(141 N.E.) [1,2] Appellants contend that the theory consideration, but, as we interpret each of the complaint is for the specific perform- transaction, the consideration was ample to ance of an agreement by them to convey sustain it. We are not concerned, however, one-half interest in the land involved to as to the consideration involved in the first appellee. They seem to reach this conclu- transaction. This action is to establish sion largly from the prayer of the complaint, but that the theory of a complaint is not to be determined solely from its prayer, see Montgomery v. Montgomery 140 N. E. 917 (decided at this term). It must be conceded that the theory is not made as clear as it might have been, but the trial court adopted the theory that the action was to establish a resulting trust, and we must adhere to that theory in our discussion of the questions involved. Muncie, etc., Tract. Co. v. Citizens' Gas Co., 179 Ind. 322, 100 N. E. 65. [3-5] Appellants say that the judgment appealed from was erroneous, for the reason that it was based upon an oral agreement for an interest in land, contrary to the statute of frauds. There was ample evidence to justify the court's finding that appellee furnished one-half of the purchase money for the real estate involved, and that appellant Clara J. Mills took the whole title in her own name without the consent of appellee. Such facts were sufficient to establish that such appellant was a trustee of a resulting trust in favor of appellee. Sections 4017, 4019, Burns' R. S. 1914. Such a trust does not rest upon the agreement of the parties, but is one raised by a court of equity based upon the facts attending the creation of the legal estate and the presumption that the grantee would hold the legal title in trust for the beneficial owner. 26 R. C. L. 1214. Such trusts are valid notwithstanding the acts or transactions out of which they arise are in parol, and parol evidence is admissible to establish them. 39 Cyc. 108, 156; Koehler v. Koehler, 75 Ind. App. 510, 121 N. E. 450; Marcilliat w Marcilliat, 125 Ind. 472, 25 N. E. 597. In the last case cited, the Supreme Court says: a resulting trust as growing out of the purchase of the Humston farm. There is no effort here to establish a resulting trust growing out of the first transaction, or to enforce any agreement with reference thereto. But such trust may be shown to have existed, not for the purpose of enforcing it, but for the purpose of showing that it has been executed. Sunnyside Coal Co. v. Reitz, 14 Ind. App. 478, 483, 39 N. E. 541, 43 N. E. 46; Moore v. Cottingham, 90 Ind. 239; Brown v. White, 32 Ind. App. 103, 67 N. E. 273. [8] It is appellee's contention as expressed in his complaint, and as sustained by the evidence, that the first agreement was executed by the use of one-half of the profits in the sale of the Chadwick farm in the purchase of the Humston farm. Appellants say in their points and authorities that "It was not shown what the half of the socalled profit of the sale of the Chadwick farm was." But the above statement that such farm was sold for about $132 per acre, which would make a profit of about $2,600, is taken from appellants' summary of the facts disclosed by the evidence. The half of this amount along with the two checks makes more than the required $4,000, or one-half of the purchase price subject to the mortgage. We are not furnished with the detail of expense incident to the deal, and, if we were, we would not need to set it out. It is sufficient that appellee furnished enough funds to pay one-half of the purchase price of the real estate, which is all that he claims. It is not required that appellee's contribution to the purchase price shall be in exact proportion to the interest which he claims. Koehler v. Koehler, supra. "When the whole transaction, including the [9] Appellants complain that appellant agreement, amounts to substantially nothing Clara J. Mills was not permitted to testify as more than the creation and verbal acknowledg-to her intention in purchasing the Humston ment of what in equity constitutes a resulting farm. trust, or a trust created by implication of law, It is true that the intent with which an it is not within the statute of frauds, and the act is done may sometimes be competent agreement may be proved by oral evidence. Especially is this so when to exclude the evi- evidence. Shockey v. Mills, 71 Ind. 288, 36 dence and permit the grantee to appropriate Am. Rep. 196. But in this case, the decidthe estate would result in the perpetration of ing question was as to whether appellee a fraud. McDonald v. McDonald, 24 Ind. 68; | had paid his part of the purchase money, and Cox v. Arnsmann, 76 Ind. 210. In such a as to whether appellant Clara Mills had tacase the trust results from the payment of ken the title to herself without appellee's the purchase money, or by implication or construction of law upon the whole transaction, rather than from the parol agreement, which is to be regarded as in the nature of an acknowledgment of the trust. Fitzpatrick v. Papa, 89 Ind. 17, 20; Boyer v. Libey, 88 Ind.court's ruling excluding evidence thereof. 235, and cases cited; Goldsberry v. Gentry, 92 Ind. 193." [6, 7] Appellants say that the agreements involved were simply promises without any consent, and her intention in purchasing the farm, not communicated to appellee, was not such an essential element in the transaction as to justify a reversal because of the [10, 11] Appellants next complain that appellant Clara J. Mills was not permitted to testify as to whether there was any contract or agreement with her daughter, appellee's wife, in regard to the purchase of the Humston farm. There was no offer to prove satisfaction that it is not fairly sustained by or statement as to what appellants expect- the evidence, or is clearly against the weight ed to prove; therefore no question is prethereof." sented. Bischof v. Mikels, 147 Ind. 115, 119, 46 N. E. 348. We are unable to understand. however, how any agreement that was not with the concurrence of appellee could have been competent in evidence. Appellants' objection to the bank cashier's use of copies of deposit slips to refresh his recollection on redirect examination, even if such use was objectionable, came too late. The witness had already used them without objection on direct examination, and had been crossexamined concerning them by appellants. With this rule before us, an examination of the evidence in this case as set out in appellants' brief, together with the corrections and supplements thereto as set out in appellee's brief, does not convince us that the trial court erred in its decision. Judgment affirmed. [12] Appellants challenge the decision as being contrary to law, and not sustained by sufficient evidence, because the decision awarded half of the farm to appellee, subject only to a $450 debt. It is apparent, however, that appellants have misinterpreted the court's general finding and judgment thereon. The language of the judgment. which follows substantially the general finding, is "that said undivided half so owned by the plaintiff (appellee) is subject to $900 of mortgage indebtedness now existing on said entire 80 acres." Then follows an order against appellants to execute a deed to appellee for the said undivided half of said real estate "subject to $900 of the mortgage indebtedness" (our italics). It clearly appears that by the judgment appellee must pay $900 of the mortgage indebtedness. Appellants having the burden of showing error in this regard, if any, and having failed to discuss the question further than to say that the mortgage on the entire farm was $3,200, the error, if any, is waived. [13] Finally, appellants say that the action being in equity to establish a trust, it is necessary that the proof be so clear, strong, and satisfactory that the court will have no serious doubt that a trust was intended, and that the evidence in this case was conflicting, uncertain, and doubtful on several essential points. They cite section 698, Burns' R. S. 1914, in support of their contention that this court may review the evidence. This section, being section 8 of the Acts of the Legislature, approved March 9, 1903, Acts 1903, p. 341, is set out in full, and discussed in Parkison v. Thompson, 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677, and the court in that case, after a full discussion of the provisions of the act, holds that "A reasonable interpretation of the act requires us to hold that the party who appeals and seeks to avail himself of its provisions will have the laboring oar, and the burden will rest upon him clearly to establish that the judgment below is not fairly supprted by the evidence, or that it is clearly against the weight of the testimony. The judgment will be presumed to be correct, and will not be disturbed. unless it be made to appear to our ENLOE, P. J., does not participate. CERTIA v. UNIVERSITY OF NOTRE DAME 1. Parties 1-Necessary common interest The party who sues for the benefit of others within Burns' Ann. St. 1914, § 270, must have an interest in the controversy common with those for whom he sues, and there must be that unity of interest between him and all such other parties that would entitle them to maintain the action, if the suit were brought by them jointly. 2. Parties 11-If parties have separate interests, one cannot sue for benefit of all. If the interest of various parties, in whose behalf one sues, is separate, the action cannot be brought by one for the benefit of all. 3. Cemeteries 15-Lot owner has a property right. A conveyance of a burial lot, giving plaintiff the right of burial or sepulture therein, without an interest in the fee, is a property right which the law recognizes and protects from invasion. 4. Parties 11-Complaint not showing joint cause of action in favor of all plaintiffs is demurrable. Where a party sues for himself and for others similarly situated, the complaint must show a joint cause of action in favor of all, otherwise it is demurrable. 5. Parties 11-Complaint by lot owner suing in behalf of himself and others held demurrable as not showing "common interest" within statute. In a suit by plaintiff on behalf of himself and other persons having friends and relatives buried in a certain cemetery owned by defendant, praying an injunction to prevent the burial of the dead in the walks and paths of the cemetery, and to cause the removal of bodies so buried by defendants, complaint held demurrable as not showing the common interest between plaintiff and the other owners of lots, within Burns' Ann. St. 1914, § 270, providing one party may sue for the benefit of a number when the question is one of common or general interest. (141 N.E.) Appeal from Superior Court, St. Joseph the action of the court in sustaining appelCounty. lee's demurrer to the amended complaint. Suit by Joseph P. Certia against the University of Notre Dame Du Lac, Ind., and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed. Edwin J. Bower and Isaac Kane Parks, both of Mishawaka, for appellant. Hubbard, Farabaugh & Pettengill, of South Bend, for appellees. [1] It is provided under section 270, Burns' R. S. 1914, that "Of the parties in the action, those who are united in interest must be joined as plaintiffs or defendants; *** and when the question is one of common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole." NICHOLS, J. This action was brought by In such event the party who sues must appellant against the appellees on behalf of have an interest in the controversy common himself and other persons, aggregating 100 with those for whom he sues, and there must or more, who have friends and relatives buri- be that unity of interest between him and all ed in Cedar Grove Cemetery, in St. Joseph such other parties that would entitle them county, praying an injunction to prevent the to maintain the action, if suit was brought burial of the dead in the walks and paths by them jointly. The action is, in effect, in said cemetery, and to cause the removal of brought by all the parties, and the party bodies already buried therein by the appel-named as the plaintiff stands simply as the lees, who are the owners of the cemetery, representative of himself and all of the and who have control of the burial of the others. Watson's Works' Prac. § 249. dead therein. In the amended complaint which consists of one paragraph, briefly stated, it is charged that appellee University of Notre Dame Du Lae is a corporation, and that the other appellees are its officers, and own and control a cemetery in St. Joseph county, for the burial of persons dying in the Catholic faith; that said cemetery contains approximately 12 acres of land, and is divided into about 2,172 burial lots, and designated in sections A, B, C, D, and E, which sections are bounded by driveways, and which burial lots are bounded with walks and paths on the east [2] If the interest is separate, then the action must be brought separately by each person interested, for those having a separate interest cannot join in the action. Shoemaker v. Board of Commissioners, 36 Ind. 175, 181. [3] It is true that the instrument of conveyance to appellant gave only the right of burial or sepulture in lot 31C in such cemetery, but the fact that such conveyance was not of the fee simple can make no difference. His interest in the lot was such a property right as the law recognizes and protects from invasion. Brown v. Hill, 284 Ill, 286, 119 N. E. 977; Augusta v. Bredenburg, 146 Ga. 459, 91 S. E. 486; Roanoke Cemetery Co. v. Goodwin, 101 Va. 605, 44 S. E. 769; Hertle v. Riddell, 127 Ky. 623, 106 S. W. 282, 15 L. R. A. (N. S.) 796, 128 Ann. St. Rep. 364. The last case cited states the rule to be that while the purchaser of a cemetery lot does not acquire a fee simple title thereto, he has a property right in the lot which he is entitled to protect from invasion, whether by a trespasser or the unauthorized or illegal acts of the directors of the corporation. This authority is of especial interest in that it reviews other authorities pertaining to this question, and west end of each lot, and at least one walk 8 feet wide, running east and west across the entire length of said cemetery, a distance approximately of 1,150 feet, corresponding with the adjacent section, all of which said walks connect with driveways, paths, and walks leading to and from said lots throughout said grounds; that appellant and others, on whose behalf he sues, have numerous relatives and friends buried therein in respective lots laid out, and have permits given them to bury the dead in said lots, to the number of hundreds of the dead; and that appellees were selling permits, and were burying other dead in the paths and walks surrounding these lots which obstructed the walks and paths as they were originally laid In Burke v. Wall, 29 La. Ann. 38. 29 Am. out in the cemetery, and which destroyed the Rep. 316, it was held that the purchaser of identity of the graves of the dead buried in a cemetery lot, whether he acquire an absothe lots. To the amended complaint appel- lute or qualified property therein, is entitled lees filed their separate and several demur-to the equitable remedy of injunction to prorers for want of facts, which was by the court sustained, to which ruling of the court appellant at the time excepted, and therein did abide the demurrer, and refused to plead further, and the court rendered a judgment against him. From this judgment this appeal is taken, and appellant assigns as error tect him in the full enjoyment of the lot, and that where a cemetery lot is sold with reference to a plan in which appears an avenue leading to the lot, and so affords access to and from it, that avenue becomes a servitude in favor of the lot, and cannot be closed. It will be observed, however, that each of these actions was several, and that there was | longs severally and peculiarly to the owner no attempt to join others averred to have a of the lot. Let us assume that some one of common, joint interest in the controversy. the "other persons aggregating 100 or more [4] Where a party sues for himself and for who have relatives buried in Cedar Grove others similarly situated, the complaint must Cemetery," having occupied all of the space show a joint cause of action in favor of all, in his lot with the burial of his dead, has and, if it does not, it is bad on demurrer. applied to appellees for privilege to bury in State ex rel. v. Holt, 163 Ind. 198, 71 N. E. the walk, driveway, or path contiguous to 653; Overton v. Overton, 123 Ky. 311, 96 S. such lot, the same being remote from appelW. 469; Prospect Park, etc., R. Co. v. Morey, lant's lot; that such privilege of burial in the 155 App. Div. 347, 140 N. Y. Supp. 380; Adel- walk, driveway, or path has been granted, son v. Sacred Associates' Realty Corp., 192 and that there has been a burial therein; App. Div. 601, 183 N. Y. Supp. 265; Beecher appellant has not been injured thereby, for v. Foster, 51 W. Va. 605, 42 S. E. 647; George the reason that the location is remote from v. Benjamin, 100 Wis. 622, 76 N. W. 619, 69 his own; yet by this action he seeks to repAm. St. Rep. 963; Linden Land Co. v. Mil-resent such lot owner so remotely located, waukee, etc., Co., 107 Wis. 493, 83 N. W. 851. and to whom such privilege has been grantIn this case it is apparent that appellanted, and, if he were to prevail in this action, had a several interest in the lot which was would compel appellees to cause the removal owned by him, and in which reposed his of such other person's dead from the walk, dead, and that each of the other owners of driveway, or path contiguous to his lot, much lots in the 12-acre cemetery had a several to the distress of such person whom he interest in such lot so owned by each, and seeks by this action to represent. that each had a right to protect from invasion the particular lot owned by him, as well as the right of ingress and egress thereto. But, while it may be conceded that any one of the owners of such cemetery lots had a right to protect his property from invasion, and to maintain his right of access thereto, it does not follow that he may assert such right with reference to some other lot in which he has no property interest in another section of the cemetery and remote from his own. Such right, of necessity, be [5] It stands to reason under the averments of the complaint that appellant only has interest in the walk, path, or driveway giving ingress and egress to his own lot; that the interest of appellant and of other lot owners remotely located in said cemetery is not a common interest, and that his action in which he seeks to represent them cannot be maintained. We hold that the demurrer was properly sustained. Judgment is affirmed. (141 N.E.) SLOAN V. STATE. (No. 24340.) (Supreme Court of Indiana. Nov. 16, 1923.) I. Criminal law 304 (20)—Judicial notice taken that whisky is intoxicating and that "white mule whisky" means contraband whisky. Proof that "white mule," meaning contraband, whisky found on defendant's premises was intoxicating is unnecessary to convict him of possessing such liquors for sale; the court taking judicial notice that whisky is intoxicating. 2. Intoxicating liquors 236 (62)-Proof of keeping whisky in dry beer saloon sufficient to support inference of intent to unlawfully dispose of it. Proof of the keeping of whisky in a dry beer saloon is sufficient to support an inference of intent to sell or otherwise dispose of it, in violation of Acts 1921, c. 250. hand. By the time the officers caught up with him he was pouring the contents of the glass into a sink that emptied into the sewer. One of the policemen reached the bartender when all but about one-half inch in depth of the contents of the glass had been poured out, and grabbed it from him, which contents, upon further proof, was "white mule" whisky. Upon a search of the premises, with the consent of appellant, no more whisky was found, but a new basket of empty pint botles, some of which had new corks in them, were found just outside the rear door of the building in the yard. This building had formerly for many years been used as a saloon, and at the time of the arrest was used as a dry beer saloon, with a restaurant in the rear end. Appellant had in his employ at the time three men-the bartender, a cook, and another. Appellant, testifying in his own behalf, denied that he knew that the whisky that was being poured Appeal from Criminal Court, Marion Coun- out by the bartender was in the saloon, and ty; Frank S. Roby, Special Judge. there was not now and had not been any in toxicating liquor in the saloon for sale, and Robert Sloan was convicted of keeping intoxicating liquor with intent to sell and oth-side the rear door had been picked up by his that the basket of whisky bottles found outerwise dispose of it unlawfully, and he ap peals. Affirmed. R. M. Coleman, of Indianapolis, for appellant. U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State. bartender, who had sold, but not yet deliver ed, them. [1] At the end of the evidence introduced by the state, appellant moved that he be discharged, for the reasons that the state had failed to show that the liquor found contained more than one-half of 1 per cent. of alcohol, and that there was no evidence showing possession or sale. Not only the evidence of both officers who testified for the state, but also the evidence of appellant, admitted that the liquor which was being poured out into the sink was "white mule" whisky. Under this evidence it was not necessary, in order to sustain the finding of guilty, that proof be made of the content of alcohol of the liquor taken by the officers, for the reason that the courts of this state take judicial notice that whisky is intoxicating liquor. The words "white mule," qualifying the real name of the liquor, are really an appellation meaning contraband liquor, and in no way affect the understanding of the name "whisky," which would make it necessary, in order to convict, to have further . TRAVIS, J. The appellant was charged with having unlawfully kept, and with having in his possession, intoxicating liquor with intent to sell, barter, exchange, give away, furnish, and otherwise dispose of the same, in violation of the statute. Acts 1921, p. 736. The court, trying the cause without the intervention of a jury, made a general finding of guilty, upon which a judgment of a fine and imprisonment was rendered. The errors assigned are each founded upon the insufficiency of the evidence to sustain the finding, and rely upon two propositions: For the lack of any evidence (a) that the intoxicating liquor was kept for sale; and (b) that it contained one-half of 1 per cent. of alcohol in volume, or that the liquor found was intoxicating liquor. Two police officers of the city of Indian-proof that whisky thus described is intoxicatapolis stopped and alighted from an automobile in front of the dry beer saloon owned and operated by appellant. While they were alighting from the autombile, one Nokes, who [2] The proof of the keeping of the whisky was the bartender for appellant, came to the in the dry beer saloon was in itself sufficient front door, and when the police officers start- to support an inference of the intent to sell ed for the extrance to the saloon, Nokes turn- or otherwise dispose of it unlawfully. Rose ed and ran, and the police officers ran after v. State (1908) 171 Ind. 662, 87 N. E. 103, him. When the policemen entered the door of the saloon, Nokes was behind and running toward the farther and north end of the bar, at which time he had a glass in his For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 141 N.E.-21 ing liquor. The proof that the liquor was "white mule" whisky was sufficient proof that it was intoxicating. 17 Ann. Cas. 228. It is held that the evidence is sufficient to prove that the liquor found and taken by the officers was whisky, and that it was intoxicating liquor, and that |