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Carver v. Forry.

September, 1895, after the lapse of a year and over from the time Stilwell first notified him of his arrearages on the mortgage indebtedness, it is disclosed that he came to Mr. Doxey's office, in Anderson, for the purpose of securing a release of the mortgage in suit from ten acres of the premises upon his paying $1,000 on the debt. Doxey, it seems, was not present at this time, and appellant Carver made the proposition to his secretary, Mr. Stilwell. The latter testified that at this time he went to the safe and got the notes, made a calculation, and found that the unpaid interest amounted to about $1,500, and then informed appellant that, if he would pay this interest and some "back interest”, he would advise Doxey to release the ten acres from the mortgage lien. Appellant then stated that he could not pay that amount; that the $1,000 was all the money that he was able to raise; that he had been endeavoring to secure enough to pay the loan, but had failed to do so. Stilwell then advised him to see Doxey. He left the office, as the evidence discloses, and returned on the first day of October following. On his second visit Doxey was present at the office, and was informed by his secretary what appellant desired, and he directed the secretary to get out the notes, make a calculation of the amount due and unpaid as interest on the $5,000 note. After making this calculation in the presence of both Doxey and appellant, Stilwell made an itemized written statement of all the interest due and unpaid at that time, which included two of the coupon interest notes then over-due,—they bearing interest after maturity, -and also included the interest which had accrued on the principal note of $5,000 after its maturity; and the total amount of interest then due and unpaid, as disclosed by the statement, was $1,614.10. Appellant, after the statement was read over to him, inquired of Stilwell if he had compounded the interest, and was informed that he had not; that the interest as computed was "straight interest." He seems to have made no objection to the statement in respect

Carver v. Forry.

to the interest, and made no claim that either it or the principal note had been previously paid. After having some further conversation on this occasion with Doxey, the latter agreed to release the mortgage lien on the ten acres as requested by appellant on the payment of $1,000. This amount was thereupon paid, and it is shown to have been applied in payment of the amount due on the two coupon notes; and the latter were canceled as paid, and the residue thereof was applied on the interest which had accrued on the principal note after its maturity on January 18, 1893. The court's finding is of date December 23, 1897. Computing the interest at eight per cent. on the principal from the time of its maturity to the date of the court's finding, and deducting therefrom the part of the $1,000 which was given as a credit thereon, and combining the remainder with the principal of $5,000, and adding thereto the amount of $225 allowed as attorney's fees, the total amount substantially coincides with the judgment rendered by the trial court. Appellant does not claim that he made other payments after the $1,000 was paid, at the time heretofore stated, but the contention seems to be that he was not credited with all the payments which he made to Schlater, Doxey's deceased secretary, prior to the time the statement of his indebtedness was made by Stilwell, as heretofore stated. The statement of the interest or indebtedness as made by the latter, and exhibited and read over to appellant, is not contradicted. While on the witness stand he virtually admitted that Schlater had given him credit for all amounts which had been received by Doxey on certain notes known as the “Jones notes," which notes, as it appears, had been turned over to Doxey with the agreement that he was to apply the money paid thereon to the indebtedness, which originally amounted to $9,000. An examination of the evidence given by appellant in support of his plea of payment, to say the least, discloses that it is vague or uncertain, and, to an extent, his testimony is self-contradictory or conflict

Carver v. Forry.

ing; and, under the circumstances, it was the province of the trial court to determine its weight or .credibility. Aside from its uncertain and conflicting character, there is also evidence in behalf of the plaintiff which the trial court may have considered, and properly so, as tending to rebut that given by appellant on the issue of payment. Counsel for appellees in their argument insist that his failure to dispute or in any manner urge any objections against the statement of his indebtedness which existed on October 1, 1895, as shown by the written statement made and exhibited to him by Stilwell, may be taken and considered as his tacit admission that such statement was correct. Were this court, under the circumstances, to affirm that the trial court was not justified in finding against appellant on the issue in question, in so doing it would be compelled to weigh the evidence and determine on which side is the preponderance. It would also have to decide what credibility the lower court ought to have given to each particular witness who testified in regard to the issue of payment. This, under a familiar and well settled rule of appellate procedure, it is not permitted to do. In order to justify this court in disturbing a judgment of a trial court in any case or proceeding on the evidence alone, it must appear that the evidence is such as to raise or present for decision a question of law on some material issue, and that such question, under the judgment of the trial court, was decided erroneously. Mead v. Burk, 156 Ind. 577; Lee v. State, 156 Ind. 541.

Certainly, appellant, under the circumstances, can not assert that there is no evidence to warrant the finding or judgment of the court on the issue in controversy.

Judgment affirmed.

VOL. 1586

Eissler v. Hoppel.

EISSLER V. HOPPEL ET AL.

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(No. 19,726. Filed February 6, 1902. ] COMPROMISE AND SETTLEMENT.Release of Expectancy.Contract Be

tween Heirs.— Wills.-A contract entered into by the parties in compromise and settlement of a suit by plaintiff to establish certain rights and interests in the estate of her father in contravention of the terms of his will, which had been admitted to probate, whereby the plaintiff in such action, for a valuable consideration, in open court, renounced and released all rights under the will of her father, and all right, claim, title, and interest in the estate of which her mother might die seized, is a valid and binding con. tract, and, pleaded in answer, constituted a good defense to an ection by such plaintiff to contest the will of her mother.

From Vanderburgh Superior Court; J. H. Foster, Judge.

Suit by Johanna Eissler against John Hoppel and others to contest a will. From a judgment for defendants on their answer, plaintiff appeals. Affirmed.

H. M. Logsdon and J. G. Owen, for appellant.
A. W. Funkhouser and A. F. Funkhouser, for appellees.

HADLEY, J.-Suit by appellant to contest the will of her mother, Lena Hoppel. The appellees, being the other heirs and beneficiaries under said will, answered that the plaintiff (appellant) had no interest in the estate of her mother and no right to maintain the action. Judgment on the answer for the appellees, from which the plaintiff appeals.

The substance of the answer is: That on the 21st of June, 1893, during the life time of her mother, a cause was pending in the Vanderburg Circuit Court, wherein the appellant and her husband were plaintiffs, and her mother, Lena Hoppel and other named beneficiaries under the will of her father, John Hoppel, deceased, who are also legal heirs of her mother, were defendants; that in said suit appellant was attempting to establish certain rights and interests in the estate of her said father in contravention of the

Eissler v. Hoppel.

terms of his last will, which will had been admitted to probate; that the claim alleged by appellant was adverse to the claims and interest of all the defendants in said suit; that by the will of her father, John Hoppel, appellant was bequeathed $2,500, payable after the death of her mother, Lena Hoppel, with the condition that, if appellant should die without children, $1,000 of said legacy should be paid to her husband and $1,500 divided between the defendants in said suit other than Lena Hoppel; that by way of compromise and settlement of all differences between the parties to said suit then and there pending, and as a settlement and compromise of all disputed rights under the will of said John Hoppel, said parties, after issues joined, agreed in open court to an order, judgment, and decree in these words: “Comes now the defendant Lena Hoppel, by her attorneys, and come now the plaintiffs in person and by their attorneys, and come now the defendants John Hoppel Jr., Henry Hoppel, George Lintz, and Christian Lipper in person and by their attorneys, and the issues being joined, this cause comes on to be heard before the court without the intervention of a jury, and now upon hearing of this cause, and by the consent and agreement of all the parties, made in open court, as a compromise and settlement of all the differences existing between the plaintiffs and the defendants, it is hereby ordered and adjudged and decreed that the defendants pay to the plaintiffs the sum of $3,000 in full settlement and discharge of all liability on the part of the defendants, or either of them, to the plaintiffs, or either of them, and in full satisfaction and discharge of the share or portion to which the said plaintiff Johanna Eissler may at any time have in any estate, property, rights, credits, or choses in action belonging to the said Lena Hoppel, at the time of her, the said Lena Hoppel's death, and in full payment and discharge of all the rights, claims, demands, interest or share, legacy or bequest contained in the last will and testament of John Hoppel, Sr., deceased, and the said

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