Simons et al. v. Simons, Trustee. cript shall be filed in the Supreme Court within thirty days after filing the bond." This section is an amendment to section 2455, supra, the only change being that section 2455, as originally enacted, required that the transcript be filed within ten days after filing the bond. That section has been several times construed by this court as allowing twenty days within which to perfect the appeal. Yearley v. Sharp, 96 Ind. 469; McCurdy v. Love, 97 Ind. 62; Browning v. McCracken, 97 Ind. 279; Miller v. Carmichael, 98 Ind. 236. Applying the same rule to section 417 will allow forty days within which to perfect appeals-ten days within which to file the bond and thirty days thereafter within which to file the transcript in this court. The fact that the appellant files his bond within the ten days will not limit the time for filing the transcript. The law gives the same time to both parties to appeal. An administrator or executor is not required to file a bond, yet he may take the full forty days for perfecting an appeal, and the opposite party is entitled to the same time. The law is intended to be equal in its operation, and to apply alike to the parties on both sides of the controversy. If the administrator or executor, who files no bond, may perfect his appeal at any time within forty days (about which there seems to be no doubt), there is no good reason why the opposite party should not have the same right. The appeal was therefore perfected in time. The controversy is over a report filed by a trustee-the appellants having filed exceptions to it. The brief filed contains a statement of certain facts alleged to be shown by the report, together with something by way of argument, claiming to show an abuse of the trust and mismanagement of the trust property. While not such an argument as should be addressed to the court in a case of so much apparent importance, it can not be said that it is not a brief, and at least a partial compliance. with the rule. Scott et al. v. Michael et al. Illness of counsel is shown as an excuse for not filing a more elaborate brief. Motion to dismiss overruled. Filed Oct. 14, 1891. No. 15,072. SCOTT ET AL. v. MICHAEL ET AL. DEED.-How Construed.—Exception in Favor of Grantee.—Doubtful Language. -Where the language of a deed will admit of two constructions, the one less favorable to the grantor is to be adopted. An exception in a deed is to be taken most favorable for the grantee. If the language of a conveyance is doubtful, it must be construed so as to ascertain, if possible, the intention of the parties. SAME. What Passes Under it.-In a conveyance of property, everything essential to the enjoyment of the property is to be considered, in the absence of language indicating a different intention on the part of the grantor, as passing with it, either as a parcel thereof or appurtenant thereto. SAME.-Mil Property.-Conveyance of. What it Includes.-Maintenance of Dam. The conveyance of mill property carries with it, whether the word "appurtenances" be used or not, all the incidents and privileges connected with its use, and this includes the right to maintain a dam, so as to produce a head, or power, equal to that which existed at the time the conveyance was executed. SAME.-Right to Maintain Dam.-Deprivation of Right.-Compensation for Loss.-The right to maintain a dam at the height it exists at the time of a conveyance of mill property, is of itself property, and a part of the thing sold, and the covenants of the deed extend to and cover the right to maintain the dam at such height, as an incident of the estate and necessary to its enjoyment, and if the grantee is deprived of such right because the grantor had not the right to maintain it at the height covenanted, he is entitled to compensation for such loss. SAME.-Right of Flowage.-Reference to Mortgage.-Effect of.-Where a deed purported to convey certain mill property, with all its privileges and appurtenances, and then referred to a certain mortgage in which the right of flowage was greatly restricted, the provision in the mortgage can not be regarded as placing a limitation upon the rights and privileges granted. It would require clear and explicit words of limitation Scott et al. v. Michael et al. to cut down the express and implied grant of the right of flowage as it existed at the date of the execution of the conveyance. SAME.-Direct Language and Words of Recital.—Repugnance Between.—How Construed.--As between terms directly given as the language of the grantor, and words incorporated by way of recital, from another instru ment, in case of repugnance, that which is recited must be rejected, and that which is direct adhered to, as being most likely to express the intention of the parties. From the Elkhart Circuit Court. J. H. Baker and F. E. Baker, for appellants. MILLER, J.-A complaint in two paragraphs was filed by the appellants against the appellees. The first paragraph seeks to procure the cancellation of a mortgage given by the plaintiffs to secure part of the purchase-price of a mill and appurtenances, on account of a breach of warranty contained in the deed by which the premises were conveyed to the plaintiffs. This deed is made an exhibit, and, omitting the signatures and acknowledgment, is as follows: "This Indenture Witnesseth: That Enos Michael and Barbara Michael, his wife, of Branch county, in the State of Michigan, convey and warrant to John Anderson of Steuben county and State of Indiana, and Edward G. Scott of Branch county, Michigan, the interest of the said John Anderson to be the undivided one-third, and the interest of the said Edward G. Scott to be the undivided two-thirds of the real estate hereinafter described, for the sum of eight thousand dollars, the following real estate in Elkhart county, in the State of Indiana, to wit: That which is now known as the Benton Centennial Mills, on the Elkhart river, near the town of Benton, together with all privileges, water-powers, flowage and appurtenances of every kind whatsoever thereunto belonging, as the same is recorded in a certain mortgage dated May 12th, 1877, executed by Joseph Harris and James G. Ackerman to Samuel Stetler, and recorded in the mortgage record 20, page 280, in the recorder's office of Scott et al. v. Michael et al. Elkhart county, Indiana, as follows: "All lands in section seven (7) and eight (8), in township thirty-five (35) north, of range seven (7) east, which Peter Darr owned in his lifetime, and a small fraction of land lying near the saw mill south of the river and north of the Fort Wayne road, which comprises all of the land north of the road from the west line of said land to a point where the Fort Wayne road touches. the Elkhart river, with the privilege of overflowing so much of the land necessary in which the said Stetlers have any interest and claim; also the west half (2) of lot numbered nineteen (19) in Boyd's addition to the town of Benton, together with the mills and all the privileges and easements thereto belonging, subject to all taxes that are and may become a lien and come due after January, 1880." The paragraph avers that at the time the property was sold, and deed executed, the dams and embankments for storing the water by which the mills were propelled were maintained at the height of six feet, and that without their maintenance at that height the mills could not be operated with success and profit, but were worthless; that after the execution of the deed a suit was commenced against the plaintiffs and Anderson, charging that at and prior to the date of said deed the dams and embankments were higher by two feet than the owners of the mill had a right to erect and maintain them; that the grantor in the conveyance to them was notified and defended the action; but that a judgment for damages and costs was rendered against the plaintiff and Anderson, and also a decree for the reduction of the dam to the height of three feet, and that pursuant to the decree the sheriff of the county has cut them down to that height. See Anderson v. Hubble, 93 Ind. 570. The defendants successfully demurred to this paragraph, and the ruling of the court is assigned as error. The second paragraph of complaint alleged title in the plaintiff for two-thirds of the same property, and asked to have his title to the same quieted and set at rest. Scott et al. v. Michael et al. The defendants, Forney & Forney, who had become the owners of the unpaid notes and mortgage in controversy, filed a cross-complaint seeking to foreclose their mortgage. A demurrer was overruled to the cross-complaint, and this ruling is assigned as error. The appellants answered the cross-complaint, pleading substantially the same facts that had been set up in the first paragraph of his complaint, and a demurrer was filed and sustained to this pleading. No objection to the sufficiency of the cross-complaint has been pointed out, and that assignment of error may be treated as having been waived. The rulings of the court in sustaining the demurrers to the first paragraph of the amended complaint and to the answer to the cross-complaint present the same questions, and may be discussed together. The contention of the appellants is that the deed conveyed, as an incident to the grant, the dam as it stood at the date of the deed, and that the covenants in the deed assumed to protect him in the quiet enjoyment of the grant. The contention of the appellees, on the other hand, is, that the deed limits the conveyance and covenants for the overflow of land to "so much of the land necessary in which the said Stetlers have any interest and claim;" and that, therefore, the paragraphs of complaint and answer under consideration are bad for want of an averment that the lands overflowed, which gave the right of action on account of which the dam was lowered, were lands"in which the said Stetlers had an interest." It is well settled law that when the language of a deed will admit of two constructions the one less favorable to the grantor is to be adopted; not that the words are to be twisted out of their proper meanings, but that where, after other efforts have failed to show which of the expressions. show the meaning of the parties, the one most disadvan |