This was an action by the appellees against the appellant to recover a certain tract of land.
The appellant filed an answer containing a general denial, and two paragraphs specially setting up matters in defense.
A demurrer was sustained to the second paragraph of the answer, and the third, was rejected on motion. Trial by the Court; finding and judgment for the plaintiffs below.
Questions are attempted to be made upon the rejected paragraph; but as there was no exception taken to that ruling, and that paragraph is not made a part of the record by the bill of exceptions, the bare fact that a paragraph is inserted in the transcript by the clerk, purporting to be the one rejected, does not properly bring it before us.
The ruling of the Court in sustaining the demurrer to the second paragraph of the answer, was excepted to, and is assigned for error, but the point is expressly waived in the brief of counsel, and, therefore, does not require any further notice from us.
The appellant insists that improper evidence was admitted. A deed was given in evidence by the appellees, from a person admitted by both parties to have been the owner in fee simple of said land at the date thereof. This deed conveyed the land in controversy to one Bohanncm, to be held in trust for the wife and children of Wesley Hudson. The proof was, that the said Wesley was yet alive; that his wife and a part of his children have died since the execution of the deed; that the other children are the plaintiffs in this cause, and claim under that deed. The deed *374was legal evidence. It purported to be for the “ sole use, benefit, and behoof of the said Sarah Hudson and the children, &c. In this, and similar deeds, the legal estate is executed and vested in the person for whose use the trustee takes. Hill on Trustees, 235, and note.—McGill v. Doe, 9 Ind. R. 306.
J. S. Scobey, for the appellant. J. Ryman, for the appellees.It is urged that Wesley Hudson acquired an interest in the land, at the death of those of his children who are shown to have died, and, therefore, he ought to have been made a party. The pleadings do not raise this question in the Court below, and it cannot now be made, for the first time, in this Court. He is not a party to the record, and will not be concluded by a decision of this case, as to any right he may have in the premises.
The next point made is upon the finding of the Court, and the refusal to grant a new trial. This involves the sufficiency of the evidence to sustain the finding. The evidence given by the plaintiff is in the record; that given by the defendant is referred to as follows: “The defendant then gave in evidence the facts set forth in the second paragraph of his answer herein (which paragraph has been heretofore set out in said answer). This was all the evidence in this cause.” The evidence is not set forth in the record. This statement is a conclusion from the evidence which had been before the Court, and is not the evidence itself. It is not sufficient. We are not able to determine the question attempted to be made upon the evidence.
Per Cu/riam. — The judgment is affirmed with costs.