action was brought to recover for services rendered from 1887 to 1894, and after the death of John W. Purviance. There was scme evidence which tended to show that the decedent intended to pay or com pensate the appellee for the services rendered her, by making provision for appellee in her will. The court gave this instruction to the jury: "(4) An intention to pay for work and labor by one receiving the benefit of such work and labor may be shown by agreement to pay for such work and labor by bequest in will by such person so receiving the benefit of such work and labor; and, when such an agreement is shown, failure to make such bequest by the person agreeing to do so makes his estate liable for the value of such work and labor, and a claim therefor against his estate is good, and may be recovered." The appellant insists that this instruction is erroneous. But we find no substantial objection to it. It seems to come with the rule declared in Caviness v. Rushton, 101 Ind. 500, and Wallace v. Long, 105 Ind. 522, 5 N. E. Rep. 666.

The appellant also insists that instruction No. 5, given by the court at the request of the appellee, is erroneous, and had a tendency to mislead the jury. The instruction is as follows: "The family relation between persons not related to each other in any manner by blood or marriage can only exist on an agreement between such persons, express or implied, that they will live together in the family relation as members of the family. An infant under the age of 21 years cannot make such an express agreement, and such an agreement by an infant under the age of 21 years cannot be inferred where such an infant is not in any way related by blood or marriage to the person with whom such infant lives. Therefore, if you be lieve from a fair preponderance of all the evidence in this case that the said Elmina E. Purviance, deceased, kept the plaintiff living with her at her home until her death, and received her work and labor, and furnished the plaintiff with food, raiment, and shelter, and that said Elmina E. Furviance, deceased, and the plaintiff, were not in any manner related to each other by blood or marriage, then the family relation. ship is not presumed to exist between them; but it is for you to say from all the evidence in the case whether the plaintiff aed said Elmina E. Purviance, deceased, lived together in the family relation-as members of the same family." The jury, in an answer to an interrogatory found that the family relation did not exist between the appellee and the decedent during the time the services were being performed. It is evident that whether or not the family relation existed between the appellee and the decedent at the time the services were rendered was im portant, for the relation in which they stood to each other bore directly on the question of liability. It is not the law that an infant cannot make an express or special contract. Many special contracts are binding upon him, and he may enforce them, or they may be enforced against him. It is true that he may renounce his contract for services, and recover the value thereof, regardless of the contract. But, even as to such contracts, the fact that he may renounce them does not deprive him of the power of making or enforcing them. Until he chooses to renounce, they are valid. The instruction above does not relate to a contract for services. It relates to a contract for the establishing of the family relation. The jury is told that a minor cannot make an express contract for entering into the family relation. From the earliest dawn of history, the family seems to have been the unit of society; and it is now the most important

Rountree v.

factor in the fabric of our civilization. Pursell, 11 Ind. App. 522, 534, 39 N. E. Rep. 747. The home lies at the basis of our social and civil institutions. This court on another occasion, by Crumpacker, J., said: "The law recognizes the home as the most potent refining and humanizing agency known to our civilization, and its policy is to encourage the extension of its hospitalities to those, by the hand of misfortune, may have been deprived of its protection and beneficent influences." James v. Gillen, 3 Ind. App. 472, 30 N. E. Rep. 7. It is the policy of the law to secure homes for the homeless, and it fastens and encourage all contracts, no matter by whom made, which tend to accomplish this end. An infant may make a contract of marriage, which results in establishing the family relation, and it is valid. The family relation is not merely a contract. It is more than a contract; it is a status. When the status is once established, it cannot be destroyed simply by repudiating the contract that brought it into existence. To say that a homeless infant cannot sesure the benefits of a home, with its refining and elevating influences, by his express contract, is to overthrow the policy of our law. Again, the instruction under consideration is bad because it says to the jury, that, from the facts enumerated, the family relation is not presumed to exist. When the court undertakes to say to the jury that a certain presumption arises or does not arise from given facts, such presumption must be one of law. While it is true that all presumptions are, strictly speaking, presumptions of fact, yet there are certain presumptions to which the law has affixed degrees of certainty. Barr v. Railroad Co., 10 Ind. App. 433, 440, 37 N. E. Rep. 814. There is no rule of law creating a presumption or declaring that no presumption exists from the facts enumer ated. The court should have permitted the jury to draw its own inferences from the facts stated, untrammeled by the notions of the court. We think the instruction was erroneous and misleading. Judg. ment reversed, with instructions to sustain the motion for a new trial.

ARE JUDGMENTS QUASI NEGO

TIABLE.

In Freeman on Judgments it is said that the purchaser of a judgment stands in the same position as the assignee of a note past due, and that he takes subject to all equities existing between the original parties to the judgment, but free from the equities of third persons. In Black on Judgments the statement is made that "the generally recognized doctrine is that the assignee of a judgment is not affected by the latent equities of third persons, not parties to the judgment, of which he had no notice at the time of the assignment."2 Likewise in the American and English Encyclopedia of Law it is said that "the rights of the assignee are not subject to equities existing in favor of third persons of

1 Freeman on Judgments, Sec. 428. 2 Black on Judgments, Sec. 956.

holding in Bush v. Lathrop, and do not affect the general rule that, in the absence of conduct estopping him from so doing, a third person can set up equities against such an assignee. Accordingly, in subsequent cases, the court pointed out the distinction, reaffirmed Bush v. Lathrop, and set all doubts at rest. In Owen v. Evans," decided in 1892, the question is regarded as well settled, the court saying: "Our courts recognize no distinction between equities existing in favor of the mortgagor and those existing in favor of a third person, but hold that, in the absence of estoppel, an assignee of a mortgage takes only the interest of his assignor, and subject to any latent equity in favor of any person." The doctrine of latent equities has been completely overthrown in the State of its origin, and in other jurisdictions, where it has fairly come up, unaffected by questions of estoppel, the same conclusion has generally been reached.12 "It is only where the owner by his own affirmative act has conferred the apparent title and absolute ownership upon another, upon the faith of which the chose has been purchased for value, that he is precluded from asserting his real title, and this conclusion was arrived at by the application of the doctrine of estoppel."13 The general rule as to non-negotiable choses in action being settled, it remains to be seen whether judgments constitute an exception and possess a character of quasi negotiability not belonging to other choses in action. It is not perceived on what ground it can be contended that there is any difference on principle between judgments and other species of personal property in this respect. reasoning that will apply to judgments, applies equally to mortgages, certificates of stock, and chattels of every sort. There is always a certain risk in purchasing any article of personal property, or any non-negotiable chose in action. But, as many courts have said, that is no reason for making all 10 Trustees v. Wheeler, 61 N. Y. 88 and 113; Cutts v. Guild, 57 N. Y. 229; Green v. Deal, 64 N. Y. 220; Fairbanks v. Sargent, 104 N. Y. 108; Owen v. Evans, 134 N. Y. 514; Knox v. Eden Musee American Co., 148 N. Y. 441.

11 134 N. Y. 514.

Any

12 Barstow v. Savage, 64 Cal. 388; Paterson v. Rabb, 38 S. C. 138; Cowdery v. Vandenburg, 101 U. S. 572; Baker v. Wood, 157 U. S. 213; Sutherland v. Reeve, 151 Ills. 384, 38 N. E. Rep. 130.

13 Davis v. Bechstein, 69 N. Y. 440; Smith v. Clews, 114 N. Y. 190.

choses in action negotiable. That no distinction can be made between a judgment and any other non-negotiable chose in action in this respect has been expressly decided.14 In cases where this question has arisen uncomplicated with questions of estoppel, it has been laid down that the assignee of a judgment takes subject to equities of third persons as well as to those of the judgment debtor. 15 Some of these cases are cited by the text-writers, and are stated to be in conflict with the weight of authority, a statement which will be examined presently. The explanation of the view taken by the text-writers appears to be this. All of them cite in support of their text the case of Murray v. Lylburn. 16 That case has already been adverted to. It did not involve the assignment of a judgment at all, but is one of the principal sources of the general doctrine of latent equities applied to all choses in action. As has been said, it is now thoroughly discredited in its own State. The first edition of Freeman on Judgments was published in 1873, and the second in 1874-two years before the case of Trustees v. Wheeler,1 and at a time when the doubts thrown on Bush v. Lathrop by Moore v. Metropolitan Bank had not been dissipated, and the distinction as to cases involving estoppels had not been pointed out. The statement in his text and the citation of Murray v. Lylburn were, therefore, natural at that time. In his last edition, Mr. Freeman has copied verbatim the statement in the former editions of his work, and has continued to cite Murray v. Lylburn in support of his text without adverting to the fact that that case did not involve the assignment of a judgment and that the general principle it lays down as to all choses in action has been overthrown. As frequently happens, subsequent writers have adopted his statement without question. If there were much doubt of this, there is sufficient proof at hand. In the earlier editions of Freeman, the name of the defendant in Murray v. Lylburn is misspelled "Lilburn."

14 Cutts v. Guild, 57 N. Y. 229, 233.

15 Cutts v. Guild, 57 N. Y. 229; Downer v. South Royalton Bank, 39 Vt. 25; De La Vergne v. Evertsen, 1 Paige, Ch. 181; Thompson v. Jones, 56 Hun, 268; Cox v. Palmer, 60 Miss. 793; Mitchell v. Hockett, 25 Cal. 538; Clarke v. Hogeman, 13 W. Va. 718; Barhorst v. Armstrong, 42 Fed. Rep. 2.

16 2 Johns. Ch. 441. 17 61 N. Y. 88 (1876).

Not only is this misspelling retained in the last edition, but the same citation and the same misspelling are to be found in Black and in the American and English Encyclopedia of Law. It is pretty clear from that circumstance that the latter did not indulge in much independent investigation of the matter. They adopted Freeman's statement and his citations, and added a few later ones to bring their notes down to date. Bearing in mind the decisions establishing the effect of the doctrine of estoppel in this connection, a review of the cases cited in the text books will show that the cases there claimed to be in conflict with the weight of authority are in reality in perfect accord with the great majority of the decisions cited, and that there is no authority for the conclusion that judgments are an exception to the general rule governing all non-negotiable choses in action. The cases cited by the text writers are almost without exception typical cases of estoppel. A few are mere dicta, and these, as well as the one case cited which did not involve an estoppel, proceed expressly upon the general doctrine of latent equities, as applied to all choses in action-in several cases in jurisdictions where that doctrine has since been overthrown. For convenience, the cases will be taken up in the order in which they are cited in Black on Judgments.18 Wright v. Levy, 19 is a mere dictum as far as the point in question is concerned, as the court found on rehearing that its reasoning as to third parties did not apply. What is said, proceeds upon the general doctrine of latent equities. California now holds otherwise both as to judgments and as to choses in action generally, as shown by cases already cited. 20 McCotter v. McCotter,21 could have been decided on the ground of estoppel. In that case a partner knowingly permitted his copartner to take judgment in his own name upon a partnership claim. This was clearly sufficient to estop him from setting up his rights against an assignee for value. The court, however, decided on the general doctrine of latent equities, which is no longer held in that State even as to judgments.22

18 Black on Judgments, Sec. 956.

19 12 Cal. 257.

20 See notes 12 and 15.

21 16 Abb. Pr. 265.

22 Thompson v. Jones, 56 Hun, 268.

Hale v. First National Bank,23 does not involve or decide this question. In that a case a party who had a contract to purchase a judgment sought to incumber it with further contracts while in default under his own. The court point out that he was at no time owner of the judgment and would not be until he complied with his contract. In other words, those claiming under him had no equity in the judgment, "latent" or otherwise. Starr v. Haskins, 24 is the one case cited which supports the statement of the text in its entirety and which has not been expressly or substantially overruled. It should be noted, however, that the decision is expressly based on the general doctrine of latent equities, and that no claim is made that there is anything peculiar to the law of judgments in this respect. Murray v. Lylburn has already been considered. Hendrickson's Appeal, 25 is a case which comes squarely within the distinction made by the later authorities in New York. A mortgage and a judgment having become liens on land on the same day, an agreement was entered into between the mortgagee and the judgment creditor that the mortgage should have precedence. The mortgagee kept the agreement off of the record, and afterwards sought to obtain priority over an assignee of the judgment. As he kept the agreement off of the record and thus by his own act left the apparent lien in the judgment creditor, this was a clear case of estoppel. And the court point this out. What is said in Green v. Dailey,2 as to equities of third persons is said casually arguendo. There is no decision on the point. This dictum was before Bush v. Lathrop27 had overruled the prior decisions as to equities of third persons. Garland v. Harrison," is a typical case of estoppel, expressly decided upon that ground. The court say: "Garland by his own act put it into the power of Crow to show himself the purchaser and owner; he must then be bound by Crow's acts in this matter. He gave Crow authority to do the deed, and when done, Garland will not be permitted to set it aside against an innocent purchaser without notice.' Ives v.

23 50 Ia. 642.

24 26 N. J. Eq. 414. 25 24 Pa. St. 363.

26 2 Mason, 214.

27 22 N. Y. 355.

28 17 Mo. 282.

26