on her part to that end, and there was no such promise. If Meyers executed the note here, in consideration of the payment by Kuntz to Hearn, such note was not only his individual obligation, but also it represented his individual debt. The mortgage was executed to secure the payment of the note. It is a general rule that a mortgage executed by a husband alone on lands held by entireties to secure the payment of his individual debt may not be established as a lien against such land or enforced against either him or his wife. Thornburg v. Wiggins, 135 Ind. 178, 34 N. E. 999, 22 L R. A. 42, 41 Am. St. Rep. 422; Chandler v. Cheney, 37 Ind. 391. The rule is the same where the wife joins in the execution of the mortgage. Dodge v. Kinzy, 101 Ind. 102; Abicht v. Searls, 154 Ind. 594, 57 N. E. 246; Davis v. Neighbors, 34 Ind. App. 441, 73 N. E. 151. Mrs. Meyers was not a mere volunteer in the transaction involved here. In addition to releasing her inchoate interest in her husband's lands, she parted with title to her own farm in consideration of the couveyance to her and her husband by entireties. Neither can it be said that she was a | purchaser with notice of the existence of the note and mortgage. These instruments were not in existence at the time of such conveyances. As we have said, there was substantial evidence that their future execution depended on a condition which failed. She did nothing at any time to validate the instruments. Under such circumstances we are not required to pass on the suggested question of whether a mortgage executed by the husband alone on lands purchased by the husband to secure the payment of his debt representing the unpaid purchase price of such land may be enforced against such lands, where, at the request of the husband, they are conveyed by the vendor to himself and wife as tenants by the entireties, the wife being a mere volunteer, with notice of the facts. In such a case, however, the execution of the deed and mortgage being parts of the same transaction, the equities of the situation would seem to require that such a mortgage be enforced although the wife was not a party to it, and therefore did not subscribe to its specific terms. Under the circumstances of the case at bar, however, it is our judgment that the mortgage here was without effect as against edge of the facts, the vendor may enforce his lien against the lands. Mrs. Meyers, and hence that it was nonenforceable by Kuntz and Kuntz as against lot 15 while the title thereto was held by her In the case at bar, however, the facts and her husband. She took title to such lot which destroy the apparent lien of the mortwith the distinct understanding that such a gage against lot 15 likewise stand as a barmortgage should not be executed by her or rier to the decreeing of a vendor's lien her husband unless the Marion property prov-against such lot, based on the note and its ed to be as represented. It was shown to be nonpayment. Mrs. Meyers was a purchaser otherwise by uncontradicted evidence. for value. As we have indicated, there was [9] Turning our attention to the vendor's substantial evidence that she with her huslien phase of the case, the mortgage here was, band took title by entireties to lot 15, with as we have held, without legal validity. The the distinct agreement with Kuntz and wife fact that it was taken indicated a purpose that no indebtedness should arise against einot to waive whatever lien, if any, grew out ther of them, and that no note should be of the transaction. The taking of the mort- executed by reason of the payment of the gage therefore is not inconsistent with the Hearn claim, except on a condition which existence of a vendor's lien. Scott v. Edgar, failed. Neither she, therefore, nor her hus159 Ind. 38, 63 N. E. 452; Gilbert v. Bakes, band, owed any debt. It follows that the lien 106 Ind. 558, 7 N. E. 257; Bakes v. Gilbert, could not arise or be created on said lot, 93 Ind. 70; Himes v. Langley, 85 Ind. 77; based on the voluntary act of the husband in Fouch v. Wilson, 60 Ind. 64, 28 Am. Rep. 651. executing the note, if he did execute it. We [10-14] Where a husband purchases land, conclude, therefore, that prior to their conveyand executes his own'note for the purchase ance thereof Mrs. Meyers and her husband price, which note remains unpaid, and caus-held said lot free from any lien in favor of es the land to be conveyed to his wife, who pays no consideration therefor, the vendor may establish a lien against the land; the wife being a mere volunteer. Strohm v. Kuntz and Kuntz, as the holders of said note. [15-18] The lien of the mortgage, if it constituted a lien, passed to appeilant with its assignment. Likewise the vendor's lien, if Good, 113 Ind. 93, 14 N. E. 901; Humphrey it existed, being a mere incident of the debt, v. Thorn, 63 Ind. 296; Martin v. Cauble, 72 passed with the assignment of the note. Ind. 67, 74. The rule is the same where the Smith v. Mills, 145 Ind. 334, 43 N. E. 564, 44 wife pays the purchase price in part, and. E. 362; Mulky v. Karsell, 31 Ind. App. the husband executes his note for the bal-595, 68 N. E. 689. We have held, however, ance. Scott v. Edgar, supra; Anderson v. Tannehill, 42 Ind. 141. The technical rela tion of vendor and vendee is not necessary to the creating and existence of the lien in favor of one party against the lands of another. Barrett v. Lewis, 106 Ind. 120, 5 N. E. 910; Johns v. Sewell, 33 Ind. 1; Fleece v. O'Rear, 83 Ind. 200; Dwenger v. Branigan, 95 Ind. 221. that in neither case was there a lien. The facts were not sufficient to estop Meyers and wife from contesting the existence of a lien on either theory as against appellant while they owned the lot. Moreover, if the facts were otherwise sufficient to that end, appelAs we lant was an assignee with notice. have said, his attention was specifically di"A vendor's lien is an ancient rule, and had rected to the fact that Meyers and wife, as its origin in the principle of natural justice and husband and wife, were named in the body equity, which impresses the conscience that it is of the mortgage as mortgagors, and that the not fair for a vendee of lands, who gives no oth-wife had not signed it. He was informed aler security, to have, as between the parties, the absolute estate until he has fully paid for it. It rests upon the same foundation as the doctrine of subrogation. It is created by the law solely to secure the payment of purchase money. It is therefore an incident of the debt. It continues to exist until the debt is paid or otherwise discharged." Cassell v. Lowry, 164 Ind. 1, 72 N. E. 640. * ** so that the lot was held by entireties, which Webb A tenant by the entireties owns merely the entire estate. If owned in fee, such an estate is not greater in quantity than any other estate in fee. As argued, it would therefore seem to follow as a natural sequence from [19] The mortgage being of record, apthe foregoing principles that, where lands pellee Parker had constructive notice of its are purchased and conveyed to a husband existence and terms. As the deed under and wife as tenants by the entireties, and which Meyers and wife claimed was a deed in the husband executes his note for the pur- Parker's chain of title, he had notice conchase price, which note remains unpaid, or structively also that the former held by enwhere the wife pays a part of the considera- tireties. Hazlett v. Sinclair, 76 Ind. 488, 40 tion for the conveyance, and the husband exe- Am. Rep. 254; 39 Cyc. 1713; Pom. Eq. Jur. cutes his note for the balance thereof, which (2d Ed.) vol. 2, § 626. Such notice to Parker balance remains unpaid, and where in the included that Meyers alone had executed a latter case the wife at the time of the conmortgage on the lot held by entireties. The veyance has, or is chargeable with, knowl-' mortgage being invalid, these facts are, how ever, unimportant. A like result follows if the record of the mortgage be held to be constructive notice of any vendor's lien that might exist. See Martin v. Cauble, 72 Ind. 67, 73. If the facts were sufficient constructively to place him on, inquiry, such inquiry diligently prosecuted would have led to actual knowledge of the nonexistence of a lien on either theory. In view of the situation thus presented, we hold the evidence to be sufficient to sustain the decision. The record is free from error in other respects. Judgment aflirmed. (63 Ind. App. 201) HARRIS et al. v. RIGGS et al. (No. 9539.)* (Appellate Court of Indiana. May 31, 1916.) as construed by the parties did not invalidate the first finding. [Ed. Note.-For other cases, see Trial, Cent. Dig. 931; Dec. Dig. 395(5).] 8. MINES AND MINERALS 77-OIL AND GAS LEASES-ABANDONMENT. Where an oil and gas lease is abandoned, the lessee cannot thereafter revive the lease without consent of the lessor. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 204; Dec. Dig. 77.] 9. MINES AND MINERALS 77-OIL AND GAS LEASES-ABANDONMENT. In view of the nature of the subject-matter, abandonment will be more readily found in case of oil and gas leases than most cases. . [Ed. Note.--For other cases, see Mines and Minerals, Cent. Dig. § 204; Dec. Dig. 77.] 10. MINES AND MINERALS 50 OIL AND GAS LEASES-BURDEN OF PROOF. One asserting rights under an oil and gas lease has the burden of proof, and cannot recov 1. TRIAL 395(5)-FINDINGS OF FACT-SUF-er by reason of the weakness of defendant's po FICIENCY. Ultimate and not evidentiary facts should be stated in the findings of fact, while facts included in the conclusions of law should be disregarded. [Ed. Note.-For other cases. see Trial, Cent. Dig. 931; Dec. Dig. 395(5).] 2. TRIAL 395(1)-FINDINGS OF FACT-IN TENDMENTS. All intendments and presumptions are in favor rather than against a finding of facts, and if, by considering one part with another, the finding can be said to be sufficient, it will be upheld. [Ed. Note. For other cases, see Trial, Cent. Dig. § 931; Dec. Dig. 395(5).] 3. TRIAL ≈395(5)—FINDINGS OF FACT-EVIDENTIARY FACTS. The presence of evidentiary facts in a finding of facts does not necessarily render it insufficient to support a conclusion of law. [Ed. Note. For other cases, see Trial, Cent. Dig. § 931; Dec. Dig. 395(5).] 4. TRIAL 395(5)—FINDINGS OF FACT-SUF FICIENCY. Where the primary facts contained in a finding of facts require the inference of the ultimate fact, such ultimate fact will be treated as found: hence finding of facts in a suit where oil and mineral leases were involved, showing forfeiture of plaintiff's lease, will be upheld, though the ultimate fact itself was not found. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 931; Dec. Dig. 395(5).] sition. [Ed. Note.--For other cases, see Mines and Minerals, Cent. Dig. § 136; Dec. Dig. 50.] 11. MINES AND MINERALS 77 OIL AND GAS LEASES-ABANDONMENT. Where the lessee never went into possession, and after the abandonment of his oil and such new lease showed the lessor's intention gas lease the lessor again leased the premises, to treat the first lease as annulled. Minerals, Cent. Dig. § 204; Dec. Dig. 77.] [Ed. Note. For other cases, see Mines and Appeal from Circuit Court, Knox County; B. M. Willoughby, Judge. Action by James F. Harris and another against Edgar R. Riggs and others. From a judgment for defendants, plaintiff's appeal. Affirmed. Simmons & Dailey, of Bluffton, McCarty & Arnold, of Robinson, Ill., James M. House, of Vincennes, and Hunt & Gambill, of Sullivan, for appellants. Jay A. Hindman, of Modesta, Cal., Hays & Hays and John W. Lindley, both of Sullivan, James W. Emison, of Vincennes, Lee F. Bays and Fred F. Bays, both of Sullivan, and Fred Van Nuys, of Indianapolis, for appellees. FELT, P. J. This suit was brought by appellants to quiet their title and exclusive right to go upon certain real estate and ex 5. TRIAL 394(3)-CONCLUSIONS OF LAW-plore and operate for oil and gas. SUFFICIENCY. A conclusion of law that on and prior to a date named an oil and gas lease had been forfeited and was null and void is not subject to criticism as containing a finding of facts. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 926; Dec. Dig. 394(3).] 6. TRIAL 394(3) - CONCLUSIONS OF LAW SUFFICIENCY. If such conclusion be subject to criticism, the first portion may be disregarded as surplusage, and the remaining portion, reciting that the lease was forfeited, is sufficient. [Ed. Note.-For other cases, see Trial, Cent. Dig. 926; Dec. Dig. 394(3).] 7. TRIAL 395(5)—FINDINGS OF FACT-ULTIMATE FACTS. The complaint was in seven paragraphs, and appellants based their claims on a lease executed on February 1, 1912. Each paragraph of complaint was answered by general denial, and by special paragraphs of answer directed to each paragraph of the complaint in which facts were alleged to show that appellants had ceased to have any right or claim under the aforesaid lease. A reply of general denial was filed to each paragraph of special answer. On due request the court made a special finding of facts, on which conclusions of law were stated that appellants take nothing by their complaint, and that they pay the costs of suit. Judgment was rendered on the conclusions of law, from which this appeal was prayed and granted. Appellants have assigned as errors, the Where the court in its finding of facts found that an oil and gas lease had been abandoned, a finding of evidentiary facts showing an abandonment and a forfeiture under the lease For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. Transfer denied. overruling of their motion for a new trial; of the lease as therein provided or return that the court erred in its conclusions of law and in each separate conclusion; that the court erred in overruling their motion for a venire de novo. * the lease. That thereupon the lessees refused to make any payment and informed the lessors that they did not desire an extension of time in which to complete a well, The finding of facts is in substance as fol- did not intend to pay anything under the lows: On February 1, 1912, Felix P. and lease, but intended to let it lapse by their Malissa J. Beard, husband and wife, were failure to complete a well or pay any rentals the owners as tenants in common of the 135 as therein stipulated. That on October 25, acres of real estate in controversy, describ- 1912, the lessees aforesaid notified the lesing it; that on said day they executed to sors that they intended to abandon the lease Emery A. Snyder and Jasper Miller an oil and allow it to become void. That on Ocand gas lease on said real estate, which in tober 31, 1912, no well had been commenced substance provides: That for a valuable or completed on said premises, and there consideration said Beard and Beard let and was then due on the lease $30 for a furleased to the second party their successors ther extension thereof. That the conditions and assigns "for the sole and only purpose were the same and a like amount became of mining and operating for oil and gas and due under the lease each succeeding three of laying pipe lines, constructing tanks and months and no amount was paid. That other structures thereon to take care of said "said lease became.void and forfeited on products. * * * It is agreed that this November 1, 1912, and was on said day abanlease shall remain in force for the term of doned." That on February 7, 1913, the said three years from this date and as long there- Felix P. Beard died, leaving Malissa J. after as oil or gas or either of them is pro- Beard, his widow, surviving him. That priduced therefrom by the party of the second or to May 26, 1913, the lessees under the ** part, successors or assigns. The lease of February 1, 1912, had neither taken party of the second part agrees to complete nor demanded possession of the leased prema well on said premises within nine months ises, and had not commenced or completed from the date hereof or pay at the rate of a well, nor paid or tendered any money for $30 in advance for each additional three an extension of the lease. That on May 26, months, such completion is delayed from the 1913, said Malissa J. Beard executed to Edtime above mentioned for the completion of gar R. Riggs and Fred F. Bays another lease such well until a well is completed. The of said lands for oil and gas purposes, conabove rental shall be paid to the first party ditioned that it should remain in force for in person or to the credit of the first party the term of six months from date and as at the Shelburn National Bank." "For and long thereafter as oil or gas should be proin consideration of $1, the receipt of which duced therefrom by the lessees, their sucis hereby acknowledged, the first party here- cessors or assigns. One well was to be proto expressly waive their right to demand or duced within sixty days from date of lease, declare a cancellation or a forfeiture of this and on failure to do so $100 was to be paid lease, except for the nonpayment of rentals in advance for each month's delay. That when due; and further agree that the party at the time the second lease was executed of the second part, their successors or as- the lessees therein had no actual knowledge signs, shall have the right at any time on the of a prior lease on the land. That in purpayment of $1, to the party of the first part, suance of said second lease Riggs and Bays their heirs or assigns to surrender this lease took possession of the leased premises and for cancellation, after which all payments constructed eight wells, in which oil and and liabilites thereafter to accrue under and gas were found in paying quantities. That by virtue of its terms shall cease and de- said lessees have expended in testing and termine." That at the time of the execution developing said property $19,125. That on of the lease it was expressly agreed and un- May 27, 1913, the lessees in the lease of derstood by and between the parties thereto February 1, 1912, visited Malissa J. Beard and the lease was by them expressly conand sought to get from her a new lease of strued to mean that in case the lessees failed said premises and expressed regret that they to complete a well for the production of oil had abandoned their former lease, and then or gas within nine months from the date of and there learned of the second lease aforethe lease, it would be void if the lessees said. That on May 28, 1913, Emory A. Snyshould therafter fail to pay to the lessors the der, lessee in the first lease, congratulated sum of $30 in advance for each three months' Riggs and Bays on the lease they had sedelay in completing such well. That other cured and expressed regret that they had explorations were made in the vicinity of allowed their lease to become forfeited. the leased land within nine months from That on May 22, 1913, oil was found in payFebruary 1, 1912, and no oil or gas was ing quantities on land adjoining said leased found or known to exist in that vicinity. premises, and on May 31, 1913, the lessees in That appellants did not take possession of said first lease left at the bank mentioned said premises under the lease, and on Octo- therein $131.25 and requested the bank offiber 25, 1912, the lessors requested the les-cials to place the same to the credit of MaLees aforesaid to either pay for an extension lissa J. Beard. That before the money was |