missing. There was also evidence tending to show that the fence around the cattle pen was too low, although a new fence. Appellees sent two men after the escaped cattle, and also sent another to tell the agent to hold the train until they could be brought back and put into the car. Before this person returned, and before the escaped animals had been brought back, the train left, without taking the car into which appellees were loading their cattle. It is shown by the testimony of appellees' witnesses also that the train waited from 20 to 30 minutes after the cattle escaped. There is no evidence that appellees requested that the car, with the 15 cattle, should be forwarded by that train, nor that appellant's servants declined or refused to so forward it. On the other hand, it is apparent that appellees did not demand that it should be so forwarded, from the fact that their idea was to hold the train until the escaped cattle should also be in the car. The testimony of appellant's witnesses is that the train was held 40 minutes, in order that appellees might get their cattle loaded.

From this summary of the evidence, it is very plain that appellant did not refuse to receive and carry the cattle, in the sense in which a refusal is alleged in the complaint. Indeed, there is no evidence of any refusal, either to accept or to carry. The providing of the car and the holding of the train showed a willingness both to receive and carry the cattle. The evidence shows no wrong on the part of the railway company, unless it be a failure to construct and keep in repair a proper fence around the cattle pen, and a failure to keep the chute in proper repair. We express no opinion as to the weight of the evidence upon these points, nor as to whether or not appellees suffered any loss by reason of the chute being out of repair. It is sufficient to say that the case made by the evidence is not the case made in the complaint, and that for that reason the judgment must be reversed.

A refusal to receive and to carry the cattle cannot be predicated upon the fact that the train was not held for a longer time. The ways and means for loading being in proper condition, and the duty of loading being upon the shipper, it is his duty to have the car loaded so that the train which is to move it may not be unreasonably delayed. Trains are, and of necessity must be, run upon schedule time. The transportation of freight, the security of the trains, and the safety of passengers require this. Frazier v. Kansas City, St. J. & C. B. Ry. Co., 48 Iowa, 571. In that case it was said:

"A delay of a few minutes at one station might occasion a corresponding delay of every train on the line of the road, and even result in accidents destructive of property and life. No person desiring to become a passenger upon a train could rightfully demand a delay of one minute to enable him to reach the train and get on board. Upon what principle, then, can these plaintiffs demand damages because defendant's train did not wait until they could drive their hogs into defendant's yards, load four cars, count them, have way-bills made out, shipping contracts signed, and the cars placed in the train?"

If appellant was guilty of any actionable wrong in relation to the cattle pen and the chute, which occasioned loss to appellees without their fault, which we do not decide, that is the wrong for which they should respond

in damages. That, however, is not the wrong charged in the complaint. The conclusion we have reached makes it unnecessary for us to consider other questions discussed by counsel.

The judgment is reversed, with costs, and the cause remanded, with instructions to the court below to sustain appellant's motion for a new trial, and to grant leave to appellees to amend their complaint, if they so desire.

(104 Ind. 596)

HADLOCK and others v. Gray.

Filed January 9, 1886.

1. ESTATES-TENANTS IN ENTIRETY-WHAT WILL CREATE A LIFE-ESTATE IN HUSBAND AND WIFE.

Where a deed is made to husband and wife, without limiting words, they will take as tenants in entirety, but their estate may, by appropriate words, be limited to a life-estate; and words clearly expressing an intention to create an estate for their joint lives, and providing that after the termination of such life-estate the land shall be divided among the heirs of the husband and the heirs of the wife, will create a life-estate in the husband and wife. 2. SAME-RULE IN SHELLEY'S CASE..

Where a deed conveys to I. C. and M. C., and provides that "after the decease of said I. C. and M. C. the said property to be equally divided between the heirs of I. C. and the heirs of M. C.; if the said I. C. shall die before his wife, she is to hold the property until her death; and, provided M. C. shall die first, then I. C. is to hold said property until his death; and at the death of both it is to be divided as above stated, "-it does not vest in the first takers an estate in fee, under the rule in Shelley's Case; but the word "heirs," as used in such a deed, means heirs apparent, and does not designate those persons who are to take in indefinite succession.

Appeal from Fulton circuit court.

Essick & Montgomery, for appellants.

S. Keith and J. S. Slick, for appellee.

ELLIOTT, J. The appellee alleges in his complaint that he is the owner of the real estate therein described, and that his title rests upon a deed executed to him in January, 1878, by Isaac Cannon who has since died; that Isaac Cannon's title was founded upon a deed executed to him and his wife, Mary Cannon, by Charles Jackson and wife on the twentieth day of April, 1876; that this deed, omitting the formal parts, reads thus: "This indenture witnesseth that Charles Jackson and Catherine Jackson, his wife, of Fulton county, in the state of Indiana, convey and warrant to Isaac Cannon and Mary Cannon, for the sum of $1,200, the following real estate in Fulton county, Indiana, to-wit: Lot number one hundred and eighty-two, as designated on the plat of Shryock and Bozarth's addition to the town of Rochester, with all the appurtenances thereunto belonging,-the said Isaac Cannon to pay all taxes thereon from the day of sale. After the decease of said Isaac Cannon and Mary Cannon, the said property to be equally divided between the heirs of said Isaac Cannon and the heirs of Mary Cannon. If said Isaac Cannon shall die before his wife, she is to hold the said property until her death; and, provided Mary Cannon shall die first, then Isaac Cannon is to hold said property until his death, and, at the death of both, it is to be divided as above stated."

It is also alleged that both Isaac and Mary Cannon are dead; that the deed of the former was made after the death of his wife; that the appel

lants are the children and grandchildren of Isaac and Mary Cannon; that they claim title to the real estate; that they have, in fact, no title; and that the appellee is entitled to a decree quieting his title. The prayer is that appellee's title be quieted, and that the appellants be decreed to have no interest in the real estate.

The controlling question in the case turns upon the effect to be given the deed executed to Isaac and Mary Cannon. If that deed vested a fee in them as tenants in entirety, then the judgment below was right; if it vested in them a life-estate for the lives of both, then the judgment is wrong. Our opinion is that the deed vested in them a life-estate and nothing more. It is true that where real property is conveyed to husband and wife jointly, and there are no limiting words in the deed, they will take the estate as tenants in entirety. Davis v. Clark, 26 Ind. 424; Dodge v. Kinzie, 101 Ind. 102, vide authorities cited page 105.

But, while the general rule is as we have stated it, there may be conditions, limitations, and stipulations in the deed conveying the property which will defeat the operation of the rule. The denial of this proposition involves the affirmation of the proposition that a grantor is powerless to limit or define the estate which he grants, and this would conflict with the fundamental principle that a grantor may, for himself, determine what estate he will grant. To deny this right would be to deny to parties the right to make their own contracts. It seems quite clear, upon principle, that a grantor and his grantees may limit and define the estate granted by the one and accepted by the others, although the grantees may be husband and wife. Washburne says, in speaking of conveyances to husband and wife, that "it is always competent to make husband and wife tenants in common, by proper words, in the deed or devise which they take, indicating such intention." 1 Wash. Real Prop. 674. Another author says: "And, furthermore, if at any time a joint tenancy or tenancy in common is desired to be created between man and wife, a joint estate will be treated as such, if that intention is clearly expressed in the deed or will." Fred. Real Prop. § 244. The principle which we have asserted is thus declared by an author whose work for more than half a century has been regarded as authority: "In point of fact, and agreeable to natural reason, the husband and wife are distinct and individual persons; and, accordingly, when lands are granted to them as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties, as other distinct and individual persons would do.", 1 Prest. Estate, 132.

The language employed in the deed under examination plainly declares that Isaac and Mary Cannon are not to take as tenants in entirety. This result would follow from the provision destroying the survivorship, for this is the grand and essential characteristic of such a tenancy. Our conclusion need not, however, be placed on this ground, for the whole force of the language employed is opposed to the theory that the deed creates an estate in fee in the husband and wife. The deed does not contain the language essential to vest in the first taker an estate in fee under the rule in Shelley's Case. There are no words in the deed con

veying to Isaac and Mary Cannon, and their heirs, the estate. On the contrary, the conveyance is to them for their joint lives, with the provision that upon the termination of the life-estate the land shall be divided among their heirs. When the word "heirs" is used as it is in this instance, it does not designate those who shall take in indefinite succession, but it designates persons who shall take the remainder as soon as the life-estate ends. When that word is employed in the sense in which it is here used, it means "heirs apparent" and not "heirs." We have in recent cases given this question careful consideration, and we do not deem it necessary to again discuss it. Fountain Coal Co. v. Beckleheimer, 103 Ind. 76; S. C. 1 N. E. Rep. 202; Shimer v. Mann, 99 Ind. 190, vide auth. page 193. There is no reason why the clearly-expressed intention of the parties to the deed should not prevail, for neither the rule in Shelley's Case, nor any other rule of law, opposes the way of the court to a natural and reasonable construction of the deed; and surely no one who reads the deed can doubt that it was intended to vest a life-estate and not a fee in Isaac Cannon and his wife. What we have said disposes of the whole case; for it is impossible that a valid judgment can rest on a complaint utterly and irreclaimably bad.

Judgment reversed, with instructions to sustain the demurrer to the complaint, and to proceed in accordance with this opinion.

(04 Ind. 583)

CRUME v. WILSON and others.

Filed January 9, 1886.

1. DRAINAGE-PRACTICE-CIVIL CODE APPLICABLE-DISMISSAL.

The provisions of the Civil Code may supply omissions in the drainage statute; and, under section 333, Rev. St. 1881, the petitioner in a drainage case may dismiss proceedings if his motion to do so be made at the proper time.

2. SAME WITHIN WHAT TIME PETITION MAY BE WITHDRAWN.

It is too late to claim a right to dismiss such proceeding, and withdraw the petition, after the statutory period of 10 days has elapsed, and when the cause is ready for final order and judgment.

Appeal from Howard circuit court.

Blacklidge & Blacklidge and Bell & Purdum, for appellant.

Elliott & Kirkpatrick, for appellees.

Howk, J. In this case the appellant, Crume, presented to the court below his verified petition praying for the location and construction of a certain ditch or drain. Proof having been made to the satisfaction of the court that notice of the intention to present such petition had been given in the manner and for the time required by the statute, the court assumed jurisdiction of the case, and ordered the same to be docketed as an action pending therein. Three days afterwards, no demurrer or objection to nor remonstrance against such petition having been filed, the court made an order referring the same to the commissioners of drainage. On the fifteenth day of December, 1884, the commissioners filed, in open

court, their report of assessments of benefits and damages to the lands affected by the construction of such drain; and 10 days were then given any owner of lands affected by such work to remonstrate against the report of such commissioners. No further step was taken in the cause, so far as the record shows, until the seventeenth day of January, 1885, or 33 days after the filing of the report of the commissioners of drainage. On the day last named the appellant moved the court in writing "for leave to withdraw his petition in the above cause, and to dismiss the same at his costs." On the same day the appellee Wilson, whose lands were assessed for benefits in the construction of such drain, appeared and objected in writing to the dismissal of appellant's petition. The court sustained appellee's objection, and overruled appellant's motion, and approved and confirmed the report of the commissioners of drainage, and the assessments of benefits and damages mentioned therein. Finally the court ordered that the construction of such drain be referred to Tence Lindley, one of the commissioners of drainage.

Errors are assigned here which call in question the rulings of the circuit court (1) sustaining the objections of appellee Wilson to appellant's dismissal of the cause; (2) in overruling appellant's motion for leave to dismiss the case; and (3) in approving and confirming the report of the drainage commissioners, and ordering the construction of the drain. Under these alleged errors the question for our decision, and the only one discussed by counsel on either side, may be thus stated: At the time the appellant moved the court for leave to dismiss the cause was he entitled to such dismissal as a matter of legal right?

When this suit was instituted, and during its pendency in the circuit court, the amended drainage law of March 8, 1883, (Acts 1883, p. 173 et seq.,) and sections 4273-4281, 4283, Rev. St. 1881, were in force and governed the case. Some of the provisions of section 3 of the amended act of March 8, 1883, we think are applicable to the question we are considering, and these we quote, as follows: "Upon the making of such report to the court, ten days shall be allowed to any owner of lands affected by the work proposed to remonstrate against the report, and any such remonstrance shall be verified by affidavit, and may be for any or all of the following causes;" specifying nine different causes. We quote again: "If the finding be in support of the remonstrance on the seventh or eighth causes, above enumerated, the proceedings shall be dismissed.” We quote further from the same section: "If there be no remonstrance, * the court shall make an order declaring the proposed work established, and approving the assessments, and shall direct some one of the commissioners to construct and make the proposed work."

**

There is no provision of our drainage statutes which authorizes the petitioner for a drain to dismiss his cause at any time, of his own motion. Appellant's counsel concede this, but they say, and correctly so we think, that "some at least of the provisions of the Code are applicable to drainage proceedings." Neff v. Reed, 98 Ind. 341. Counsel cite and rely upon the first clause of section 333, Rev. St. 1881, which provides that a plaintiff may dismiss his suit, without prejudice, before the jury retires;