548 DOWLING, C. J. This case was transferred to this court by the order of the appellate court. The suit is for the recovery of a part of the consideration for the conveyance of a tract of land, and is prosecuted by the heirs at law of the deceased payee against the grantee named in the deed. A demurrer to the complaint was sustained, and judgment followed. The error assigned calls in question the ruling on the demurrer.

The facts stated in the complaint are these: December 2, 1885, Henry Weirick and his wife, Elizabeth, executed to the appellee, William H. Weirick, a deed of general warranty for eighty acres of land, situated in Kosciusko county, 549 Indiana, reserving to the grantors an estate for the life of each, in said lands; the consideration expressed in the deed was one dollar, and that the grantee should pay to Ora F. Haines, the grandson of the grantor, five hundred dollars, without interest until it should become due, when the said Ora F. should arrive at the age of twenty-one years, a lien to secure such payment being retained in the deed. The grantee accepted the deed, and caused it to be placed upon record. One of the grantors, Henry Weirick, died September 18, 1887, and the said Ora F. Haines died February 25, 1891, not having arrived at the age of twenty-one years. The latter left surviving him as his sole heirs at law his father, Robert Haines, and the other appellants herein, who were his half-brothers and sisters. It is averred that all the debts of the said Ora F. have been paid, and that no administration on his estate is necessary; that the said Ora F., had he lived, would have become twenty-one years old August 16, 1897; that said sum of five hundred dollars is now due and payable to the appellants, as the heirs of the said Ora F., and that the appellee, although requested, refuses to pay the same. Prayer for judgment for the five hundred dollars, with interest from August 16, 1897, and for the foreclosure of the lien reserved in the deed.

It is contended on behalf of the appellee that the reservation of the life estate "with the absolute control of the said real estate, the same as if this conveyance had not been made, for and during the period of the natural life of the grantors, and of each of them," is inconsistent with the grant contained in the instrument, and operates to defeat it. We think otherwise. The deed conveys a fee to the grantee, subject to a life estate in the grantors. During the existence of the life estate, the grantors could, consistently with the grant of a remainder

in fee, continue to exercise absolute control over the land to the same extent as if the deed had not been made. Such control, so reserved in the deed, related to the use, enjoyment, and management of the 550 land, and cannot be understood to authorize the life tenants to impair or destroy the title of the grantee and remainderman by another conveyance. Besides, if it were true that the reservation contained in the deed was inconsistent with the estate thereby granted, such reservation would probably be void: 5 Am. & Eng. Ency. of Law, 1st ed., 456; 1 Sheppard's Touchstone, 79.

It is next argued that the five hundred dollars was payable to Ora F. on the condition that he should live until he became twenty-one years old, and that the contingency on which it was to become due and payable having failed by his death, the grantee is not liable to pay it at all. Cravens v. Eagle Cotton Mills, 120 Ind. 6, 16 Am. St. Rep. 298, 21 N. E. 981, Olds Wagon Works v. Coombs, 124 Ind. 62, 24 N. E. 589, Henry v. Thomas, 118 Ind. 23, 20 N. E. 519, 2 Randolph on Commercial Paper, sec. 113, p. 153, Marsh v. Wheeler, 2 Edw. Ch. 156, Harris v. Fly, 7 Paige, 421, Delavergne v. Dean, 45 How. Pr. 206, Knight v. Pottgeiser, 176 Ill. 368, 52 N. E. 934, Scofield v. Olcctt, 120 Ill. 362, 11 N. E. 351, Carper v. Crowl, 149 Ill. 465, 36 N. E. 1040, and Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310, are cited in support of this view.

The case is governed by the rules stated in Goss v. Nelson, 1 Burr. 226. In that case, the question depended entirely upon the validity of a promissory note given to an infant payable "when he [the infant] shall come of age," and specifying the time when that was to be, viz., the 12th of June, 1750. It was insisted on behalf of the defendant that the notes set forth in the declaration were not notes for the benefit of trade, nor was the money made certainly payable. The note was given to the plaintiff thirteen years before the time when he was to come of age, and it was not at all certain that he would live to attain that age. In order to have the effect of a promissory note within the statute, it ought to be a cash note and payable at all events. In deciding the case, Lord Mansfield said: "It would have been clearly good, if it had been made payable on the 12th of 551 June, 1750 (that is to say, on a day certain), without mentioning the plaintiff's being then to come of age; and surely it is not the less certain for adding that circumstance. Legacies are of a different nature, and they are determined by different rules. They are directions to the executor to pay;

and in legacies there is a known distinction between the time being annexed to the substance of the gift, or to the payment. If complete words of gift direct the executor to pay, the other words only fix the time of such payment; and then the legacy vests, and is transmissible, though the legatee should die before the day of payment, as a legacy given, 'to be paid at twentyone.' But if the time is annexed to the substance of the gift, as a legacy if,' or 'when,' he shall attain twenty-one, it will not vest before that contingency happens. But here the words of engagement make the debt, and 'tis no direction to another person. The former part of the note is a promise to pay the money, and the rest is only fixing the particular time when it is to be paid. It is enough if it be certainly and at all events payable at that time, whether he lives till then, or dies in the interim. Therefore, it is a good note, within this remedial statute."

Denison J., concurring, said: "Here is no condition or uncertainty, but it is to be paid certainly, and at all events; only the time of payment is postponed."

Foster, J., concurring, said: "A legacy may be given upon any terms. But upon a promissory note, the time of payment is only for the benefit of the debtor. Here, the time of payment is certainly fixed; and the particular day specified for payment of the money being mentioned to be the day on which the infant is to come of age makes no difference from what it would have been if that circumstance had been omitted."

"And they all agreed that that this was debitum in praesenti, though solvendum in futuro."

The consideration for the conveyance of the land was the 552 payment of the five hundred dollars by appellee. The grantor had the right to say to whom that consideration should be paid. Acceptance of the deed by the grantee created a debt in praesenti, and rendered him liable to pay the five hundred dollars agreeably to the terms of the instrument: Leach v. Rains, 149 Ind. 152, 48 N. E. 858.

The postponement of the time of payment was not conditional on Ora F. attaining the age of twenty-one years, but was to be made whether Ora F. lived or died. The date at which Ora F. would become of age simply fixed the limit of the credit. The time when the five hundred dollars would become due was as certainly stated and as definitely ascertained as if August 16, 1897, had been inserted. Unless the appellee is liable to pay that sum to the heirs of Ora F., he will get the

land for nothing. It cannot be said that the grantor contemplated such a result.

Judgment reversed, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.

DEED.-A CHILD ACQUIRES A VESTED REMAINDER under a deed from his father reserving the use of the premises for the lives of the grantor and his wife, and such remainder is not defeated by a subsequent recovery in a writ of right by a third person against the father, to which the child is not a party: Brewer v. Hardy, 22 Pick. 376, 33 Am. Dec. 747. See, further, Cribb v. Rogers, 12 S. C. 564, 32 Am. Rep. 511; Graves v. Atwood, 52 Conn. 512, 52 Am. Rep. 610.

MacMURRAY v. SIDWELL.

[155 Ind. 560, 58 N. E. 722.]

BUILDING AND LOAN ASSOCIATIONS-INSOLVENCYDIVISION OF ASSETS.-The assets of a building and loan association are the common property of all the stockholders, and the claims upon it are the demands of all the stockholders for a distribution, and where the profits of the association would have been divided in proportion to the investment of the stockholders, the losses, upon insolvency, should be borne by the same persons and in the same proportions.

BUILDING AND LOAN ASSOCIATION-FOREIGN-INSOLVENCY-PREFERENCE OF STOCKHOLDERS.-Where a foreign building and loan association while doing business in a state fully complies with its laws, and upon a change of the law ceases to do business other than to collect dues on stock, and interest and premiums on loans, already in existence, if the association therearter becomes insolvent, the stockholders in such state have no preferential claim upon the assets found there, since all the stockholders have a common interest in the funds of the association wherever located.

CONTRACTS-VALIDITY-CHANGE OF LAW.-If a contract, which contemplates the lapse of several years before all of its terms are carried out, is valid when executed, it must be held to remain valid and enforceable to the end, no matter what changes the law may undergo in the lifetime of the contract.

James Bingham and Jesse Long, for the appellants.

G. H. Koons, H. F. Wilkie, and Henrietta Wilkie, for the appellee.

560 BAKER, J. On May 14, 1898, in a suit begun in the Delaware circuit court by Charles and Eudora Ticknor against

the National Home, Building, and Loan Association, organized and existing under the laws of Illinois and having its home office at Bloomington, Illinois, the association was found to be insolvent and appellant Francis James was appointed receiver of its assets in Indiana. On May 19, 1898, in a suit pending in the circuit court of the United States for the southern district of Illinois, the association was found to be insolvent, and appellant James E. MacMurray was appointed receiver of all its assets save those in Indiana. Thereafter and during May, 1898, Mr. MacMurray was appointed ancillary receiver by the circuit courts of the United States for the various districts in which the association had done business. On October 16, 561 1899, appellee, Andes M. Sidwell, a stockholder of the association who resides in this state, on behalf of himself and all other Indiana stockholders, filed a petition in the receivership case pending in the Delaware circuit court, asking the court to order Mr. James to pay the Indiana stockholders in full from the Indiana assets and pay the balance only to Mr. MacMurray. Thereupon Mr. MacMurray obtained an order from the circuit court of the United States for the southern district of Illinois, directing him to intervene in the cause in the Delaware circuit court. By leave of the Delaware circuit court Mr. MacMurray and Mr. James, as receivers, filed an intervening petition, asking, among other things, that the Indiana assets be added to the other assets and that the whole be distributed equally among all the stockholders in proportion to their payments on stock. Mr. Sidwell, on behalf of himself and all other Indiana stockholders, was permitted to file a demurrer to the receivers' petition for want of facts. The court sustained the demurrer, and, on the receivers' refusal to plead further, entered judgment that they take nothing by their petition. The court granted the receivers' prayer for an appeal to this court.

The material facts in the petition are these: The association was organized in February, 1890, under the statutes of Illinois. The statutes, the association's charter, and its by-laws are set forth. The charter and by-laws are similar in scope to those of associations organized in this state. The statutes, in spirit, are the same as Indiana's. The association was formed to do a "building and loan" business, which, as Endlich says, "in its essential plan and nature is the same all over the world." It transacted business in various states until the appointment of the receivers. There are no general creditors. The claimants