Bicknell, C. C.
This was a suit to enforce a trust in land held by a husband for the use of his wife, and, after her death, for the use of her two children by a former husband, they being her only heirs. The appellee was the survivor of these children, and was the sole plaintiff. The other child died, leaving issue, who were not parties to the suit.
The complaint, in each of its paragraphs,' states that, in August, 1838, the husband and wife bought the land jointly, and that one-half the land was paid for with the separate [483]*483money of the wife, and each of the paragraphs states a trust valid under section 8 of our statute of trusts, 1 E. S. 1876, p. 916; and that the husband and wife occupied the land together during their joint lives, the husband afterwards remaining in possession until he died in 1879; that during his lifetime he always acknowledged the existence of said trust, but by his will he devised the land to the defendant Sarah Eadcliff, who was his second wife, during widowhood, and if she should marry again, then to the other defendants, who were his brothers and sisters; that said Sarah is in possession of the land, and, although requested, refuses to convey to the plaintiff any part of it. The complaint prays that one-fourth of the land be decreed to be held in trust for the plaintiff; that the title thereto be vested in him; that partition be made, and that said one-fourt-h be set off to the plaintiff, and that he may have other proper relief.
Demurrers to these paragraphs for want of facts, etc., were overruled by the court. The defendants answered jointly in five paragraphs, and the defendant Sarah Eadcliff filed a cross complaint against the plaintiff. Demurrers to the cross complaint and to each of the defences except the first, which was the general denial, were overruled. The plaintiff answered the cross complaint by a general denial, and replied to each of the special defences by a general denial.
The cause was submitted to a jury for trial. After hearing the plaintiff’s evidence the defendants demurred thereto. This demurrer was overruled by the court, who found for the plaintiff, that he is entitled to one-fourth in value of the land, and to partition, and found upon the cross complaint that said Sarah Eadcliff was not entitled to have her title quieted. The defendants’ motion for a new trial was overruled, and an interlocutory judgment was rendered upon the finding, and commissioners of partition were appointed, who assigned to the plaintiff one-fourth of the land, to wit, forty acres.
The defendants’ motion to set aside the report of the commissioners was overruled.
[484]*484The defendants’ motion in arrest of judgment was overruled. Final judgment was rendered that the plaintiff should have, use and enjoy said forty acres in fee simple, and that his title thereto should be quieted, and that he should recover his costs.
The defendants appealed, assigning errors:
1. In overruling the demurrers to the complaint.
2. In overruling defendants’ motion to suppress parts of the depositions of Jane Rosell and Catherine Duncan.
3. In overruling the demurrer to the evidence.
4. In overruling the motion for a new trial.
5. In overruling the motion to set aside the commissioners’ report in partition.
6. In overruling the motion in arrest of judgment.
As to the fourth of these assignments, viz., overruling the motion for a new trial, this court held in City of Indianapolis v. Lawyer, 38 Ind. 348, that an exception to the ruling upon a demurrer to evidence sufficiently presents the question, on appeal, as to the correctness of the ruling, without a motion for a new trial, and in the same case, on page 371, the court declined to decide whether a motion for a new trial was right or not, but said, “We think, however, that no good reason was shown for the granting of a new trial, if in such a case a new trial could have been granted.” In Strough v. Gear, 48 Ind. 100, the court held that where there is a demurrer to evidence, a motion for a new trial is unauthorized, unless it relates to an assessment of damages. The court gave no authority for this ruling, but it follows necessarily from the nature of a demurrer to evidence.
Demurrer to evidence is an admission of the truth of the fact alleged by the adverse party, or an acknowledgment that the evidence produced by him at the trial of the cause is true, but a denial of its operation and effect in law, whereupon the party demurs and prays the judgment of the court; for the fact being agreed on, the judges are the proper expositors of the law and are to determine the same, and not the jury. 7 Bacon Ab., Ed. of 1860, p. 672; Co. Litt. 72. There[485]*485fore, originally, the adverse party could not be compelled to join in the demurrer unless the evidence was documentary; parol evidence was considered too uncertain; but afterwards it was held that in case of parol testimony, if the party demurring would make the facts certain by admitting the truth of the evidence and of all inferences of fact which might legitimately be made thereupon, then the adverse party would be compelled to join in the demurrer. 7 Ba. Ab. 674; Gibson v. Hunter, 2 H. Bl. 187. And such is the law now except that no formal joinder in demurrer is required. Griggs v. Seeley, 8 Ind. 264; Andrews v. Hammond, 8 Blackf. 540.
In Chapize v. Bane, 1 Bibb, 612, there was a demurrer to-the evidence, and the party demurring had excepted to the introduction of depositions over his objection. The court said: “As the defendant’s objection was improperly overruled, and the same evidence was demurred to by him, and appears material in the case, this exception, if not waived by the demurrer, would stand in the way of a judgment for the plaintiff. It séems, however, that the one party can not be permitted to rely on an exception to the admissibility of evidence, and to have a demurrer to the same evidence. By demurrer to the evidence he has supplanted his bill of exceptions. The demurrer admits the truth of the evidence, but questions its relevancy and sufficiency. The particular manner in which an admitted truth has been introduced into the cause as evidence, does not seem to be of any importance.”
In the case at bar there were three reasons alleged for a new trial: 1. That the finding and judgment were contrary to the law and the evidence. 2. That the court erred in refusing to suppress certain depositions, and in admitting certain parol testimony, and in overruling the demurrer to the evidence. 3. That the court erred in its finding and judgment.
As to this last reason it will be observed that there was no-exception to the form or substance of the judgment, and no-motion to correct it. Smith v. Tatman, 71 Ind. 171.
In Miller v. Porter, 71 Ind. 521, this court held that by de[486]*486murring to evidence the party waives all objections to its admissibility. Under these rulings the motion for a new trial in this case presents no question.
The second error assigned, relating to the suppression of depositions, is not a proper assignment of error. Buskirk Pr. 114, 224.
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Bicknell, C. C.
This was a suit to enforce a trust in land held by a husband for the use of his wife, and, after her death, for the use of her two children by a former husband, they being her only heirs. The appellee was the survivor of these children, and was the sole plaintiff. The other child died, leaving issue, who were not parties to the suit.
The complaint, in each of its paragraphs,' states that, in August, 1838, the husband and wife bought the land jointly, and that one-half the land was paid for with the separate [483]*483money of the wife, and each of the paragraphs states a trust valid under section 8 of our statute of trusts, 1 E. S. 1876, p. 916; and that the husband and wife occupied the land together during their joint lives, the husband afterwards remaining in possession until he died in 1879; that during his lifetime he always acknowledged the existence of said trust, but by his will he devised the land to the defendant Sarah Eadcliff, who was his second wife, during widowhood, and if she should marry again, then to the other defendants, who were his brothers and sisters; that said Sarah is in possession of the land, and, although requested, refuses to convey to the plaintiff any part of it. The complaint prays that one-fourth of the land be decreed to be held in trust for the plaintiff; that the title thereto be vested in him; that partition be made, and that said one-fourt-h be set off to the plaintiff, and that he may have other proper relief.
Demurrers to these paragraphs for want of facts, etc., were overruled by the court. The defendants answered jointly in five paragraphs, and the defendant Sarah Eadcliff filed a cross complaint against the plaintiff. Demurrers to the cross complaint and to each of the defences except the first, which was the general denial, were overruled. The plaintiff answered the cross complaint by a general denial, and replied to each of the special defences by a general denial.
The cause was submitted to a jury for trial. After hearing the plaintiff’s evidence the defendants demurred thereto. This demurrer was overruled by the court, who found for the plaintiff, that he is entitled to one-fourth in value of the land, and to partition, and found upon the cross complaint that said Sarah Eadcliff was not entitled to have her title quieted. The defendants’ motion for a new trial was overruled, and an interlocutory judgment was rendered upon the finding, and commissioners of partition were appointed, who assigned to the plaintiff one-fourth of the land, to wit, forty acres.
The defendants’ motion to set aside the report of the commissioners was overruled.
[484]*484The defendants’ motion in arrest of judgment was overruled. Final judgment was rendered that the plaintiff should have, use and enjoy said forty acres in fee simple, and that his title thereto should be quieted, and that he should recover his costs.
The defendants appealed, assigning errors:
1. In overruling the demurrers to the complaint.
2. In overruling defendants’ motion to suppress parts of the depositions of Jane Rosell and Catherine Duncan.
3. In overruling the demurrer to the evidence.
4. In overruling the motion for a new trial.
5. In overruling the motion to set aside the commissioners’ report in partition.
6. In overruling the motion in arrest of judgment.
As to the fourth of these assignments, viz., overruling the motion for a new trial, this court held in City of Indianapolis v. Lawyer, 38 Ind. 348, that an exception to the ruling upon a demurrer to evidence sufficiently presents the question, on appeal, as to the correctness of the ruling, without a motion for a new trial, and in the same case, on page 371, the court declined to decide whether a motion for a new trial was right or not, but said, “We think, however, that no good reason was shown for the granting of a new trial, if in such a case a new trial could have been granted.” In Strough v. Gear, 48 Ind. 100, the court held that where there is a demurrer to evidence, a motion for a new trial is unauthorized, unless it relates to an assessment of damages. The court gave no authority for this ruling, but it follows necessarily from the nature of a demurrer to evidence.
Demurrer to evidence is an admission of the truth of the fact alleged by the adverse party, or an acknowledgment that the evidence produced by him at the trial of the cause is true, but a denial of its operation and effect in law, whereupon the party demurs and prays the judgment of the court; for the fact being agreed on, the judges are the proper expositors of the law and are to determine the same, and not the jury. 7 Bacon Ab., Ed. of 1860, p. 672; Co. Litt. 72. There[485]*485fore, originally, the adverse party could not be compelled to join in the demurrer unless the evidence was documentary; parol evidence was considered too uncertain; but afterwards it was held that in case of parol testimony, if the party demurring would make the facts certain by admitting the truth of the evidence and of all inferences of fact which might legitimately be made thereupon, then the adverse party would be compelled to join in the demurrer. 7 Ba. Ab. 674; Gibson v. Hunter, 2 H. Bl. 187. And such is the law now except that no formal joinder in demurrer is required. Griggs v. Seeley, 8 Ind. 264; Andrews v. Hammond, 8 Blackf. 540.
In Chapize v. Bane, 1 Bibb, 612, there was a demurrer to-the evidence, and the party demurring had excepted to the introduction of depositions over his objection. The court said: “As the defendant’s objection was improperly overruled, and the same evidence was demurred to by him, and appears material in the case, this exception, if not waived by the demurrer, would stand in the way of a judgment for the plaintiff. It séems, however, that the one party can not be permitted to rely on an exception to the admissibility of evidence, and to have a demurrer to the same evidence. By demurrer to the evidence he has supplanted his bill of exceptions. The demurrer admits the truth of the evidence, but questions its relevancy and sufficiency. The particular manner in which an admitted truth has been introduced into the cause as evidence, does not seem to be of any importance.”
In the case at bar there were three reasons alleged for a new trial: 1. That the finding and judgment were contrary to the law and the evidence. 2. That the court erred in refusing to suppress certain depositions, and in admitting certain parol testimony, and in overruling the demurrer to the evidence. 3. That the court erred in its finding and judgment.
As to this last reason it will be observed that there was no-exception to the form or substance of the judgment, and no-motion to correct it. Smith v. Tatman, 71 Ind. 171.
In Miller v. Porter, 71 Ind. 521, this court held that by de[486]*486murring to evidence the party waives all objections to its admissibility. Under these rulings the motion for a new trial in this case presents no question.
The second error assigned, relating to the suppression of depositions, is not a proper assignment of error. Buskirk Pr. 114, 224.
As to the first error assigned, the first paragraph of the complaint states that one-half of the land was paid for with the wife’s money; that the husband took the deed in his own name without her consent.
The second paragraph states that the husband bought half of the land with his wife’s money, and took the deed in his own name, and that by agreement, without fraudulent intent, he was to hold the same in trust for her.
In each of these cases a trust arises under our statute, 1 R. S. 1876, p. 916, and was always recognized in equity before any such statute was enacted, Elliott v. Armstrong, 2 Blackf. 198; Jenison v. Graves, 2 Blackf. 440; Blair v. Bass, 4 Blackf. 539; and may exist without any writing. 2 Story Eq. Jur., section 1195. There was, therefore, no error in overruling the demurrers to the complaint. As to the third error assigned, the evidence comes up without a bill of exceptions. Baker v. Baker, 69 Ind. 399.
Did the evidence prove a trust as alleged in the complaint? Upon the demurrer to the evidence, if the existence of the trust could be reasonably inferred from the evidence, it was the duty of the court to overrule the demurrer. If a jury, upon any reasonable construction of the evidence, might have found against the defendant, the court may do so. The court, in such cases, may do all that a jury might reasonably have done. Griggs v. Seeley, supra; Thomas v. Ruddell, 66 Ind. 326.
In Pinnell v. Stringer, 59 Ind. 555, and in Eagan v. Downing, 55 Ind. 65, the rule is thus stated: “ On a demurrer to evidence, everything will be taken against the party demurring which the evidence tends to prove, including every fair inference to be drawn from the evidence.”
[487]*487In Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261 (38 Am. R. 134), this court said: “ The court, on the demurrer to the evidence, was bound to take, as true, all the facts which the evidence tended to prove, and such inferences from them as the jury might fairly have drawn, though the jury might not have drawn such inferences.”
In Lemmon v. Whitman, 75 Ind. 318 (39 Am. R. 150), the court said r “ The proof necessary to support the plea, especially upon a demurrer to the evidence, may be both equivocal and indefinite, and yet be deemed sufficient.” And see Trimble v. Pollock, 77 Ind. 576.
If a jury, upon the testimony in this ease, had found for the plaintiff, their verdict could not have been set .aside as unsupported by evidence; they might fairly have inferred from the evidence the existence of the trust as alleged in the complaint. There was, therefore, no error in overruling the •demurrer to the evidence.
The fourth specification in the assignment of errors has already been considered.
The fifth error assigned is the refusal of the court to set aside the report of the commissioners of partition. This is a proper assignment of error.
In Clark v. Stephenson, 73 Ind. 489, this court said: “ If the objection be to the report, or to the conduct of the commissioners, the proper practice is to move to set aside or to vacate the report; and, if the ruling of the court be adverse, to save the exception by a bill of exceptions, showing the motion, the grounds of objection, the proofs made, if any, and the action of the court; and, in this court, the error should he assigned directly on that action, just as upon a ruling on a demurrer.”
In this ease, although the record shows a motion to set aside the report of the commissioners, and that such motion was overruled by the court, and that the defendants at the time excepted thereto, yet there is no bill of exceptions there[488]*488upon. This assignment, therefore, presents no question. Kesler v. Myers, 41 Ind. 543; Angevine v. Ward, 66 Ind. 460.
Filed Nov. 3, 1882.
The sixth and last assignment of error is the overruling' of defendant’s motion in arrest of judgment. The reasons alleged therefor are: 1. That the complaint does not consti-
tute a cause of action. 2. That the plaintiff’s reply to the defendants’ answer does not constitute a reply to- defendants’’ answer.
It follows from what has already been said that there was no error in overruling the motion in arrest of judgment.
There is no available error in the record. The judgment ought to be affirmed.
Per" Curiam. — It is therefore ordered, on the foregoing* opinion, that the judgment of the court below be and the same is hereby in all things affirmed, at ¡the costs of the appellants..