parties to the issues in this case. Under the circumstances stated, this certificate was sufficient to establish the fact in question. Moore v. Glover (1888) 115 Ind. 367, 16 N. E. 163. McCauley v. Schatzly (1909) 44 Ind. App. 262, | only objection made to any of this evidence 88 N. E. 972. This being true, we are was based on the sole reason that the "mortconfronted with the following controlling gage and loan shown" are not between the facts: Overbay took the automobile in question, which he had purchased of the Dunbar Motor Car Company a few days before, and which was of the reasonable value of $1,800, and parked the same in the street in front of appellee's place of business. He For the reasons stated, we conclude that then proceeded, in one and the same trans- the court erred in the particular alleged, as action, to execute the bill of sale and alleged it does not appear that appellee has any inconditional sale contract, in consideration of terest in the automobile which is superior $1,200 received from appellee at the same to the rights of appellant, acquired through time in form of a check. After concluding its chattel mortgage. Judgment reversed, this transaction he drove the automobile with instructions to the trial court to susaway. Appellee had never owned the auto-tain appellant's motion for a new trial, and mobile prior thereto, and never at any time for further proceedings consistent with this had the same in its possession. opinion. BIRDSELL MFG. CO. v. TRIPP. Oct. 31, 1923.) 1. Master and servant 382-Release from llability for compensation held without consideration, The only conclusion to be drawn from these facts is that appellee never became the bona fide owner of the automobile, and hence was not a bona fide vendor thereof, and that, not being a bona fide owner and vendor, the alleged conditional sale contract was without a sufficient basis to render it valid as (Appellate Court of Indiana, Division No. 2. such. To hold otherwise would require that an effect be given to the transaction, whereby a momentary transfer of title, through an instantaneous sale and resale, was attempted, which is unwarranted, even when aided by all reasonable inferences of which the attending facts and circumstances are susceptible. There appears to be no room for reasonable doubt in this regard: but, if there were, it should be resolved in favor of the conclusions announced, under the settled rule regarding conditional sale contracts. 11 C. J. 412; 24 R. C. L. 446; Plummer v. Shirley (1861) 16 Ind. 380; Heath v. Williams (1869) 30 Ind. 495; White v. Redenbaugh (1907) 41 Ind. App. 580, 82 N. E. 110; Schneider v. Daniel, supra. Appellee has cited the case of Cable Co. v. McElhoe, supra, in support of its contention that the conditional sale contract in this action should be sustained as such; but we are of the opinion that the facts of that case are so far different from the facts of the instant case as to render them distinguishable. However, if this were not true, we would be compelled to hold that the settled law, as here announced, was erroneously applied to the facts involved in that case. of compensation then due signed a paper reWhere an injured employee upon payment leasing the employer from further liability, on the belief that he was signing a receipt for the compensation then due him, such release being obtained without consideration, is not binding on the employee. 2. Master and servant 419-Employer may terminate liability for compensation by proceeding under statute. An employer believing his liability to an injured employee at an end, because of changed conditions since award was made, should proceed under Workmen's Compensation Act, § 45, as amended by Laws 1919, c. 57. 3. Master and servant 382-Failure to read An order of the Industrial Board, under [4] Appellee also contends that the evidence fails to show that the chattel mortgage through which appellant claims was ever recorded. This contention is not sustained by the record. Appellant introduced his mortgage on the automobile in evidence, together with the certificate of acknowledge- the Compensation Act, finding that the pleadment attached thereto, and a recital indorsings were not proper to protect the rights of ed thereon, signed by the recorder of the county in which the mortgagor at the time resided, to the effect that it was received for record and recorded on July 8, 1921. The further hearing, and giving both parties leave an employee, and continuing the matter for to amend pleadings and to introduce additional evidence, is not a final award so as to oust the board from further jurisdiction in the case. (141 N.E.) Appeal from Industrial Board. Proceedings under the Workmen's Compensation Act by B. D. Tripp, opposed by the Birdsell Manufacturing Company. From an order of the Compensation Board granting an award, employer appeals. Affirmed. White & Jones and Joseph H. Weir, both of Indianapolis, and Samuel A. Harper, of Chicago, Ill., for appellant. Samuel Parker, W. G. Crabill, S. J. Crumpacker, Arthur L. May, and W. S. Carlisle, all of South Bend, for appellee. MCMAHAN, C. J. Appellee while in the employ of appellant received an injury which arose out of and in the course of his employment. An agreement for compensation was entered into and approved, whereby appellant agreed to pay as compensation $10.59 per week "during total or partial disability" not exceeding 500 weeks, beginning July 14, 1921. February 18, 1922, appellant through its insurance carrier paid appellee $42.36, that being the amount of compensation up to February 15, 1922, and secured a receipt from appellee containing a recital that disability had ceased February 15, 1922, and that the payment so made was in final settlement of compensation due appellee by reason of the injury received while in appellant's employ. Appellee afterwards filed a petition for a review because of changed conditions. The full board, on review of an award by a single member, found that the pleadings were not proper to protect the rights of appellee and continued the matter for further hearing giving both parties leave to amend pleadings and to introduce additional evidence. Ap and led to believe that it was necessary to compensation then due him; that at that execute said paper in order to secure the time appellee was wholly disabled to work; board ordered that the final receipt and reand that his disability had not ceased. The lease be set aside and that appellant resume payment of compensation in accordance with the compensation agreement. Appellee while, in appellant's employ fell and fractured his left leg. He was 75 years old at the time, and was confined in bed at a hospital for eight weeks under the care of physicians employed by appellant. While at the hospital, he fell and broke his leg about four inches above the first fracture. When he left the hospital and was taken to his home, the splint was still on his leg, and he could not bear his weight on it. About a week after going home, while on the porch and being supported with crutches, he slipped and fractured the leg a third time. Appellant's contention is that the present disability of appellee is not the result of an accident arising out of and in the course of his employment, but that it is the result of an accident which occurred after he ceased to be an employé; that his present condition is the result of the last two fractures which it contends were caused by the willful conduct of appellee. Appellee contends that he has fully recovered from the last two fractures and that his present disability is the result of the first fracture. The evidence upon this question is conflicting, as it is on all other questions of fact before the board. The evidence does not, as appellant contends, without conflict, show that the present disability of appellee was caused by willful misconduct in refusing to obey the physician. [1, 2] Appellant contends there is no evi dence to sustain the finding and award setting aside the final receipt which it designates as the "release." But it is to be remembered that, when this receipt was signed, appellee was over 75 years of age. He was unable to move except on crutches. Appellant's representative figured the amount due him, and informed appellee that it would be necessary for him to sign the receipt before he could get the compensation then due him. When the receipt was executed, appellant was owing appellee for four weeks' compensation, which it was obligated to pay, so that pellee later filed an amended petition, which after alleging the facts relative to his injury, the entering into of the compensation agreement, and the payment of compensation to February 15, 1922, alleged that at no time since the injury had he been able to work; that when he signed the receipt heretofore referred to he did so with the belief that it was the usual receipt for compensation; that he did not know that he was signing a release and final settlement of his right to compensation; that such release was procured by fraud; and asked that appellant be ordered to continue payment of compensation under the original agreement. Appellant filed answer: (1) That the cause had been fully set-the consideration for the signing of the retled setting out the final receipt, and alleging ceipt was the payment of the amount then that total disability ended February 15, 1922; due and owing appellee. Appellee could, but (2) that appellee's then disability was due did not, read the receipt and release before solely to his willful refusal to obey the in- signing the same. This, however, is no reastructions of physicians. The cause was son why the purported release for which apthen heard by the full board which after find- pellant paid nothing should be permitted to ing the facts concerning the injury, the com- stand in the way of the payment to appellee pensation agreement, payment of compensa- of the compensation to which he is entitled. tion, and the execution of the final receipt If appellant believed its liability had ceased found that appellee was advised by appel- because of changed conditions, section 45 of lant's representative, the insurance carrier, the Workmen's Compensation Act (Laws 1915, c. 106, as amended by Laws 1919, c. 57) pro-1 3. Descent and distribution 71(4)—Burden vided a remedy. on parties asserting husband abandoned wife without just cause to prove It. [3] Appellant asks us to hold as a matter of law that appellee's failure to read the paper signed by him calls for a reversal of the award. This we cannot do. The administration of the Workmen's Compensation Act calls for a more liberal construction of the law in order to carry out its purpose than is required in an ordinary action at common law where the execution of an instrument without reading is involved. [4] There is no merit in appellant's contention that the board was without jurisdiction to grant what it calls a second hearing. This contention is based on the theory that the board when it found the pleadings were not suthcient to preserve appellee's rights, found there was no change in his condition, and that the subsequent proceedings were unauthorized. Appellant wholly misconceives the effect of the order granting the parties leave to amend their pleadings and to submit further evidence. This finding and order on its face shows that it was not a final award. It was not so intended or understood by any of the parties. It was simply an order continuing the matter for further hearing, with leave to amend the pleadings and to submit further evidence, and that is what actually took place. The award is affirmed and ordered increased 5 per cent., in accordance with section 61 of the Workmen's Compensation Act, as amended by Laws 1917, c. 63. MOREHOUSE v. KOBLE et al. (No. 11699.) (Appellate Court of Indiana, Division No. 2. Oct. 25, 1923.) 1. Descent and distribution 71(6) - Evidence held insufficient to prove husband's abandonment, causing forfeiture of his rights to wife's property. In an action to quiet title, involving the question whether a husband had forfeited his right to inherit from his wife by abandoning her, evidence held insufficient to show abandon ment. 2. Descent and distribution 63-Separation by mutual consent not an "abandonment" to cause forfeiture of husband's interest in wife's property. A separation by mutual consent is not an abandonment, within Burns' Ann. St. 1914, § 3036, providing that a husband who abandons his wife without just cause shall take no part of her estate; "abandonment" as used in the statute implying want of consent, an unwillingness on the part of the wife. In an action involving the question whether a husband had forfeited his right to inherit from his wife by abandoning her, the burden was on the parties asserting the abandonment to prove both the abandonment and want of just cause. 4. Descent and distribution 71(5)-Separation agreement properly considered to determine whether separation was by mutual consent. In an action to quiet title, involving the question whether a husband had forfeited his right to inherit from his wife by abandoning her, a separation agreement signed by the husband and his deceased wife could properly be considered with other evidence to determine whether the parties mutually agreed to separate. MCMAHAN, C. J. Appellees filed their complaint against appellant to quiet their title to certain real estate, and alleged that Maude Morehouse, who was the wife of ap pellant, died the owner of such real estate; that appellant, a short time before the death of his wife, abandoned her without just cause, and failed to make suitable provision for her, and for that reason was entitled to no part of her estate. Appellant filed a cross-complaint in which he claimed to be the owner of the whole of said real estate and asked to have his title quieted. There was a decree quieting appellant's title to a one half interest in the property, and that he had a lien on the whole of the real estate for a certain sum, because of money advanced after the death of his wife for part payment of a mortgage, tax liens, and for improvements, and quieting appellees' title to the other half of said real estate. Appellant contends that the decision of the court is not sustained by sufficient evidence. [1] Appellant and Maude Morehouse were married in 1904. Mrs. Morehouse died February 3, 1919, without issue, leaving as her only possible heirs appellant and appellees. Appellant and his wife had domestic trouble during the last year of her life. On two occasions appellant left her, remaining away about a day each time. They separated again [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Abandon-Abandonment.] (141 N.E.) January 5, 1919, at which time the real es- the real estate, $700 on the mortgage, and tate in question was owned by appellant. made permanent improvements on the house. Within a day or two after this separation On February 13, 1919, appellees ChrisMrs. Morehouse went to see a lawyer, telling topher and Catherine Koble, they being the him that she and her husband had decided father and mother of Mrs. Morehouse, exeon a separation, and that she would bring cuted a deed whereby they conveyed their her husband in to see the lawyer. January interest in the real estate to appellant. On 10, 1919, appellant and his wife went to the the day when this deed was executed appeloffice of this lawyer, and it was agreed that | lant turned part of the household goods and appellant should file a complaint for divorce; personal effects of his wife over to her parMrs. Morehouse agreeing that she would not ents. Mr. and Mrs. Koble denied the execuask for alimony or attorney fees and re- tion of this deed. Its execution was proven leasing her right to support if appellant to the satisfaction of the court, and the eviwould convey the real estate in question to dence is ample to sustain that finding. her. This agreement was reduced to writing, and it is as follows: "This agreement entered into this 10th day of January, 1919, by and between Franklin W. Morehouse, party of the first part, and Maude Morehouse, party of the second part, witnesseth: "Whereas the party of the first part is on this day applying for a divorce in the DeKalb circuit court, and whereas it is the desire of the parties hereto to settle in the event that either party should be granted a divorce, the question of alimony, and all financial and property matters between said parties; now therefore it is agreed by the parties that in consideration of deeds to the real estate known as lots 10 and 11 in block 64, Keyser's addition in the town of Garrett, Ind., in the name of Maude Morehouse, subject to a certain mortgage held by the B. & O. Railroad Company, upon said property, and in further consideration of the receipt of all household furniture and fixtures belonging to said party and now located at their home in Garrett, Ind., that said Maude Morehouse releases all her rights to alimony or other financial settlements, also her right to further support from said first party, including attorney fees, in the event of a contest in said divorce proceedings instituted by said first party. "It is further agreed that said Maude Morehouse assumes the B. & O. Railroad mortgage against said premises before described; and that said Franklin W. Morehouse agrees to pay second mortgage now upon said premises. "Franklin W. Morehouse. "Maude Morehouse." At the time this agreement was made, appellant, through a trustee, conveyed the real estate to his wife. The real estate so conveyed was all the property appellant had, and was worth from $3,000 to $4,000. Appellant was working for a railroad and had given his wife the wages he drew for December, 1918. She had been keeping roomers and boarders, and had at least one roomer and boarder after the separation, and had a small supply of provisions on hand when they separated. On the night of February 1, 1919, appellant learned that his wife was sick and went to see her that night and remained with her until she died. After her death he paid the funeral expenses, the doctor bill for her last sickness, the taxes on Section 3036, Burns' 1914, provides that: "If a husband shall abandon his wife without just cause, failing to make suitable provision for her, or for his children, if any, by her, he shall take no part of her estate." The Supreme Court, in Hill v. Taylor, 186 Ind. 680, 117 N. E. 930, in discussing this section of the statute and the necessary proof to divest a widower of that interest in his deceased wife's property which would otherwise pass to him under the law of descent, said: "The primary issue is that of abandonment and proof of that fact is essential in all cases. Under the divorce law, and under statutes governing the support of married women, abandonment has been defined to be the act of a husband or wife who leaves his or her consort willfully, without justification either in the consent or wrongful conduct of the other, and with an intention of causing a perpetual separation of the parties, * and if the separation is by mutual consent there is no desertion by either party." [2] The separation of appellant and his wife was a separation by mutual consent. What he did was with her consent, and in our judgment does not amount to an abandonment within the meaning of the statute under consideration. Abandonment as used in this statute, and as applied to the instant case, implies a want of consent, an unwillingness, on the part of the wife. Summers v. Summers, 179 Ind. 8, 100 N. E. 71; Barnett v. Barnett, 27 Ind. App. 466, 61 N. E. 737. [3] Not only must there be an abandonment in order to prevent a widower from taking an interest in the property of his deceased wife, but such abandonment must be without just cause. The burden was on appellees to prove both abandonment and want of just cause. There is not a particle of evidence in this case to show whether appellant had or did not have just cause in leaving his wife. On the 10th day of January, when the agreement was signed, and when the property was conveyed to Mrs. Morehouse, appellant's complaint for divorce was prepared and signed by him and later sent to the clerk's office for filing. No further proceed ings were had in that behalf. It may be presumed that the complaint was filed, although there is no evidence of such fact, other than that it was mailed to the clerk for that pur pose. Even if it be conceded that appellant abandoned his wife, there is no evidence that it was without just cause. [4] The legality or illegality of the contract signed by appellant and his wife is not involved in this appeal. It was proper, however, for the court to consider the contract along with other evidence, in determining whether the parties mutually agreed to a separation. Mrs. Morehouse, having died intestate and without issue, three-fourths of the real estate in question descended to her husband, and one-fourth to her father and mother. Section 3027, Burns' 1914. The father and mother having conveyed their interest to appellant, he thereby became the owner of the whole of such real estate. The decision of the court is not sustained by the evidence. Judgment reversed, with directions to sustain appellant's motion for a new trial, and for further proceedings consistent with this opinion. ANDERSON et ux. v. HITE et al. (No. 11722.) was not so irreconcilable with a general verdict for defendants as to overcome it. Appeal from Circuit Court, Starke County; W. C. Pentecost, Judge. Action by Emery H. Anderson and wife against Thomas C. Hite and another. Judgment for defendants, and plaintiffs appeal. Affirmed. Oscar B. Smith, of Knox, for appellants. REMY, J. On May 20, 1917, appellant Emery H. Anderson, husband of appellant Elizabeth Anderson, was the owner of certain real estate on which was a bona fide mortgage of $3,000; and on that day appellants made and constituted one Charles J. Anderson their attorney in fact to sell and convey Pursuant to his authority the real estate. the attorney in fact thereafter listed the land for sale with Falvey and Sweitzer, real estate agents, who later found that it would facilitate the sale of the land if the mortgage indebtedness thereon was increased to $5,000. Thereupon, on July 25, 1917, they caused the attorney in fact to execute a deed conveying the land to appellees with the understanding all around that appellees would, without consideration, and for the purpose of aiding in the sale, execute notes for $2,000, together with a mortgage on the real estate to secure the same, and would later convey the land to the purchaser who (Appellate Court of Indiana, Division No. 1. would be obtained by the agents. On Sep Nov. 2, 1923.) 1. Appeal and error 837(7)-Matters considered in determining sufficiency of answers Ito interrogatories to overcome general verdict stated. In determining the sufficiency of the jury's answers to special interrogatories to overcome the general verdict, only the general verdict, the interrogatories, and answers, and the pleadings will be considered. tember 14, 1917, the agents sold the land to William H. and Mae L. Smith, and, on that day, and in accordance with the understanding when the land was conveyed to them, appellees, without consideration, conveyed the land to the Smiths, and, concurrently with the execution of the deed, as they had agreed to do, executed two promissory notes, each calling for $1,000 payable to appellants one and three years after date, respectively; also the mortgage. The deed to the Smiths contained a provision that the conveyance was subject to a mortgage indebtedness of $5,000. The notes were executed without any consideration, and were made at the request of the agents, and with knowledge of the attorney in fact, for the sole purpose of creating the additional mortgage lien of $2,000, and thereby aiding the agents and attorney in fact in consummating the sale. The deed to appellees was never delivered 3. Bills and notes 539-Special finding held to them, but was held by the agents until not irreconcilable with general verdict. 2. Appeal and error 930 (3)-Facts found adverse to general verdict presumed overcome by other facts if such other facts might have been proved. Facts specially found and adverse to the general verdict will be presumed to have been overcome by other proved facts, if such other facts might properly have been proved under the issues. Where, to facilitate a sale of realty, disinterested parties without consideration executed notes secured by a mortgage, had the property conveyed to them, and by them to the purchaser whose deed recited incumbrances, including the notes, held in an action on such notes by the payee a finding of the jury that they constituted part of the consideration for the land the sale and transfer of the real estate to the Smiths, when it was placed of record. Appellees at no time asserted title to the real estate. This action is by appellants against appellees to enforce payment of the promissory notes. The complaint is in the usual form. Appellees' answer is in three paragraphs: (1) |