of that question. The demurrer to appellee's complaint should have been sustained.

[3] Another question is presented, however, which is certain to arise on a further trial of the issues in dispute, and should here receive consideration. It developed at the trial below that the agreement between relator and Lyman E. Hamilton was oral in char

It is earnestly contended by appellant (1) that the above statute imposes no mandatory duty on the trustee where partition fences are divided for maintenance by contract be tween the adjoining owners; and (2) that, in any event, no such duty is imposed where the existence of the alleged contract is in dispute. We deem it unnecessary here to determine the first question suggested, but are of the opinion that appellant is correct in his latter contention.

[1] An action for mandate lies against officers "to compel the performance of any act which the law specifically enjoins, or any duty resulting from any office, trust, or station." Section 1225, Burns 1914. But a complaint in mandamus, to repel a demurrer, must state a clear legal right on the part of the relator to the relief which is sought, and show a clear legal duty of defendant to perform the act demanded. Paddock v. State ex rel., 114 N. E. 217; State ex rel. v. Graham, 183 Ind. 53, 55, 108 N. E. 111.

Ordinarily, mandamus will not lie to enforce the performance of contracts, since legal and equitable remedies afford adequate relief. State ex rel. v. Trustees of Salem Church, 114 Ind. 389, 396, 16 N. E. 808; Harrison School Twp. v. McGregor, 96 Ind. 185; State ex rel. v. Marion Light & Heating Co., 174 Ind. 622, 624, 92 N. E. 731. This is especially true where the existence of the contract which forms the basis of the mandatory action is in dispute between the interested parties. Harrison School Twp. v. McGregor, supra, 96 Ind. p. 189.

In the present case no duty rests on Ratts, as the owner of the land lying north of the fence in question, to maintain the east half of such fence, unless by virtue of contractual obligations. Appellee's complaint assumes the existence of such a contract, but does not allege that Ratts has conceded its existence, or that the validity thereof has been adjudicated by a court of competent jurisdiction. It is shown that Ratts disregarded relator's notice to repair or rebuild and, in the absence of contrary averments, it must be presumed that his refusal was in good faith. [2] The existence of the contract relied on was a question on which Ratts was entitled to his day in court (State ex rel. v. Jamison, Auditor, 142 Ind. 679, 683, 42 N. E. 350), and it cannot be said that the statute here makes the trustee a tribunal for the determination

of the same prior to his purchase of the land which he now owns. To cover this element of the case appellant tendered an instruction in the following language:

"A covenant or agreement between two adjoining landowners concerning a partition fence separating the lands of one from the lands of the other does not run with the land so as to be binding on the grantee of either, or successive grantees, if such grantees are purchasers without notice of said covenant or agreement. So, if you find from the evidence in this case that George V. Ratts had no notice, actual or constructive, at any time, of the existence of any such agreement or covenant between Peter M. Hamilton, the relator herein, and Lyman E. Hamilton, his brother, a remote grantor of said Ratts, concerning the building, repair, and maintenance of the fence line in dispute, then, in that case, I instruct you that he was a purchaser without notice, and that said agreement or covenant did not run with the land as to said Ratts, and your verdict should be for the defendant."

This instruction was refused by the court, and its action thereon is challenged by appellant's motion for a new trial.

The relator's lands are located south of the partition fence, and under the law (section 7378, Burns 1914) the duty rests on him to maintain the east half of that fence. The statute, however, clearly recognizes the right of adjacent landowners to contract and agree among themselves as to what portions of a partition fence shall be built and kept in repair by the respective parties in interest, and we have, then, to consider whether the contract in this case placed on Ratts the duty of maintaining the east half of the fence in question.

A covenant running with land, so as to make the owner of one subject to the other, constitutes an easement or interest in said land, and, as such, it can attach and continue only under such circumstances as are sufficient to charge the owner of the servient estate at the time of its acquirement with knowledge, actual or constructive, of its existence. A parol contract between adjacent landowners concerning the maintenance of a partition fence does not afford such notice, and the authorities are uniform to the effect that such an agreement does not constitute a covenant running with the land. Kentucky Cent. R. Co. v. Kenney, 82 Ky. 154, 156; Kneale v. Price, 29 Mo. App. 227, 231; Guilfoos v. N. Y. Cent., etc., R. Co., 69 Hun, 593, 594, 23 N. Y. Supp. 925; St. Louis, etc., R. Co. v. Todd, 36 Ill. 409.

The instruction above set out embodies this principle, and should have been given at appellant's request. If it should appear that Ratts is, in fact, under no legal obligation

TION BILITY.

1. HUSBAND AND WIFE 334(1)—ALIENATION OF AFFECTIONS-MEASURE OF DAMAGES.

The services, conjugal affection, and society of a husband are valuable property, and, in a suit by the wife for alienation of the husband's affections, the measure of damages is the value of the husband of whom she has been deprived. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1125; Dec. Dig. 334(1).] 2. APPEAL AND ERROR 882(12)—SCOPE OF

REVIEW-INVITED ERKOR.

In an action by the wife for alienation of the husband's affections against his parents, the parents cannot complain of an instruction to find for the plaintiff if either of them maliciously alienated the husband's affections from his wife, where they requested an instruction of the same nature, so that error, if any, was in

vited.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3602; Dec. Dig. 882 (12).]

3. APPEAL AND ERROR 216(1)-WAIVER OF OBJECTIONS-INSTRUCTIONS.

Where ample opportunity was afforded two defendants to have three forms of verdict sub mitted instead of two, one to find for plaintiff and one for defendants failing to submit form to find against one only if found guilty, but they made no request therefor at the proper time, they could not complain of an instruction to find for the plaintiff if either of them did the act charged.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. 216(1); Trial, Cent. Dig. § 627.]

4. TRIAL 194(14) — INSTRUCTIONS-INVADING PROVINCE OF JURY.

An instruction in action for alienation of husband's affections that, if the jury found that defendants did the acts charged and thereby alienated the husband's affections, and if it found that the acts were done purposely without just or probable cause, it could infer that such acts were done maliciously, but that in case it should so find, whether such inference should be drawn is for the jury to determine from the evidence, is not objectionable as invading the province of the jury to determine whether the acts were malicious.

[Ed. Note. For other cases, see Trial, Cent. Dig. 464; Dec. Dig. 194(14).]

5. TRIAL 260(1)—INSTRUCTIONS.

Refusal of requested instructions substantially covered by those given affords no ground for complaint.

[Ed. Note.-For other cases. see Trial, Cent. Dig. 651; Dec. Dig.

260(1).]

In an action for alienation of the husband's affections against his parents, the wife's testimony as to what her husband and sister-inlaw did, in the absence of evidence connecting the parents with such acts, is inadmissible.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1124; Dec. Dig. 333(6).] 7. HUSBAND AND WIFE 333(1)—ALIENATION OF AFFECTIONS-GOOD FAITH.

A parent may always in good faith and for the best interests of his child advise and counsel with him, and, where advice is given, the presumption is that it was induced by feelings the child's good. of the highest parental affection, and only for

Wife, Cent. Dig. § 1124; Dec. Dig. 333(1).]

[Ed. Note.-For other cases, see Husband and

8. EVIDENCE 121(16)-RES GESTE-ALIENATION OF AFFECTIONS-GOOD FAITH.

In the wife's action against her husband's parents for alienation of his affections, the parents should have been permitted to testify as a part of the res gestæ that at the time of marriage of their son and of his wife's illness they took them into their home and paid for medical services for the wife, and supplied them with a dwelling place.

Cent. Dig. § 337; Dec. Dig. 121(16).] [Ed. Note.-For other cases, see Evidence,

9. EVIDENCE 121(16)-RES GESTE-ALIENATION OF AFFECTIONS-GOOD FAITH. the husband's affections, she contended that her Where, in the wife's suit for alienation of sister-in-law and family were permitted to move into a house supplied by the parents for the purpose of driving her out, the parents should have been permitted to show, as a part of the res gestæ, the arrangement made for occupancy of the house.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 337; Dec. Dig. 121(16).]

10. TRIAL 140(2)-CREDIBILITY OF WITNESS QUESTION FOR JUry.

tions offered as part of the res gesta were made It is a question for the jury whether declarain good faith, or were manufactured evidence for use in the wife's suit for alienation of affec

tions.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 335; Dec. Dig. 140(2).] 11. EVIDENCE 118 "RES GESTE."

The term "res gesta" includes the surrounding facts of a transaction and accompanying declarations as well to explain the act done, or for showing a motive for acting, although such declarations aside from this doctrine may be said to partake of hearsay.

Cent. Dig. §8 297-302; Dec. Dig. 118. [Ed. Note.-For other cases, see Evidence,

For other definitions, see Words and Phrases, First and Second Series, Res Gesta.] 12. APPEAL AND ERROR 994(2)-REVIEWCREDIBILITY OF WITNESSES.

The question of credibility of witnesses is for the jury, and not for the court on appeal. [Ed. Note. For other cases. see Appeal and Error, Cent. Dig. §§ 3902, 3903; Dec. Dig. 994(2).]

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Action by Helen Daywitt, by her next friend, Jane Stewart, against Albert Daywitt and others. Judgment for plaintiff, and deReversed, and new trial fendants appeal. granted.

IBACH, P. J.

This action was brought by appellee, an infant, and wife of Lawrence Daywitt, by her next friend, against appellants, who were the parents of said Lawrence, to recover damages because they had willfully, maliciously, and wrongfully alienated the affection of her husband, and had maliciously and wrongfully induced him to drive her from their home, and wrongfully persuaded him to abandon her and their children without support.

The questions in the record presented for our determination relate to the court's refusal to give to the jury certain instructions requested by appellants, and in giving others on the court's own motion, for admitting irrelevant testimony, and for excluding competent testimony.

Appellants first contend that instruction 11 requested by them should have been given,

and is as follows:

"You are instructed that the damages in a case of this character is to be measured by the value of the husband of whom the wife has been deprived, and if you should find for the plaintiff in this case, you would have the right to consider, in determining the question of damages, the treatment of the plaintiff by her husband during their marital life and before the alienation of the husband's affections, if such alienation has been shown by the evidence, and you may also consider in that connection the hap piness or lack of happiness which prevailed in the home of the plaintiff and her husband before such alienation, and any other facts shown by the evidence which show the domestic relations of the plaintiff and her said husband prior to such alienation, if you find in fact that such alienation has occurred."

[1] Without approving the form of this instruction, we concur in the legal proposition involved that the services, conjugal affection, and society of a husband is valuable property, and in a suit by the wife for the alienation of her husband's affections the measure of damages is the value of the husband of whom she has been deprived. A man who demeans himself toward his wife as a dutiful, kind, and loving husband is much more valuable to her than one who has been cruel, indifferent, and neglectful of her. And it is evident that the trial court considered an instruction embodying such legal proposition proper in view of the facts of the case; for on its own motion the following instruction was given:

"In case you find for the plaintiff you may take into consideration what, if any, damages she has sustained on account of the loss, if any, of the services of her husband; also you may consider, if the evidence shows, what, if any, damages she has sustained on account of the loss, if the evidence shows, of the society, companionship, affection, and protection of her husband."

The record discloses that the appellants were permitted to show the character of the home life of plaintiff and her husband, and

told in the instruction that, if they found for the plaintiff, they might, in calculating her damages, consider both loss of service and loss of companionship. Such terms and expressions embrace the elements which go to make up the value of the husband; consequently the instruction given contained substantially all that was included in the iustruction refused, although not so clearly stated.

It is also contended that there was error in the giving of instruction No. 3 of the court's own motion. This instruction is as follows:

"In order for the plaintiff to recover in this cause, it must be shown by the evidence that the defendants, or one of them, alienated the affections of the plaintiff's husband from her, or by some acts of theirs caused the separation of the plaintiff and her husband. And it must also be shown by the evidence that the defendant's conduct in so doing was malicious, or that the acts causing the said alienation of affections, or separation, were done through malice. And, if you find from the evidence that the defendants, or tions of plaintiff's husband, and did thereby either of them, did cause the alienation of affeccause the plaintiff and her husband to separate, then it is a question of fact for you to determine from all of the evidence given in the cause whether or not the acts of the defendant, or defendants, were done maliciously, or were done in good faith for the best interests of their son. When a father and mother are charged with the alienation of a husband's affection, the quo animo is the important consideration; that is, from what motive did the parents act? Was it malicious, or was it inspired by a proper regard for the welfare and happiness of the child. The reciprocal obligations of parent and child last through life and the duty of discharging them does not cease by the marriage of the child. When trouble and disagreements arise between the married pair, the most natural prompting of the child direct it to find solace and advice under the parental roof. All legitimate presumptions in such cases must be that the parent will act only for the best interests of the child. The law recognizes the right of the parent in such cases to advise the son or daughter, and when in a separation, the act does not give the injured such advice is given in good faith, and results party a right of action. In such a case the motives of the parents are presumed to be good This preuntil the contrary is made to appear. ents is like any other presumption that may sumption of good faith on the part of the pararise, and it may always be overcome by evidence to the contrary. So it is for you to determine from the evidence in this cause whether or not the defendants or either of them did cause the alienation or separation charged in the complaint, and, if so, whether or not their from the evidence that the defendants or either motive in so doing was malicious. If you find of them did the acts charged and with the result as charged, and that the acts were done through malice, then your verdict should be for either of them did cause the alienation or septhe plaintiff. But unless you find that they or aration charged, and that it was done through malice, then you should find for the defendants."

[2] The next to the last sentence of this instruction is the portion particularly criticized, and the objection is that the jury is not instructed as to a finding against the defendants separately, and that only two forms of verdict were submitted, one a finding for the plaintiff, and the other a finding for the

defendants. In other words, appellants contend that the instruction directed a verdict against both defendants if the proof showed only one of them guilty. The charge is subject to this criticism,. but the state of the entire record shows that its giving was harmless, and that appellants are in no position to ask for a reversal because it was given.

The record shows that an instruction tendered by appellants and given to the jury was of the same nature, so that, even if there was error in the form of the instruction now contended for, it was an invited error, and appellants must be charged with it, and they cannot now complain. Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99.

[3] Again, ample opportunity was afforded appellants to have three forms of verdict submitted to the jury instead of two, and, not having made such request at the proper time, it seems to us in view of the entire record that such contention is without merit at this time.

Appellants also condemn instruction 4 given on the court's own motion. In this instruction the court said:

"Malice is defined as a disposition or intent to injure another or others for the gratification of anger, jealousy, hatred, revenge, or the like; active malevolence; a deliberate intention to do evil either with or without personal ill will; a willfully framed design to do another an injury. If you find that the defendants or either of them did the acts charged in the complaint, and thereby caused the alienation or separation as alleged, and if you find that the said acts were done purposely and without just or probable cause, then you may infer that such acts were done maliciously. But in case you so find whether or not such inference should be drawn from the acts of the defendants is for you to determine from the evidence in this cause.'

[4] The objection raised is that the court invaded the province of the jury, and it is argued that it was for the jury to determine not only whether or not it should draw the inference of malice, but whether or not any given state of facts would warrant such inference. In this instruction, in defining malice, the court followed the instruction used by the court and approved by this court in the case of Kelso v. Kelso, 43 Ind. App. 115, 86 N. E. 1001. The jury is there informed, if they found that the wrongful acts charged in the complaint were committed as charged, and were done purposely and without probable cause, then they might infer malice, but in any event it was for them to determine from all of the evidence whether such inference should be drawn.

There is no direction for them to so find; no such words as "must" or "ought" are used. There could have been no objection urged if the court had simply informed the jury that malice need not be proven by direct evidence, but it may be inferred from all the evidence introduced, and we believe that in effect is what the jury were told and that

[5] Other instructions tendered by appellants were refused, but there is no ground for complaint, for the reason that the court fully covered them by other instructions given.

[6] Objection is made to the action of the court in admitting in evidence, over appellants' objection, certain acts of appellee's husband on the day of, and the day preceding their separation, also the conduct of her sister-in-law toward her on the same days, all of which acts were done in the absence of appellants, and also in admitting in evidence over objection the following statement made by appellee's husband to appellee's mother in her presence:

"My father says if you don't take the woman and kids and get off the place he will kick you off."

We are not unmindful of our statute and the universal rule which requires the protection of marital communications, but we do not consider that the class of evidence objected to falls within the letter or spirit of the statute or within the rule that confidential communications between husband and wife are not admissible in evidence in favor of the wife in a suit by her against the parents of her husband for the alleged alienation of his affections. Neither does it fall within the rule that conversations between persons not parties to the action, had in the absence of the parties against whom the same were introduced, are not competent evidence.

To support one of the material averments of the complaint it was essential for appellee to show the loss of the affections of her husband and that she was driven from her home on account thereof. The evidence objected to was competent for that purpose and none other, and to make her case it was necessary for the appellee to go further and show that the cause of their separation was occasioned by the misconduct of the husband's parents.

But what the husband and sister-in-law did, in the absence of other evidence, in some manner connecting the appellants with it, would have no probative value against appellants, and would be no proof to support that issue. The fact that appellee's hus band reported that his father had made a threatening statement, which report may have had some influence on appellee's conduct, could not be taken as any evidence that the parents had actually made such a statement, and would be no proof that appellants' conduct occasioned the withdrawal of her husband's affections.

It is further contended that the court erred in refusing to admit in evidence declarations of the appellants as a part of the res gestæ showing the absence of malice. Our courts have many times held that declarations made at the time of the transaction inquired about, and which are a part of the