May Term, 1854.

A special demurrer to this replication was also overruled. In support of the demurrer, three causes are stated: 1. That BUCHANAN the replication does not traverse or avoid the plea. 2. That it is argumentative. 3. It leaves material portions of the plea unanswered.

V.

PORT.

None of these causes are well assigned. The plea avers that the judgment sued on was given against the defendant without notice of the suit in which it was rendered. This averment was material and set up a valid defence to the action. Upon that averment, the plaintiff, by his replication, took issue. And that issue was no doubt well taken by a common traverse.

It appears by the record, that the Court, at the August term, 1849, upon the defendant's motion, ordered the venue in this cause to be changed to the Marshall Circuit Court. But the expenses incident to such change, never were paid into the hands of the clerk of the Court where the cause originated; nor were the papers in the suit ever transmitted to the said Circuit Court. The case, at a subsequent term, was, on motion, reinstated on the docket and continued. At the term to which the suit was continued, it was tried by a jury. A verdict was given for the plaintiff, and a judgment rendered on the verdict. The defendant did not appear to the motion to reinstate the suit, nor was he present at the trial.

It is contended that the jurisdiction of the Cass Circuit Court over the case ceased, when the order granting the change of venue was made, and that, therefore, the judg ment is erroneous. We are not of that opinion. The Court granting such order does not part with its jurisdiction until the expenses attending the removal of the cause are paid. Until that is done, the clerk of the Court may not deliver the papers out of his office. R. S. 1843, c. 49, s. 5. The seventh section of the same chapter provides, that "The venue shall in no case be changed, unless the party who prays the same shall deposit the order of the Court," &c., "and also the necessary expenses attending the removal, with the clerk having custody of the papers, at least

thirty days before the term of the Court to which such suit May Term, shall be sent for trial."

These provisions of the statute were not complied with, nor was the case ever removed from the Cass Circuit Court. It follows that when this suit was tried, the parties, as well as the cause, were properly within the jurisdiction of that Court.

Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs.

D. D. Pratt, for the plaintiff.

H. P. Biddle and B. W. Peters, for the defendant.

1854. FLETCHER

V.

MANSUR.

FLETCHER and Another v. MANSUR and Others.

The christian name of the grantee in a conveyance of land, was left blank by mistake. The grantce, after the delivery of the deed, for the purpose of defrauding his creditors, without the knowledge of his wife, filled the blank with her christian name.

Held, that the conveyance vested the title in the husband.

Held, also, that his title was not divested by filling the blank with the christian name of his wife.

A husband can not convey land directly to his wife without the intervention of a trustee.

A conveyance of land must be delivered, to pass the title.

Persons who are directly interested in the object of a bill should be made parties.

ERROR to the Shelby Circuit Court.

DAVISON, J.-Mansur, the complainant below, on the 23d of November, 1843, filed his bill in chancery against Elijah Barratt, Sr., and the following-named children and heirs of Mary C. Barratt, deceased, viz., James Barratt, Elijah Barratt, Jr., Susan Barratt and Lydia Barratt; the said Mary C. Barratt, at her death, being the wife of Elijah Barratt, Sr. On the 20th of March, 1848, the complainant filed a supplemental bill, whereby he made Fletcher and Butler parties to the suit. Elijah Barratt, Sr., failed to appear, and a default was entered against him.

Monday,
June 12.

1854.

May Term, The said children and heirs, being minors, appeared and answered by their guardian. Fletcher and Butler filed their answer to the original and supplemental bills.

FLETCHER

V.

MANSUR.

The material facts presented by the record are these: In March, 1838, Elijah Barratt, Sr., purchased of one Isaac Wood a tract of land in Shelby county, for 2,000 dollars, 1,000 dollars of which was to be paid on the 1st of October, 1839, when the grantee was to receive a deed for the premises. Wood was a resident of Rush county, and some days prior to the last-named period, he went before a justice of that county and executed a deed for land. Being ignorant of Barratt's first name, the deed was made to him by his surname alone, leaving a blank for his christian name, which the grantor intended to insert in the deed before he delivered it. Wood delivered the deed to the grantee, intending thereby to vest in him the legal title to the premises, but through neglect omitted the insertion of the grantee's christian name. After the delivery, Barratt, with an intent to defraud subsequent creditors, filled up the blank left in the deed with the christian name of his wife, thereby making it purport to convey the land therein described to the said Mary C. Barratt. Elijah Barratt, Sr., on the 31st of July, 1841, mortgaged the premises in question to James Fassett & Co., of Philadel phia, to secure the payment of 1,506 dollars. This mortgage was duly recorded. At the February term, 1843, Wood obtained a decree in the Shelby Circuit Court, directing the sale of the land for the payment of 728 dollars, a balance of the purchase-money then unpaid. Mansur, at the same term, recovered a judgment against Barratt for 207 dollars, upon a note given by him in February, 1840.

The object of the original bill in this case was to subject said land to the payment of Mansur's judgment. About the 1st of October, 1844, Fassett & Co. placed their mortgage in the hands of Fletcher and Butler, attorneys, for collection, upon which suit was commenced in the Circuit Court of the United States for the district of Indiana. On the 20th of February, 1845, the premises were offered for sale on Wood's decree, and then sold to Fletcher and Butler for

1,205 dollars. They paid into the hands of the sheriff 876
dollars, the amount of the decree and costs, which left a
balance undisposed of, and in their hands, of 328 dollars.
The complainant, by his supplemental bill, claims this
balance, to be applied in payment of his judgment, and
prays a decree against Fletcher and Butler, directing them
to pay
it over for that purpose. It was shown that at the
time of the sale on Wood's decree, Fletcher and Butler had
notice of Mansur's original bill, and that he intended to
claim any overplus that might remain from the sale of the
land on said decree, after it was fully satisfied. But it
appears that prior to the filing of the supplemental bill,
viz., on the 20th of February, 1845, Fletcher and Butler,
pursuant to an agreement between them and Barratt, set-
tled said overplus of 328 dollars, by giving him a credit on
the mortgage of James Fassett & Co., then in their hands
for collection. Fassett & Co. were not made parties to the
suit, nor does it appear that the deed from Wood was ever
delivered to Mary C. Barratt, or that she was ever aware
of being the grantee of the land.

Upon a final hearing, the Circuit Court rendered a decree against Fletcher and Butler, in accordance with the prayer of the supplemental bill.

The record presents this question: Had Barratt, at the time he executed the mortgage to James Fassett & Co., a mortgageable interest in the premises? If he had, then that firm was entitled to the 328 dollars, and it was properly applied as a payment on the mortgage.

The deed was delivered by the grantor to Barratt, with the intention of vesting in him the legal title, and no doubt that was its effect. Though the deed wanted his christian name, and on that account might be considered ambiguous, still that was an ambiguity that could have been supplied by proof aliunde. The title thus being in Barratt, as grantee, could not be divested by the mere insertion of the christian name of his wife in the blank left by the grantor. That insertion, in our opinion, was a void act, and conveyed to her no title. A husband can not convey lands

May Term, 1854.

FLETCHER

V.

MANSUR.

May Term, directly to his wife, without the intervention of a trustee. 1854. 2 Kent's Comm. 106.

VINCENT

V.

DIXON.

Besides, it is evident the deed never was delivered to Mary C. Barratt, nor under her control. Without such delivery, she could acquire no title to the premises. 2 Ind. R. 562. Elijah Barratt was, therefore, the absolute owner of the land. He had a perfect right to execute the mortgage to Fassett & Co. It constituted a specific lien on the premises prior to Mansur's judgment. It follows that the mortgagees were entitled to the overplus of 328 dollars.

This view of the case shows the decree to be erroneous upon another ground. James Fassett & Co. should have been made parties to the suit. Unquestionably, the members of that firm had a direct interest in the object of the bill. A proper decision of the cause could not, therefore, be made, without affording them an opportunity to appear and vindicate their rights. Story's Eq. Pl., ss. 73, 83, 86, 236, 237.-R. S. 1843, p. 833.

Per Curiam.-The decree is reversed, with instructions to the Circuit Court to dismiss the bill.

H. C. Newcomb, for the plaintiffs.

J. Morrison and S. Major, for the defendants.

Thursday,
June 15.

VINCENT and Wife v. DIXON.

In slander, the plaintiff can not prove the speaking of words not laid in the declaration, to aggravate the damages.

ERROR to the Delaware Circuit Court.

Per Curiam.-Case for slander. Charge complained of, larceny. Pleas, the general issue and justification.

On the trial, after the plaintiff had proved, by two witnesses, the speaking of the words laid in the declaration, he was permitted by the Court, the defendant objecting, to prove the speaking of similar slanderous words, upon other occasions, expressly for the purpose of aggravating