Mary McEnary filed a complaint against Thomas Malady in the Fountain Circuit Court, in two par*274agraphs. The first alleges that the defendant is the widower of one Ann Malady, deceased, and the step-father of plaintiff*; that the plaintiff*is the only child ancl heir at law of said Ann; that the defendant intermarried with said Ann in 1860; that at the time of the marriage Ann had and held as her own separate property money and other personal property of the value of six hundred dollars, which she held in her own right; that it was the desire and intention of said Ann to invest the money and other property so held by her in real estate; that with a view to this object, she, in September, 1864, bargained for and purchased the real estate described in the complaint; that the purchase money was paid outof herseparate property so held by her; that the defendant, being at the time her husband, took the title by conveyance in and to the said real estate in his own name, without the knowledge or consent of the said Ann; that the defendant has ever since held the title, refusing, when requested so to do, to convey the same to said Ann; that said Ann departed this life on the 10th of January, 1866, intestate; that the defendant has, since the death of said Ann, held and retained possession of the real estate, and refuses to convey the same, or any part thereof, to the plaintiff'; that said Ann, in her life time, with her own funds, purchased and placed upon said real estate a dwelling house and improvements worth three hundred dollars.
The second paragraph of the complaint is substantially •the same as the first, .with the exception that it charges that the defendant, contrary to the understanding with said Ann, “falsely, fraudulently, and corruptly procured the deed to be made and executed to him.”
The complaint concludes with a prayer for specific and general relief.
The defendant answered by the general denial. A trial was had in the Fountain Circuit Court, which resulted in a verdict for the plaintiff*. The defendant paid the costs and took a new trial, under the statute. A change of venue was awarded to the Warren Circuit Court.-
*275The defendant asked the court for leave to withdraw'his answer and demur to the complaint, which was'refused, and the defendant excepted.
Upon an affidavit filed, that Hon. John M. Cowan, the judge of the court below, was a material witness, an order was made appointing Hon. John M. LaRue, judge of the 28d common pleas district, to try the cause.
Trial by jury; finding “for the plaintiff, and that she is the owner and entitled to the possession of three-fifths of 'the real estate described in the complaint.” Motion for a new trial overruled. The evidence is in the record.
The first error complained of is the alleged insufficiency of the complaint. The objection taken to the first paragraph is, that it does not contain a prayer for relief. There is nothing in this objection. The complaint does demand the relief to which the plaintiff supposed herself entitled. This is all the code requires. 2 G. & H. 76, sec. 49, cl. 4.
It is claimed that the second paragraph is bad, because it does not show that the conveyance was -taken to the husband without the consent of the wife. The statute provides that “ when a conveyance, for a valuable consideration, is made to one person, and the consideration therefor paid by another, no use or trust shall result in favor of the latter;” but it is further provided that this provision “shall not extend to cases where the alienee shall have taken an absolute conveyance in his own name, without the consent of the person with whose money the consideration was paid.” 1 G. & H. 651, secs. 6, 8. If the husband fraudulently took the conveyance in his own name, the consideration having been paid by the wife, a trust thereby resulted in favor of the latter. This is according to the rule in equity. The statute has not changed this rule. It is unfair to presume that the legislative- intent was to promote fraud.
The complaint is sufficient, and the court committed no *276available error in refusing to allow the defendant to withdraw his answer for the purpose of demurring.
The next alleged error is, that the common pleas judge holding the circuit court, had no jurisdiction to try the case, as the title to real estate was in issue. The statute provides that when a change of venue is granted from the judge, “it shall be his duty to call some judge of the court of common pleas, circuit court, or of the supreme court, if such case be in the circuit court, to try said cause, who shall try or continue the same or change the venue thereof, as if it had originally been brought before him." 2 G. & H. 155, sec. 208. The judge, when called, holds the circuit court, and not the common pleas or the supreme court. Any other construction would deprive the court of all original jurisdiction when a judge of the supreme court is called. It is true that the common pleas court has no jurisdiction where the title to land is in issue, but the common pleas judge holding a special term of the circuit court has.
The defendant called on the plaintiff to prove a single fact, but she objected to testifying unless allowed to testify on her own behalf. The court ruled, that if the defendant was called by the plaintiff, she would be permitted to testify on her own behalf; thereupon the plaintiff* was not required by the defendant to testify on the conditions prescribed by the court. There was no error in this. “A party examined by an adverse party may testify in his own behalf in respect to any matter pertinent to the issue.” 2 G. & H. 189, sec. 300.
After the evidence and argument of counsel were closed, and while the court was instructing the jury, the defendant asked the court to require the jury to find specially in answer to interrogatories, if they found a general verdict: “1. Was all the consideration for the purchase of the property in controversy paid out of the money of the plaintiff’s mother, Ann Malady, deceased? 2. What part of the purchase money of the property in controversy, if any, *277belonged to Ann Malady, deceased, tbe mother of the plaintiff?”
The court refused to require the jury to answer the interrogatories, and the defendant excepted, and assigned this action of the court as one of the reasons for a new trial:
In Ollam v. Shaw, 27 Ind. 388, this language is used: “Indeed, without a rule of court, the statute itself requires special instructions to be delivered to the court after the evidence closes, and before the argument commences. And in the absence of a statute, or of a rule of court, it would have been a reasonable requirement, of which the appellants would have had no right to complain. It is equally important that special interrogatories propounded to a jury should be subjected to the examination of the court, and that the opposite party should have an opportunity to submit objections, and this could not be done unless a reasonable time is allowed between their delivery to the court and the retirement of the jury.”
In the case at bar, the court was asked, while chargiug the jury, to require the interrogatories to be answered. The court was called upon to stop in the midst of its charge, to consider the interrogatories offered. Such a proceeding is unheard of in practice.
, The court was asked to instruct the jury, that “verbal testimony, to be sufficient to establish a resulting trust, in a case like this, ought to be clear and strong.” This instruction was asked while the court was instructing the jury, and was not given as asked, but as follows: “A deed is a solemn instrument, and evidence to vary the effect expressed in it, and establish a resulting trust, must prove necessary facts by a clear preponderance.” There was no error in this.
The court refused to allow the defendant to testify on his own behalf about matters which occurred prior to the death of Ann Malady, the ancestor of the plaintiff, and this is one of the reasons assigned for a new trial.
By the first section of the act of March 11th, 1867, a party to a civil action may testify in his own behalf. The second *278proviso of the second section of this act is as follows:— “That in all suits by or against heirs, founded on a contract with, or demand against, the ancestor, the object of which is to obtain title to, or possession of, land or other property of such ancestor, or to reach or affect the same in any way, neither party shall be allowed to testify as a witness as to any matter which oecured prior to the death of such ancestor, unless required by the opposite party or by the court trying the cause.” Acts 1867, 226.
This'proviso differs from the third proviso of the third section of the act of March 6th, 1865 (Acts 1865, 59), in two particulars; it embraces suits by, as well as against heirs, and authorizes the court trying the cause to require either party" to testify*. Shaffer v. Richardson's Adm'r, 27 Ind. 122, is therefore not in point.
After a careful consideration of the question we have come to the conclusion that the appellant was not a competent witness on his own behalf as to matters occurring during the lifetime of Ann Malady.
The evident intent was, in suits by or against heirs, to exclude the testimony'" of the parties to the action as to any matter which occurred prior to the death of the ancestor, so as to prevent the living from testifying against the representative of the dead. Death having sealed the lips of one, the law seals the lips of the other. It may bo that the language of the proviso is not broad enough to carry out this legislative intent, but wo think it at least covers the present case. The language is not, “founded on a demand against the ancestor arising on contract,” but is, “founded on a contract with, or demand against, the ancestor.” If the plaintiff sues as heir, on a contract with the plaintiff’s ancestor, then the parties are excluded as witnesses by the letter of the proviso. If the suit is by the Heir, as such, on a demand, not against, but in favor of, plaintiff’s ancestor, not arising on contract, then it depends upon the construction to be given to the other parts of the pro*279viso as to whether the parties are competent witnesses for themselves or not.
J. McCabe, for appellant. W. P. Rhodes, Monroe M. Milford, and A. A. Rice, for appellee.» In the case at bar the appellee sues as heir of her ancestor, to enforce an implied trust growing out of the fact that the appellant took the title of the land in dispute in his own name when the purchase money was paid by the appellee’s ancestor.
This court is not agreed as to the construction to be put on this proviso, and all that is ruled in this case is, that the appellant was not a competent witness for himself as to matter occurring before the death of the plaintiff's ancestor.
Tho judgment is affirmed, with costs.