Rogers v. Beach et al. Allen, 113 Ind. 308; Indiana, etc., R. W. Co. v. Allen, 113 Ind. 581; Dumont v. Dufore, 27 Ind. 263. The record presents no question upon the rulings in admitting and in excluding testimony, for the reason that the motion for a new trial simply states that the court erred in admitting incompetent evidence and in excluding competent evidence, "as set out and designated by the bill of exceptions," but the evidence is not specified, nor is the name of any witness given. There is evidence sustaining the finding of the trial court. The deed is absolute on its face, and it must operate as a conveyance of the fee, unless it can be said that the evidence proved it to be a mortgage. The presumption is that the instrument is what it purports to be, a general warranty deed. 1 Jones Mortg., sections 282, 283; 3 Pomeroy Eq. Juris., section 1196. Several witnesses testified positively that the appellees bought the land after having refused to accept a mortgage. This evidence certainly gives full support to the theory of the appellees that they acquired the title to the land in fee. The fact that the parties agreed that the transaction should be a sale and not a mortgage is a very important one, although if it stood alone against evidence favoring the theory that the instrument was a mortgage, it might possibly not be absolutely controlling. Baker v. Thrasher, 4 Denio, 493; Macaulay v. Porter, 71 N. Y. 173. But the fact does not stand alone, nor is it opposed by circumstances of greater weight. It does not appear that the deed was made to secure a debt, but, on the contrary, it appears that the grantees paid to one of the grantors money to be used by him in paying a debt due from him to a third person. It can, of course, make no difference for what purpose the grantor obtained the money, provided the grantees became the purchasers of the land. If, in other words, they agreed to buy, and did buy, the property, then it is not material for what purpose the grantor wanted the money, nor Rogers v. Beach et al. to what purpose he applied it. He did, in fact, want the money which the appellees paid for the property for his own purpose, and did apply it to the payment of his own debt. There was no debt existing at the time the contract was made, owing from the grantors to the grantees, nor was any debt, then created, so that the instrument was not executed to secure a subsisting debt. It is true the grantees were sureties on the bond of one of the grantors, but the debt was his, and was due his creditor. If there had been a subsisting debt, the question would be more difficult; but there was no debt to the grantees, and the money was paid by them when the instrument was executed. There is still another reason why the instrument can not be regarded as a mortgage, and that is, that upon no possible contingency was the property to revest in the grantors. Baker v. Thrasher, supra; Macaulay v. Porter, supra. Nor was there any sum for which either of the grantors would be liable to the grantees after the purchase-price paid by the latter had been exhausted. There was, in fact, a sale of the property for an agreed price, and this price was paid in full by the grantees, so that the transaction was what it professes to be, a sale, and not a mortgage. Slowey v. MeMurray, 27 Mo. 113; Robinson v. Cropsey, 2 Ed. Ch. 138; Slutz v. Desenberg, 28 Ohio St. 371. It is not sufficient to transform a deed into a mortgage to prove that at the time it was made the parties agreed that, in the event that the property should be sold for more than the agreed price, the grantors should receive the increased price. Hays v. Carr, 83 Ind. 275; Conway v. Alexander, 7 Cranch, 218; Cunningham v. Banta, 2 Ind. 604; Lee v. Kilburn, 3 Gray, 594; Glover v. Payn, 19 Wend. 518; Flagg v. Mann, 14 Pick. 467. Leaving entirely out of consideration the evidence tending to show that Newton J. Rogers, and not the appellant, was the owner of the property, we think it clear that the Cummins, Trustee, ex rel. Mahan, v. Evansville and Terre Haute R. R. Co. judgment was right, for there was an absolute sale, and not a mere pledge of the property as the security for a debt. Judgment affirmed. Filed July 10, 1888. No. 14,290. CUMMINS, TRUSTEE, EX REL. MAHAN, v. THE EVANSVILLE AND TERRE HAUTE RAILROAD COMPANY. HIGHWAY.-Obstruction of.-Railroads.- Practice.- Mandate.-Statute Construed. The provisions of section 3903, R. S. 1881, confer upon a railroad company, duly incorporated, authority to construct its railroad track over and across a public highway; but such company is required to restore such highway to its former state, in a sufficient manner not to unnecessarily impair its usefulness, and the performance of such duty may be compelled by mandate. SAME.-Statute Construed.-The provisions of section 23 of "An act concerning highways," passed March 2d, 1883 (Acts 1883, p. 62), do not apply to a case where a railroad company, having constructed a track upon a public highway, fails to restore such highway to its former condition of usefulness, and in such case an action for the statutory penalty provided for in such section will not lie. From the Sullivan Circuit Court. W. C. Hultz, O. B. Harris and J. S. Bays, for appellant. Howk, J.-This suit was commenced by appellant, Cummins, trustee of Jackson township, of Sullivan county, upon the relation of William H. Mahan, supervisor of road district No. 2 in said township, as plaintiff, against the appellee as defendant, before a justice of the peace of said county. VOL. 115.-27 115 417 140 277 115 417 149 278 115 417 158 191 Cummins, Trustee, ex rel. Mahan, v. Evansville and Terre Haute R. R. Co. From the justice's judgment the cause was appealed to the court below. There defendant's demurrer to the complaint herein, for the alleged insufficiency of the facts therein to constitute a cause of action, was sustained. Plaintiff declined to amend his complaint or plead further, and thereupon the court adjudged that he take nothing by his suit, and that defendant recover of him its costs expended herein. In this court error is assigned by plaintiff upon the sustaining of the demurrer to his complaint herein. In his complaint plaintiff alleged that the defendant, on the 31st day of August, 1886, and on each and every succeeding day until the 9th day of October, 1886, unnecessarily and to the hindrance of passengers, obstructed a certain public highway in road district No. 2 of Jackson township, in Sullivan county, described as follows, to wit: (Description omitted), by then and there, and all of said time, building,. constructing and maintaining a railroad track in, upon, along, across and over said highway, and by then and there, and all of said time, running and operating trains of cars, engines. and locomotives upon and over said line of railroad track in such a manner as to then and there, and all of said time, interfere with the free use of said highway, and not to afford security for life and property; that the defendant then and there, and all of said time, utterly failed in every particular to restore said highway, so intersected, to its former state, and failed in every particular to restore said highway, so intersected, in a sufficient manner so as not to interfere with or impair its usefulness, or injure its franchises. Wherefore plaintiff demanded judgment for $175, for an attorney's fee of five dollars for his attorney, and for all proper relief. In the absence of averment to the contrary, it must be assumed, we think, that appellee was incorporated as a railroad company, under the provisions of the general laws of this State providing for the incorporation of such companies, and was and is possessed of the general and special powers which Cummins, Trustee, ex rel. Mahan, v. Evansville and Terre Haute R. R. Co. those laws expressly confer upon such corporations, "subject to the liabilities and restrictions" expressed therein. Among the powers so conferred, in the fifth clause of section 3903, R. S. 1881, in force since May 6th, 1853, and still in force, it was and is provided that such a corporation shall possess the power" to construct its road upon or across any * * * * * highway, *** so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the *** highway, thus intersected, to its former state, or in a sufficient manner not to unnecessarily impair its usefulness," etc. Under this clause of the statute, we are of opinion that appellee was fully authorized to build, construct and maintain its railroad track over and across the highway described in the complaint. herein, and to operate its line of track by running engines and trains of cars thereon. But it became and was appellee's duty, under the statute, to restore such highway to its former state, or in a sufficient manner not to unnecessarily impair its usefulness. For the non-performance of this duty, the general laws of this State for the incorporation of railroad companies provide no penalty and prescribe no remedy. It has been held by this court, however, and correctly so, we think, that the performance of such duty by the railroad company may be compelled by mandate. Indianapolis, etc., R. R. Co. v. State, ex rel., 37 Ind. 489; State, ex rel., v. Demaree, 80 Ind. 519; Clawson v. Chicago, etc., R. W. Co., 95 Ind. 152. On the 2d day of March, 1883, an act of the General Assembly of this State was approved and became a law, entitled "An act concerning highways and supervisors thereof." In section 23 of such act, so far as it can be claimed to apply to the case under consideration, it is provided as follows: "Any person who shall **** unnecessarily, and to the hindrance of passengers, obstruct any highway, *** for |