
    Maynard et al. v. Waidlich et al.
    [No. 18,803.
    Filed May 9, 1901.]
    
      Pleading. — Joint Demurrer. — A demurrer to second, third, and fourth paragraphs of reply on the ground that neither of the paragraphs states ’facts sufficient to avoid the answer is joint, and not several, and if either paragraph was good the demurrer was properly overruled, pp. 564, 565.
    
    Appeal and Error. — Joint Assignment. — Conclusions of Law. — An assignment of error challenging all of the conclusions of law jointly must fail if any one of the conclusions is correct, p. 565.
    
    
      Same. — Assignment of Error. — Conclusions of Law. — The correctness of conclusions of law must be questioned by proper exceptions to each conclusion and assigning error thereon, not by motion to restate the conclusions, p. 565.
    
    Same.— Special Finding.— Conclusions of Lato.— Exceptions.— Mo-‘ tipns. — Whdlre there is.a special finding and conclusions of- law thereon, and the judgment is rendered in conformity with the conclusions of law, an exception to each conclusion of law, and not a motion to modify the judgment, is the remedy, pp. 565, 566.
    
    Same. — Record. — Original Bill of Exceptions. — Although nothing except the evidence and questions concerning the competency of witnesses and the admissibility of evidence can be brought into the • record by an original bill of exceptions, when the original bill contains matters which cannot be brought into the record in that manner, the matters properly in the record will be considered and the improper disregarded, p. 566.
    
    
      Mortgages. — Husband and Wife. — Lands Descending from Former Husband. — Judgments.—Former Adjudication. — Collateral Attack. —A decree of foreclosure, of a mortgage executed by a woman arid her second husband on land which descended from her first husband (there being children of such first marriage living), in violation of §2341 Burris 1894, is conclusive, and cannot be attacked in a collateral- proceeding. McCullough v. Davis, 108 Ind. 292, overruled. ■ pp. 566, 575.
    
    
      Judgments. — Conclusions.—Collateral Attack. — Pleading.—The conclusiveness óf a judgment on collateral attack recovered in a case where the'court had jurisdiction of the parties and the subject-matter of the action' is riot affected by the insufficiency of the pleading upon which it was rendered, p. 575.
    
    From the Whitley Circuit Court.
    
      Affirmed.
    
    
      L. W. Boyse, A. G. Wood and F. F. Bowser, for appellants.
    
      T. B. Marshall, W. F. McÉagny and P. II. Clugston, for appellees.
   Monks, J.

Appellees brought this action to foreclose a mortgage executed by appellant Harriet Maynard and Elon Maynard, her husband, to appellees to secure certain promissory notes ■ executed by said Harriet to said appellees for the unpaid purchase money of the real estate described in the mortgage. The cause was tried by the court, a special finding of facts made, and conclusions of law stated thereon in favor of appellees, and over a motion for a new trial by Harriet Maynard, judgment and decree of foreclosure were rendered against the said Maynard and Maynard. Harriet Maynard alone appeals, and assigns errors as follows: “(1)-The court erred in overruling the demurrer' of said appellant to the second.paragraph of reply; (2) the court erred in overruling the demurrer of said appellant to the third paragraph of reply; (3) the court erred in the conclusions of law stated upon the finding of facts; (4) the court erred in overruling said appellant’s motion to restate the conclusions of law; (5) the court erred in overruling said appellant’s motion for judgment in her favor upon the special facts -found; (6) the-court erred in rendering a decree of foreclosure upon the one-third of the real estate described in the complaint and claimed by appellant; (7) the court erred in overruling said appellant’s motion for a new trial.”

■ It is alleged in the second paragraph of the separate answer 'of ■ appellant, Harriet Maynard, “that about the year 186,0, one .Clinton S.- Perrin, who was a resident of Whitley county, Indiana, died the owner in fee simple of all the land described in appellees’ complaint and mortgage; that he Owned no other real estate' at the time of his death; that he left surviving him said' appellant Harriet,'his widow, and their children, Rial, Hiram, and Edwin S. Perrin, his only heirs at law,;all of whom are now living; that in 1861 said Harriet- married Elon Maynard, since which time she has remained continuously and now is his wife; that she never, before her marriage to said Maynard, sold or conveyed said real estate or any pal-t thereof or interest therein to any one, by deed or otherwise; that she has not since her marriage to said Maynard sold or .conveyed said real estate, or any part thereof or interest therein, by- deed or otherwise, in which her said children by her .first husband or either of them-joined; that she is still the:owner of the undivided one-third of said, real estate, by virtue of her marriage with and as the widow of the said Clinton S.- Perrin, deceased, and holds the same free from any. encumbrance or lien whatever by virtue, .of said mortgage.” . - .

The. second, and third paragraphs of reply to said second paragraph, of answer plead a former adjudication. The objections .urged-to these paragraphs of .reply are Such as can only be. reached by motions to make- more specific, and - not by ,a demurrer for-want of;facts.. Even if the third paragraph o.f reply “counts upon an estoppel in pais” and the facts alleged- are,insufficient to support the same, as claimed by-appellant, yet-no reversible error was committed in overruling the demurrer thereto, for the reason that. the demurrer ,to the1 reply, was joint and not several as to said paragraphs. Said demurrer is as follows: “The defendant, Harriet Maynard, demurs 'to'thé second, third, and'fóhrth paragraphs of plaintiff’s reply to the second paragraph ’ ó'f the answer of the said d’eféndánt, and sáys that' neither o'f said paragraphs o'f reply states facts sufficient'tó avoid "sáM answer.” This demurrer is joint, and'hot several. Rownd v. State, 152 Ind. 39, 42, and cases cited. The court did not err, therefore, in overruling the same.

There were four conclusions of law, and appellant ■ excepted to the same in gross. The third error assigned challenges all of the conclusions of law jointly. If any Pilé of the conclusions of law is correct, appellant'must 'fail as to this assignment. Ewbank’s Manual, §135; Kline v. Board, etc., 152 Ind. 321, 326; Hatfield v. Cummings, 152 Ind. 537, 541; Baker v. Cravens, 150 Ind. 199, 201; Royse v. Bourne, 149 Ind. 187, 190, 191, and cases cited; Evansville, etc., R. Co. v. State, 149 Ind. 276, 283, and cases cited. It is not claimed that all of the 'conclusions óf láw are erroneous, and ■ it is evident that the third is correct: No question is presented, therefore, by the third assignment of errors. A motion to restate the conclusions of law is not recognized by our code of procedure, and for this reason the fourth error assigned presents no question. McFadden v. Owens, 150 Ind. 213, 214. Thé correctness óf conclusions of law is only questioned by a proper excéption to' each conclusion and assigning as error in this court that the court erred in each conclusion óf law, or that the conclusion of law which'is challenged is erroneous. Nelson v. Cottingham, 152 Ind. 135, 136-138, and cases cited; Jones v. Mayne, 154 Ind. 400, 402, 403, and cases cited; Smith v. Barber, 153 Ind. 322, 332.

The judgment in this case strictly followed thé conclusions of law, and was rendered in conformity therewith. No question is presented, therefore, by the fifth and sixth errors assigned. Nelson v. Cottingham, supra, and cases cited; Jones v. Mayne, supra; Anglemyer v. Board, etc., 153 Ind. 217, 218.

When there is any objection to a judgment rendered upon' a verdict or general finding of a court, a motion to modify the same must be made in the trial court before any question, can be presented in this court concerning the: same. Hawks v. Mayor, 144 Ind. 343, 349, and cases cited; McGinnis v. Boyd, 144 Ind. 393; Seisler v. Smith, 150, Ind. 88, 90, and cases cited; Evans v. State, 150 Ind. 651, 655, 656, and cases cited. When, however, there is-a special finding-and. conclusions of law thereon and the judgment is rendered in conformity with the conclusions of law, ’an' exception to each conclusion of law, and not a • motion to modify the judgment, is the remedy. Nelson v. Cottingham, supra, 136, 137.

The grounds assigned for a new trial were that the finding was not sustained by sufficient evidence;- and that the same was contrary to law. The determination of -these grounds for a new trial depends-upon the evidence which appellees insist is not properly in the record. The-original bill of exceptions which is embodied in 'the transcript contains, in addition to the evidence, a number of motions made in the court below by appellant, the rulings of the ■ court thereon and the exceptions of appellant thereto.- -It is true, as claimed by appellees, that nothing except the evidence and .questions concerning the competency of witnesses, and the admissibility of evidence, can be brought to -this court by an original bill of exceptions. Ewbank’s Manual, §35; Adams v. State, post, 596. When, however, the original bill of; exceptions embraced in the transcript contains the evidence as well as matters, which can not be brought to this court in that manner, the evidence and questions concerning its admissibility and the questions of the competency of the witnesses will be considered and determined while the other matters shown by such bill will be disregarded. Adams v. State, supra.

It appears from the evidence that in 1860 .Clinton S. Perrin died intestate the owner in fee simple of the real estate described in the complaint and mortgage, which was all the real estate owned hy him at that time. That'he left surviving him appellant, his widow, and their -three sons, as his only heirs, all of whom are now living. 'Subsequently, appellant was married to Elon Maynard. . That said sons and their wives, in 1883,-sold and conveyed said real estate by warranty deed .to said Elon Maynard, and he paid them the full and fair value of their interest therein, including their interest in expectancy in the undivided one-third thereof that wquld descend to ■them from appellant, their mother, at her death.. On February 22, 1883, Eloii Maynard and appellant, Harriet. Maynard, executed a mortgage on all of said, real estate to one Shorb, to secure four promissory notes for $1,000 each,. executed by said Elon Maynard. Afterwards, in 1892, said Shorb brought an action against said Elon Maynard, Harriet Maynard, and others, among whom were appellees, to foreclose said mortgage. Appellant, Harriet Maynard, appeared and filed an. answer and cross-complaint in said action. Her husband and all other parties to said action were made defendants to said cross-complaint. In one paragraph of answer she alleged that' said real estate descended to her and her said children from her deceased husband, Clinton S. Perrin, who died intestate, and that at the time of signing said mortgage she was the wife of Elon Maynard, her codefendant in said aetion, and that said children of said Perrin were still living and had never disposed of their interest in .said estate. In another paragraph she alleged as to 120 acre's of the real estate described in said mortgage, that the same was purchased for her by her husband, Perrin, with her money, and he was to have the deeds therefor made to her, but that without her knowledge or consent he fraudulently took the title thereto in his own name; that she had always; believed that the title thereto had been vested in her; that; she has been in full possession of said 120 acres of real estate since its purchase; that said Shorb had notice of all1 said facts wbqn said mortgage was executed; that said! mortgage was executed to secure the. indebtedness.of said Elon Maynard, and for no other purpose .whatever. .. The same facts were alleged in her cross-complaint and, she asked that her title .to said real estate be quieted. - ■ - ¡ ■ .

Said Shorb filed demurrers to said cross-complaint and each paragraph of .said answer, and the' same-were, overruled. Said Shorb filed a general denial to the hnswer and cross-complaint of said Harriet Maynard, and'also a Second paragraph alleging certain facts upon the theory- that- appellant was estopped thereby from claiming any title in said real estate except her inchoate interest therein as-the wife óí Elon Maynard. Appellant filed a reply to'-said- second paragraph. Said cause being at issue was tried by. the court and the court found for said Shorb and ‘^against said Harriet Maynard on her answer-and cross-coinplaint and that said .EloB- Maynard was, at the time of the. execution >'of plaintiff’s mortgage, and now is, the owner -of the entire tract of land described in the complaint' ‘and m'ortgáge, free and clear from any secret trust or ‘declared trust' -in' favor of his codefendant, Harriet Maynard, and that the title bf said Elon Maynard therein should be quieted "as to' any-claim of'defendant Harriet Maynard, and that'said-Harriet Maynard should be forever estopped from claiming or Set-' ting up or declaring herself to be the own'er of any interest in said real estate.” The court also found for said Shorb' on ' his complaint against ■ all the defendants théretoi A decree of foreclosure was'rendered against all the defendants in said action, and that said Elon Maynard' is' the owner of the real estate described in the complaint and mortgage', and quieting his title thereto against said Harriet Maynard. Said court had jurisdiction' over the subject-matter and the parties to said action. Subsequently an order of sale was issued upon said decree to, fhe sheriff of "Whitley county, who gave proper notice that said real éstate would fee sold under said decree. That on the day fixed for said' sale, said Harriet Maynard served a notice on said sheriff and the prospective bidders that She, as the wife of Elon Maynard, was entitled to. ‘‘an inchoate one-third interest in said real estate, and is entitled to have the undivided two-thirds-thereof first offered'for sale before the entire tract is offered;or sold;” Thereupon the said sheriff offered and sold said real estate, subject to the inchoate interest.of said Harriet Maynard therein as the wife of said EloñMaynárd, toChristian Waidlich, one of the appellees, for the-full amount of the-judgment, interest^ and cost in said action,, and issued to him -a certificate of purchase’ therefór¡. After the.expiration of one year, said-.ieal estate-not having been redeemed,'the 'sheriff executed a deed to-said Waidlich for said real estate -as -required by 'law. That at the time said Waidlich purchased said real' estate at sheriff’s sale, he believed that Elon Maynard was the owner of said real ¡estate qnd that'Harriet Maynard-had no interest therein except her inchoate interest as the wife of said Elon -Mayñard, and he-relied upon and believed the notice which.said-Harriet served upon the sheriff at the sale, that -the claim she had-in said land -was such inchoate interest, and if it had not been for such notice -and-belief he would--not have made such purchase. -After receiving.'the-sheriff’s deed for .the real estate purchased at.s'aid sale-; he sold and-conveyed the same by quitclaim deed to- 'appellant,, who executed her notes for-the ¡unpaid purchase money,', and, to secure said .unpaid, purchase'money,'executed the mortgage sued upon.'in this action on all of said -real-estate,/her husband, Elon Maynard, joining-in'the execution thereof-/ -That appellant, Harriet Maynard, did not before.her marriage to said,Elon Maynard convey said real estate, nor after such marriage did she join in a'conveyance, thereof with her three sons by said Perrin.

It .is, settled law'that'a. woman during a second or -subsequent marriage is prevented by §2641 Burns 1894, §2484 R. S. 1881 and Horner 1897, from, conveying-by deed .-or mortgage the real estate received and held by her by virtue of" her -previous marriage, so long as there are children by such marriage, or their descendants alive. Avery v. Akins, 74 Ind. 283, 291, and cases cited; Edmondson v. Corn, 62 Ind. 17; Aetna Ins. Co. v. Buck, 108 Ind. 174, and cases cited; United States, etc., Co. v. Harris, 142 Ind. 226, 239, and cases cited; Horlacher v. Brafford, 141 Ind. 528; Mickels v. Ellsesser, 149 Ind. 415; Forgy v. Davenport, 146 Ind. 399, 403.

But even if a purchaser of such real estate during said second or ^subsequent coverture acquires no title thereto, yet if he brings an action against such vendors to quiet his title to said real estate, and recovers judgment against them, quieting his title thereto, such, judgment is binding on the parties, and they cannot thereafter question the title, of such purchaser to such real estate. Hawkins v. Taylor, 128 Ind. 431.

The question to be determined, therefore, is whether or not appellant is estopped from asserting her title to the undivided one-third of said land, inherited from her first husband, Clinton S. Perrin.

The general rule is that a judgment is conclusive against the parties to the same, and those claiming under them,, as to all matters that were or might have been litigated in the action under the issues. 21 Am. & Eng. Ency. of Law, 216, 220; Ulrich v. Drischell, 88 Ind. 354, 358; Elwood v. Beym, 100 Ind. 504; Thomas v. Thompson, 149 Ind. 391; Moore v. Horner, 146 Ind. 287; Parker v. Obenchain, 140 Ind. 211; Stanton v. Kenrick, 135 Ind. 382; Clements v. Davis, 155 Ind. 624, 631, and cases cited; Gilmore v. McClure, 133 Ind. 571; Masters v. Templeton, 92 Ind. 447; Miller v. Hardy, 131 Ind. 13.

In an action to foreclose a mortgage, the validity of the mortgage and the power and capacity of the mortgagors, or either of them, to execute it, are in issue, and when the same is foreclosed, the power and capacity of the mortgagors to execute the same, the right to foreclose it and sell the land therein described are conclusively adjudicated, whether the judgment and decree of foreclosure were by default' or Otherwise. Craighead v. Dalton, 105 Ind. 72, and cases cited; Miller v. Hardy, 131 Ind. 13, 18, and cases cited; Bundy v. Cunningham, 107 Ind. 360, 362, 363, and cases cited; Ballew v. Roler, 124 Ind. 557, 558, 559, and cases cited, 9 L. R. A. 481; Davis v. Barton, 130 Ind. 399; 1 Van Fleet’s Former Adj., p. 447. It was said in Ballew v. Roler, supra: “Our decisions, extending over many years, uniformly hold that a decree of foreclosure estops a party from setting up any title acquired before the decree was rendered.”

The promissory notes of married women and their .other executory contracts, executed prior to the act of 1881 enlarging the powers of married women, were void. Lackey v. Boruff, 152 Ind. 371, 375; O’Daily v. Morris 31 Ind. 111; Hodson v. Davis, 43 Ind. 258, 263, and cases cited; Putnam v. Tennyson, 50 Ind. 456; American Ins. Co. v. Avery, 60 Ind. 566, 570; Williams v. Wilbur, 67 Ind. 42, 44; Thomas v. Passage, 54 Ind. 106; Eberwine v. State, 79 Ind. 266, 267.

It has been uniformly held, however, by this court that a judgment by default or otherwise on such void contract against such married women was conclusive, and could not be called in question collaterally. McDaniel v. Carver, 40 Ind. 250, 252; Elson v. O’Dowd, 40 Ind. 300, 306; Wagner v. Ewing, 44 Ind. 441, 443; Landers v. Douglas, 46 Ind. 522; Burk v. Hill, 55 Ind. 419; Schlemmer v. Rossler, 59 Ind. 326, 329; Hinsey v. Feeley, 62 Ind. 85; Wright v. Wright, 97 Ind. 444, 445.

' In Wagner v. Ewing, supra, speaking of the contract of a married woman, it was said, on page 443: “The note ¿s to her was void, and would have been so held, if she had pleaded her covérture when she was sued upon the note; but having failed to do so and permitted judgment to be rendered against her, the note is merged in the judgment, which can not be attacked in this collateral proceeding. The judgment was a lien upon her property.”

In McDaniel v. Carver, supra, it was sáid on page 252: “The makers of. the note in this case were summoned into court, that they might have -an opportunity to set up any defense which they might- háve against the ■ plaintiffs action.- Having failed to set aip the defense of coverture, or if it was-set up; having-failed to derive any benefit from it, and judgment having been rendered against her, it can not he set up nowy either by her ór by the defendants ill this case, as a reason why the judgment shall not-he enforced by execution. A party might, with the same propriety, be allowed to go behind the judgment to set up any other defense.”

In the case of Craighead v. Dalton, 105 Ind. 72, heretofore cited, a woman and her ■ second husband executed a mortgage on lánd which she inherited from her first husband as his widow. After the execution of said mortgage she died leaving her second husband and two' children by her first husbánd surviving.-' ■ Afterwards suit was brought to foreclose said' mortgage and the children of said first marriage were made defendants. One of > them. suffered default, -and the other, a-minor, answered by a-guardian ad litem." A-decree was rendered against the defendants -to the suit -foreclosing said mortgage - on said real estate, and on this decree the lahd "was .sold.- After the-purchaser, under said decree-,' received a sheriff’s deed, one of said children— the other having' died after the foreclosure — brought an action for possession of- said real estate on the theory that said mortgage was-void'as to their mother, -and that, therefore, the decree of foreclosure was void :as to them. And this Court-held that'said-decree of foreclosure adjudicated the rights of all the parties-before1 the court, and . that said surviving child,- the plaintiff in-the action for possession, could not thereafter successfully- assert any claim to said real estate as against said decree. The court speaking -by Elliott, J., said, on page 74: • “The main averment of the complaint in the foreclosure suit was the execution of the mortgage, and this, of course, included the-element of the power to execute it, so that the question of the power to execute the -mortgage was in issue. It has often been decided that, a judgment will bind a married woman -although the instrument upon which the action was founded would have been adjudged void had a defense been, .made, and that principle applies here, for the.power to. execute .the mortgage was in issue and the decree is .conclusive. . To hold otherwise would tend to make titles insecure, and to impair confidence in the decrees and judgments of the courts. , * * There could have been no .right of. action in. the plaintiff in the foreclosure suit if there was .no power, to executé the mortgage. Ilis cause of. .action depended entirely, upon the validity of the instrument on which it was founded. . In suing upon that instrument and in bringing the .appellant into court to join issue upon the complaint, the plaintiff in that suit asked the appellant to litigate the validity .of the mortgage and the right to foreclose.it, and also to contest the right to sell the land described in it. . In decreeing that the mortgage should be foreclosed.-the court necessarily adjudicated upon these questions,, and where a .matter has been adjudicated by a court haying, jurisdiction it is set at rest. It would be unjust to purchasers to, permit ope who has had an opportunity to make a defense to a mortgage and to assert his interest in the land to come in l,ong after: wards and destroy the title, founded ©n the degree. * * * There can be no doubt that the appellant might have litigated every question affecting the rights of, the mortgagee and his Own in the foreclosure suit, and haying this right it -was his duty to do so. This is within the rule, laid down in Fischli v. Fischli, 1 Blackf. 360, 12 Am. Dec. 251, where it was. said, of the doctrine of former adjudication, that ‘This principle not only embraces what actually was .determined, but also extends, to every .other matter, which the parties might ha.ve litigated in the. ease.? ” This reasoning is .unanswerable and applies fully t.o the adjudication in the foreclosure of the Shorb mortgage.

. It is true that in McCullough v. Davis, 108 Ind. 292, it was held that a decree of foreclosure rendered on a mortgage executed by a woman and her second husband on land which descended from her first husband to her as his .widow, there being children of such first marriage living, was void, and a purchaser under such decree took no 'title to such real estate. This decision was placed, upon the ground that .the mortgage was void, and it was assumed without giving any re.ason therefor that the decree of foreclosure' rendered-thereon was, therefore, void. The case of Craighead v. Dalton, 105 Ind. 12, where the title of a.purchaser of land under a decree foreclosing a void mortgage was sustained, and the cases holding that judgments against married women on their void contracts were conclusive against such married, women,-until properly vacated and. set-aside, were not considered or mentioned. These cases and. the principles therein declared seem to. have been overlooked or disre-, garded, and received no consideration in McCullough v. Davis, supra. Said cbse is not supported by .reason and is contrary to the. great height of authority in this State, and.. is .therefore overruled. But this case is much stronger against appellant than the case of Craighead v. Dalton, supra, where the judgment was by default as .to one of the defendants, and on a general denial of - a guardian- .ad litem as to the other.

It will be observed that in the action on the Shorb mortgage appellant1 alleged by way of answer her title to. .the one-third of said land as the widow .of said Perrin, and by answer, as well as by cross-complaint, alleged that her first, husband, Perrin, held. 120 acres, of said land-in trust, for her, of which fact Shorb had knowledge when -he took said mortgage. The'case was tried upon its merits, and -the court -found against her on her answers and cross-complaint, and in favor of Shorb on his complaint, and said mortgage was foreclosed; A decree was also entered quieting the title of her husband in said real estate against her. As her • husband had no cross-complaint or other pleading asking to quiet his title to said real estate against her, this part of the decree was without the issues, and for that reason not binding on her. Clements v. Davis, 155 Ind. 624, 631, and cases cited; Finley v. Cathcart, 149 Ind. 470, 477, 478, and cases cited, 63 Am. St. 292; Jones v. Vert, 121 Ind. 140, 16 Am. St. 379.

The remainder of the decree, however, was within the issues and binding on all the parties thereto. It was.conclusively adjudicated in said action that said mortgage was valid, that appellant had the power to execute the same, that it was a lien on said real estate, and that she had' no title or interest therein except such as was junior and subject to the lien of said mortgage. Appellees acquired title to said real estate under said decree of foreclosure, and are entitled to the benefit of said adjudication against appellant in this action. Appellant insists that her answer in the Shorb case that she inherited the undivided one-third of said real estate from her former husband, Perrin, was insufficient, and did not allege facts sufficient to defeat a foreclosure of said mortgage on said undivided one-third of said real estate, and that for this reason it was not adjudicated that she had the power to execute said mortgage on said one-third.

, Each of said paragraphs of answer and her said cross-complaint were challenged by demurrers for want of facts and were held sufficient by the trial court in that action and those rulings, even though erroneous, are binding on appellant and Shorb until vacated or set aside. Jarrell v. Brubaker, 150 Ind. 260, 272; Ballew v. Roler, 124 Ind. 557, 559.

The sufficiency of the pleadings in that action can not, therefore, be questioned in this. The conelusiveness of a judgment recovered in a case where the court had jurisdiction of the parties and the subject-matter-of the action is not affected by the insufficiency of the pleading upon which it was rendered.. State v. Krug, 94 Ind. 366, 370, and cases cited; Russell v. Lamb, 49 Fed. 770.

It is clear, however, from the. authorities cited, that even if appellant had suffered default in the Shorb case, or if she had appeared and failed to set: up-her title to the undivided one-third of said real estate as the widow of Perrinj she would have been .conclusively bound by said decree. The main averment in the complaint in. the Shorb .foreclosure case was the execution of the mortgage, ’ and this included the power to execute it. There .was no right of action in Shorb as to the undivided .one-third of said real estate, if appellant had .no power to execute the mortgage thereon. The decree of foreclosure in that case, therefore, necessarily adjudicated the validity of said mortgage as to said, undivided one-third of said-real estate,, and appellant’s power to, execute the same, thereon, and the- right to foreclose the mortgage..and sell said undivided one-third. , It follows, therefore, that appellant is concluded by the decree in the. Shorb case, even if her answer, in that case was insufficient and could be questioned here.

s-It is insisted by appellant, that she wras sued in the Shorb ease as. the wife of Elon Maynard and that she is therefore * only bound in that capacity by the decree in said case.. It is true that the complaint in that case alleges that'.she is.the wife of Elon. Maynard, but it also appears that she. was' sued as a mortgagor. The Shorb mortgage contained full covenants of, warranty. and, purported, to mortgage all the land described therein, in fee. simple. , Such mortgage, ,if valid, covered all the interests owned by either or both of the .mortgagors in said land.. The. decree of foreclosure therefore covered all the rights- and interests of both of .the mortgagors in said real estate, and they were both com eluded.as to,all their rights and interests .therein.

Although, some of the special findings- may not -be susv tai.ned by , the evidence, -yet the evidence fully sustains all that .are. necessary,to. support the conclusions of law stated by, the court. . The judgment follows the conclusions of. law, and is fully sustained.by the evidence. Judgment affirmed.  