Volume 139 — Indiana Reports

<p>Reformation of Instrument. — Deed.—Description.—Mistake of Fact. —Married Woman. — Where, by inadvertence oí the scrivener in the preparation of a deed, and by mutual mistake of all the parties thereto at the time of the execution thereof, the description of the premises conveyed was erroneously stated as the “undivided three-fifths,” while the description intended and believed by the parties at the time of the execution of the deed to be duly stated therein was “the undivided four-fifths,” the deed may be reformed so as to express the mutual intentions of the parties, even though such relief be sought against a married woman.</p> <p>Same. — Mistake of Fact. — Deed.—Description.—Even if the parties knew that the deed read “three-fifths’’ instead of “four-fifths,” it constitutes a mistake of fact, and not a mistake of law, if the parties really thought the deed sufficient to convey the “four-fifths,” and would entitle the plaintiff to a reformation in that respect.</p> <p>Same. — Mistake of Fact. — Mistake of Law.— Belief. — Deed.—Omission of Grantor’s Name from Body of. — Equity requires such amendment of a writing (a deed) as will make the contract (the conveyance) what the parties supposed it was, and intended it should be, whether the mistake be one of law or of fact. So, where one of the grantors, a married woman, and her husband, joined in the execution of the deed, but their names do not 'appear in the body thereof, and appear only where they signed it and in the certificate of acknowledgment by the notary, the deed should be reformed so as to express the mutual intentions of all the parties.</p> <p>Partition. — Tenants in Common.— Valuable Improvements.— When En- . titled to Compensation. — Where one tenant in common makes necessary, valuable and lasting improvements, he is entitled to_ compensation therefor, on partition.</p>

<p>From the Madison Circuit Court.</p>

<p>Deed. — Conveyance.—Joint Tenancy. — Beal Estate. — Where the premises and the habendum of a deed are, that B. W. and R. W. of Hamilton county, and State of Indiana, convey and warrant to L. R. and J. R., jointly, of Hamilton county, in the State of Indiana, etc., the word “jointly” creates in the grantees a joint tenancy.</p>

<p>From the Lake Circuit Court.</p>

<p>Fraudulent Conveyance. — Property Sufficiyit From, Which Debts May be Enforced at Time of Conveijance. — If, at the time a conveyance is made by a debtor, he retain property sufficient to pay his debts, and from which the debts may be enforced, upon execution, his conveyance is not fraudulent as to creditors, and his subsequent insolvency would not cause such conveyance to be set aside.</p>

<p>Decedent’s Estate. — Election by Widow. — When Properly Made.— Where a widow does everything required of her by the law, and within the required time, the election is properly made.</p> <p>Same. — Election by Widow.- — Need not be Made Exhibit in Action for Partition. — The election, or a copy thereof,'need not be made a part of the complaint in an action by the widow for partition, where the election is but evidence of ownership and riot the basis of the action.</p> <p>Assignment oe Eeeobs.— Joint Assignment.— Individual Errors.— Where several parties assign errors jointly, they are not in a position to complain of an error as to them individually.</p> <p>Supbeme Couet Peaotice.' — Partition.—Exception to Commissioners’ Beport. — Affidavits Pro and Con not in Becord. — Alleged error of commissioners in partition is not duly presented for consideration where the affidavits in support of and against the exceptions to the report of the commissioners are not made a part of the record.</p> <p>Same. — Evidence.—Offer to Prove, etc. — When no Question Presented.— Partition. — Where it is alleged that the court erred in refusing a trial on exceptions to the report of commissioners in partition, except by affidavits, the appellants are not in a situation to complain of the alleged error, where it is not shown in the record (1) that they in any way offered to support their exceptions by proof other than affidavits, (2) who the witnesses are that they offered in support of their exceptions, nor what they would testify to, and whether they were competent or not.</p> <p>Estoppel.— Will: — Election by Widow. — Partition.—It is no ground of objection in an action for partition by the widow, who has chosen to take under the law, that she was present when the will was executed, and made no objection to it.</p> <p>Same. — Will.—Election by Widow. — A widow who has expressed herself as satisfied with the provisions of her deceased husband’s will is not estopped to take under the law on discovering what her legal rights are, if she acts in the time allowed by statute.</p> <p>Paetition. — Amendment of Pleading. — Commissioners’ Beport. — - A complaint in partition may be amended so as to conform to the report of the commissioners.</p>

<p>From the Owen Circuit Court.</p>

<p>Prom the Huntington Circuit Court.</p>

<p>From the Boone Circuit Court.</p>

<p>Erom the Dearborn Circuit Court.</p>

<p>Supreme Court Practice. — Special Findings. — Same Questions Upon Pleadings. — Where the same questions are presented on the special findings and conclusions of law that arise on the demurrers to pleadings, the rulings upon the demurrers are immaterial.</p> <p>Special Finding. — General Finding Disregarded. — Where special findings are demanded and made, a general finding will be disregarded.</p> <p>Real Estate. — Childless Second Wife. — Estate of. — Conveyances by Children of Prior Marriage.— Construction of Statute. — Change of Pule. — It was held by the Supreme Court, up to the May term 1881, that by the provisions of sections 2483 and 2487, R. S. 1881, a second or subsequent wife, having no child by her husband, took only a life estate in one-third of his lands where he left living children by a former marriage. At the May term 1881, the rule was changed, it being then decided that the wife under such circumstances inherited a fee simple in the undivided one-third of the husband’s lands, and that at her death his children by the former marriage became her forced heirs.</p> <p>Meld, that conveyances made by children of a prior marriage during the life of the childless widow while the former construction prevailed carried to the grantee the fee simple.</p> <p>Meld, also, that the new construction of the statute can only be applied prospectively, and that upon the death of the childless widow after such construction was declared, the children of the former marriage took nothing as against their prior grantee.</p> <p>Partition. — Title.—The pleadings in a suit for partition may be so framed as to raise and settle questions of title, but where they are not, and only the matter of partition is adjudicated, the title is held as before.</p> <p>Deed. — Character of Estate Conveyed. — Estoppel.—A deed of release, or quitclaim, or a conveyance of the right, title and interest of the grantor, even though it' be with full covenants of warranty, without designating in the instrument any particular estate, operates simply to transfer the present interest of the grantor; but' where a deed containing covenants of warranty bears upon its face evidence that the grantor intended to convey an estate of a particular description or quality, then, even though the covenants be teohnicaUy imperfect, the grantor and those claiming through him will be bound in respect to the estate described, to the extént at least of being estopped to deny that the grantor was seized of such estate at the time of the conveyance.</p>

<p>From the Gibson Circuit Court.</p>

<p>From the Ripley Circuit Court.</p>

<p>From the Owen Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>From the Vermillion Circuit Court.</p>

<p>Conveyance. — Of Expectancy or Remainder. — Constructive Fraud.— Where an orphaned infant, being the actual owner of a part of a tract of land and the owner of the other part subject only to a life estate, the whole being worth three thousand dollars, is kept in ignorance of his actual legal rights by interested relatives, with whom he makes his home, and is induced, immediately after arriving at legal age, to execute a deed to the whole tract for five hundred dollars, there is such constructive fraud as entitles him to have 'the deed set aside.</p> <p>Same. — Statute of Limitations. — Remainderman.—Life Tenancy. — The statute of limitations does not begin to run against a remainderman during the life tenancy.</p> <p>Same. — Construction of Deed. — Vested Remainder.— Postponement of Possession. — A warranty deed conveying land to A for life, then to go in fee simple to B in the event that he lives to be twenty-one years old, vests the remainder in B but postpones the possession.</p> <p>Same. — Sale of Remainder. — Adequacy of Price. — Life Estate not Considered.■ — Public Policy. — In determining adequacy of the price paid to a remainderman, the life estate can not be taken into account, as the law, by reason of public policy, requires that the full market value be paid.</p> <p>Same. — Relief from Fraud. — Limitation of Action. — Upon a conveyance of land held in fee simple the statute of limitations begins to run when the deed is delivered, and relief from fraud practiced in procuring the conveyance must be sought within six years.</p>

<p>From the Parke Circuit Court.</p>

<p>From the Rush Circuit Court.</p>

<p>From the Jackson Circuit Court.</p>

<p>From the Rush Circuit Court.</p>

<p>From the Clinton Circuit Court.</p>

<p>From the Wabash Circuit Court.</p>

<p>Process. — Summons.—When Necessary to Issue. — Cross-Complaint.— Jurisdiction. — Wliere a cross-complaint is filed, setting up a cause of action not disclosed in the original complaint, it is necessary to issue process thereon against the defendants therein named, in order to acquire jurisdiction over their persons.</p>

<p>Lien.— On Lands of Decedent.— When May be Enforced After. Final Settlement — Contribution.—Where a person holds a specific lien on real estate of a decedent, as for contribution for money paid by a co-surety, he can either file his claim therefor against the decedent’s estate, or he may enforce such lien against the land after final settlement of the estate, for liens continue against real estate unless discharged by decree or payment.</p>

<p>Real Estate. — Title by Adverse Possession.— Twenty Years’ Statute of Limitation. — Twenty years of adverse possession of land under claim of ownership in fee confers as complete a title as a written conveyance.</p> <p>Same. — Easement. —Extinguishment.—Adverse Possession. — Revivor of Easement. — Conveyance.—Leed.—Where A conveyed a strip of land ofl Ms lot to B, adjoining B’s lot, to be used as a driveway, reserving to Mmself, Ms heirs and grantees an easement in said way for driving, etc., and B and Ms grantees have continuously, for more than twenty years, claimed the ownership in fee thereof, and for such time held exclusive and adverse possession thereof, denying the enjoyment of the easement, the easement, having been extinguished by adverse possession, can not be revived by a grantee of B by a reference to the reservation in A’s deed to B.</p> <p>Same. — Conveyance.—Deed, Secitals in. — Estoppel Only as Between Parties or Privies to Conveyance. — The reference to the reservation in A’s deed by a subsequent conveyance by one of B’s grantees, can not be set up as an estoppel by the grantees of A, they not being parties or privies to the conveyance; for no one can set up another’s act or declaration as a ground of estoppel, unless he has Mmself been misled or deceived by such act or declaration.</p> <p>Same. — Possessory Action.- — Title.—Seeovery.—One must recover, if at all, on the strength of his own title, and not on the weakness of Ms adversary’s.</p>

<p>Action. — Foto of. — Remedy.—Gode.—Equity.—Under the code we have but one form of action, which embraces all that was formerly comprehended by actions at law and suits in equity, and there is a remedy if the case is such as would formerly have called for the interposition of a court of equity.</p> <p>Same. —Partnership.—Equitable Relief. — In courts of chancery a partner could sue his copartner and obtain an adjustment of the partnership affairs, and thus recover his whole interest therein.</p> <p>Same. — Gomplaint.—Partnership.—Dissolution and Accounting. — That the complaint is sufficient for a dissolution and accounting of a partnership, see opinion.</p> <p>Partneeship. — Legal Rights. — Contractual Rights. — Relief.—A partner who is being defrauded has access to the courts for relief, notwithstanding contractual stipulations.</p>

<p>Contract.— Written.- — Parol Verification. — Oral Agreements Performed Subsequent to Making Written Contract. — Subsequent Agreements.— Promissory Note. — The rule that the terms of a written contract (in this case a promissory note) can not be varied by parol, does not exclude oral agreements made and performed subsequent to the execution of the written contract; and prior or contemporaneous agreements fully executed after the making of the written contract become, by their fulfillment, subsequent agreements.</p> <p>Husband and Wife.— Wife Purchasing Heal Estate and Taking Title in Husband’s Name. — Suretyship of Wife.- — Debtor and Creditor. — Where a married woman bought real estate, giving her note, secured by mortgage thereon, in part payment of the purchase-price, and took . the title in the name of her husband, the relation of debtor and creditor was not created between the husband and vendor, and consequently the wife could not occupy the position of surety for her husband.</p>

<p>From the Vanderburgh Superior Court.</p>

<p>From the Cass Circuit Court.</p>

<p>Title. — Judicial .Sale. — Authority to Make. — Title under a judicial sale can not be maintained without an affirmative showing that the sale was made upon a writ authorized by the judgment.</p> <p>Same. — Judicial Sale. — Authority to Make. — Deed.—While the deed may be evidence of the sale, yet it is not evidence of the power or authority to make it.</p> <p>Notice.' — Of Issuance of Precepts for Street Assessments. — Validity of. —Error in Amount of Assessment. — The notice of the issuance of precepts for street improvements is not invalid as to an' assessment, where the notice states the amount of assessment at ¡¡¡32.10 instead of ¡¡¡¡32.20, the correct amount, as the law does not observe trifles, and the error not being such as to deceive or control the action of . one of ordinary business capacity.</p>

<p>Statute of Limitations. — Ten Year Statute. — Execution Sale. — Beal Estate. — Misdescription.-—Where the judgment debtor brings action to recover real estate sold on execution, and it appears that the whole parcel, 15x60 feet, was sold on execution against her, though there was an evident mistake in the sheriff’s deed, the description therein being 15x15 feet, possession being taken and retained under it for more than ten years before the commencement of suit to test the validity of the sale, the action is effectually barred by the ten year statute of limitation.</p> <p>Same.. — Execution Sale. —Statute Buns from Time of Sale. — In such case the statute of limitations begins to run from the time of sale, and not from the time the deed is executed.</p> <p>Sale on Execution.. — Foreclosure Decree. — -Sheriff’s Sale. — Asale on a decree of foreclosure is a sale on execution within the meaning of the statute.</p>

<p>From tlie Howard Circuit Court.</p>

<p>Municipal Cokpokation. — Gity.—Ordinance.— Water Company. — Police Regulation. — An ordinance in relation to a water company, for protection against fire, is not a police regulation, nor one which the municipality is under obligation to enact or enforce.</p> <p>Same. — City Ordinance. — Governmental Measure.— Water Company.— Insufficient Water Pressure. — Loss by Fire. — Liability.—Such an ordinance is a governmental measure which the city might enact or not, as seemed best. There is no public duty under such ordinance, the violation of which would render the city or the water company liable to any one who might suffer a loss of property by fire because of an insufficient water pressure, where sufficient pressure might have been supplied and the loss avoided.</p> <p>Same. — Water Company. — No Publie Duty. — No Privity in Contract, by Citizens. — In such case the water company had undertaken no public duty which would make it liable to an inhabitant of the municipality, and the citizen has no privity in the contract of the city with the company.</p>

<p>From the Marion Circuit Court.</p>

<p>Conveyance. — By Cotenant of a Several Part Without Partition. — A co-tenant can not, by his own deed, and without the co-operation of the other eotenants, select and dispose of his several interest in the common property, even though the part attempted to be conveyed is only equal in value to his share.</p> <p>Same.— Title Taken by Grantee of Cotenanc. — Life Estate. — Bemaincler. —"Where the owner of a life estate in land acquires by deeds from remaindermen title in fee simple to an undivided two-fifths thereof, a conveyance by him, prior to partition, of a definite part of the land, actually equal in value to two-fifths of the whole tract, carries to the grantee only the life estate in such part and the undivided two-fifths of the fee simple thereof.</p> <p>Same. — Partition.—Title.-—C., by devise from her father, owned for life forty acres of land with remainder over to her five children. Two of the children, A. and G., each sold an undivided fifth to the mother. Afterwards the mother conveyed to her daughter, A., and the latter’s two children, ten acres off the west side of the tract, and shortly afterward conveyed to the same grantees six acres more but not naming any particular part of the tract. In partition proceedings brought by these grantees they were found to be the owners of sixteen acres off the west ’side, and the same was sold by commissioners, C. being the purchaser. C. then sold the sixteen acres to W.</p> <p>Held, that the interest acquired by O. at this sale was only such as she had power to previously convey, viz., her life estate and undivided two-fiftlis interest in the sixteen acres, and that the conveyance to W. carried no more.</p>

<p>Quieting Title. — Necessary Party. — Judgment.—The holder of a tax sale certificate is not a necessary party to a suit by one claiming under a prior tax deed to quiet title as against the original owners of the land and a decree quieting title in such suit is not void as to him because he is not made a party.</p> <p>Same. — Transfer of Land Pending Suit. — Effect of. — Where, pending suit to quiet title to real estate, a part of the land is transferred by the plaintiff, the cause may, under section 271, E. S. 1881, proceed to final judgment in the name of the plaintiff, in the same manner as if there had been no transfer.</p> <p>Tax Sale. — Nonresident Bidder. — Must Comply with Statute. Delating to. —Illegal Sale. — A sale of land by a county treasurer to a person not a resident of this State for delinquent taxes, unless such nonresident, before bidding, shall have filed a written agreement consenting to the jurisdiction of the circuit court of the county and an appointment of a citizen of the county, as his agent, upon whom service of process may be had in any suit connected with the sale, as provided in section 8603, E. S. 1894, is illegal.</p> <p>Judgment. — Order Subsequent to Final Judgment. — Beview of on Appeal. — Withdrawal of Deposit to Secure Costs.- — An order made after the rendition of the judgment from which the appeal is taken, and which does not affect the judgment, such as an order allowing a party to withdraw from the clerk money deposited as security for costs, is not available on appeal.</p>

<p>Statute. — Revision and Substitution. — Repeal by Implication. — Where a new act covers the whole subject-matter of an old one, and it is evident that the Legislature intended to revise the old act, and substitute therefor the new, the prior act is thereby repealed without any express words to that effect.</p> <p>Same. — Agricultural Lands Within Town or City.— Taxation of. — Repeal of Statute. — The act of April 16, 1881 (Acts 1881, p. 698), relating to the taxation of agricultural lands lying within the limits of a city or incorporated town, being a revision of, and intended as, a substitute for the act of March 21, 1879 (Acts 1879, p. 94), upon the same subject, operated to repeal the last mentioned act, and the express repeal of the act of 1881 by the act of March 9, 1891 (Acts 1891, p. 398), extinguished both of the prior acts, and such lands thereafter were subject to taxation by a town or city as other property.</p>

<p>From the Gibson Circuit Court.</p>

<p>Way by Necessity. — Action to Recover. — Essential Elements. — Damages. — While injury is probably an essential element in a proceeding to establish or recover a way by necessity, yet the recovery of damages is not an indispensable accompaniment.</p> <p>Special Finding. — How Considered with Deference to Time. — Special verdicts should be read and considered with reference to the issue as tendered by the complaint and answers, and as addressed to the time when such issue was tendered, and not with reference to subsequent conditions, unless such conditions affirmatively appear to have changed the status of the parties or the facts constituting the issue.</p> <p>Statute of Limitations. — Possessory Action. — Private Watj.— Easement. — Six-Year Statute. — In an action to recover the possession of an easement, a private way, the possession of which has been disturbed, the six-year statute does not apply. Section 298, R. S. 1894.</p>

<p>From the Marion Superior Court.</p>

<p>Harmless Error. — Finding for Plaintiff on Paragraph of Complaint.— Frrors Relating Thereto. — Where the finding is for the plaintiff, as to a paragraph of complaint, all decisions in relation to such paragraph,. whether relating to the pleadings, evidence or instructions, if erroneous, were harmless as to him.</p> <p>Cancellation or Instrument. — Promissortj Note. — Mortgage.—Fraud. — Undue Influence. — Complaint.—Where a complaint, in an actionjto cancel and set aside a note and mortgage procured by fraud and undue influence, alleged, in substance, that the plaintiff was a feeble old man in ill health, of weak mind and in straitened circumstances, and that defendant, with full knowledge of all the facts, in bad faith, and for the fraudulent purpose of cheating and defrauding plaintiff, instituted an unfounded action against him for damages sustained in a real estate transaction between them, by reason of misrepresentations of the plaintiff; and that afterwards, by threats and undue influence, defendant intimidated plaintiff, and, on account of plaintiff’s old age, ill health and weak mind, induced him to execute the note and mortgage for the fraudulent purpose aforesaid, — the complaint is sufficient on demurrer.</p> <p>Same. — Consideration.—Compromise of Suit. — Fraud.—Intimidation.— Note. — Mortgage.—Where the jury And for the plaintiff on suchparagraph of complaint, the finding, in effect, was that the note and mortgage were without consideration, were procured by fraud and intimidation, and that the suit compromised was not a good cause of action, nor brought in good faith; and, therefore, the amount agreed upon in the compromise was not a sufficient consideration for the note and mortgage.</p> <p>Same. — Evidence.—Financial Condition. — Fraud.—Intimidation.—Mental and Physical Condition. —In an action to cancel a note and mortgage alleged to have been procured by fraud and intimidation, the fact that the plaintiff was, at the time of their execution, in straitened circumstances, added to old age and feebleness of mind and body, is certainly an element that may be taken into consideration in determining whether he was overreached in a fraudulent contract.</p>

<p>Superior Court. — Jurisdiction, Concurrent. — Tax Deed. — Quieting Title.— Circuit Court. — Statute Construed. — An action to quiet title to land held under a tax deed may be brought in the superior court. The act of December 21, 1872, providing that such suit may be instituted in the circuit court of the county where the land lies, does not destroy the former act of February 15, 1871, conferring original concurrent jurisdiction of such class of cases upon the superior and circuit courts.</p> <p>Variance. — Amendable.—Decree.—Collateral Attach. — Quieting Title.' — ■ Misdescription. — Where, in an action to quiet title, the land is misdescribed in the complaint, but is correctly described in the decree, the decree can not, on account of such variance, be collaterally attacked', and, on appeal, such variance would be deemed amended.</p> <p>Quieting Title.— Parties Defendant. — Omission of Lienholder as Party.— Effect of Decree. — Practice.—Waiver.—Collateral Attack.— The omission of the owner of the equity of redemption as a party to a suit to quiet the title to the land in controversy would not prevent the decree from operating to bar and foreclose those who were parties to the suit, and who were decreed to be barred and foreclosed; and the objection that the owner of the equity of redemption was not a party to the suit could only be taken in that cause by demurrer or by answer (not in a collateral suit), and not being so taken, the objection is waived.</p> <p>Sajie. — Against Superior Lienholder. — Payment or Offer to Pay. — Equitable Relief. — Where a party seeks to have title quieted against superior lienholders, before he can ask the interposition of a court of equity in his behalf, he should either pay, or offer to pay, the superior lien against which he seeks to quiet title.</p>

<p>Injunction. — Bight of Street Railroad to Cross Steam Railroad at Street Crossing. — Street Railroad's Bight Bounded on Public Basement.— Subject to no Conditions Other than those Placed on the General Public. — Since it is the settled law of this State that a street railway is not an additional burden to that of the easement which the general public has in the street, and that the street railway company’s right to use the street is founded on that easement, it must be held that the right of a street railway to cross over the tracks of a steam railway laid on such street is subject to no conditions other than those to which the general public is subject in traveling over such streets. Hence, it is not error to enjoin a steam railway company from interfering with a street railway company where the latter is proceeding to construct a proper crossing at its own expense. And the same'pmmiple applies where the crossing is in a public highway not a street.</p>

<p>Trust. — When Trustee Entitled to Compensation for Services in Trust Capacity. — Quantum Meruit. — Where a person accepting a trust is not a beneficiary under the -instrument creating the trust, and there is no agreement in relation to compensation of the trustee for his services, but he expected to be compensated therefor, and never understood that he was expected to serve gratuitously, the trustee is entitled to recover the reasonable value of his services in his trust capacity.</p> <p>Samb. — Compensation of Trustee. — Primary Liability for. — Mortgage.— Where the labors of a trustee named in a mortgage securing certain bonds consisted largely in doing the things which the mortgagor covenanted to do, such as keeping up the insurance on the mortgaged property, paying taxes, etc., because of tlie default of the mortgagor to do the same, the charges for compensation ought to be primarily against the mortgagor, or the mortgaged property.</p> <p>Same. — Compensation of Trustee. — Fund Primarily Liable Therefor.— Whether the claim of the trustee for compensation is primarily against one fund or another depends upon the facts of each particular case, i. é., the character of the services rendered by the trustee.</p>

<p>From the Whitley Circuit Court.</p>

<p>From the Lake Circuit Court.</p>

<p>Negligence. — Damages. — Action by Administratrix. — Averment that Plaintiff was Dree from Fault Not Necessary. — It is not necessary to allege in a complaint by a wife, as administratrix, to recover damages for negligently causing the death of her husband, that she was free from fault.</p> <p>Same. — Averment as to Inability to See and Hear. — Effect of. — In a complaint to recover for negligently causing the death of the plaintiff’s decedent at a railroad crossing, an allegation that the deceased was “unable to see or hear any engine or train of cars in motion on account of” certain described obstructions, is equivalent to an allegation that he did not see or hear the engine or train.</p> <p>Same. — Contributory Negligence. — Pleading.— When Specific Controls General Allegation. — A specific allegation will not control a general allegation of freedom from contributory negligence unless the specific allegation appears to include all of the occurrence and stands in conflict with that otherwise embraced in the general allegation.</p> <p>Railroad. — Street ■Grossing. — Obstructions.—Finding as to Sow Far Trains Gould be Seen. — Negligence.—Where one driving along a street which crosses two parallel railroad tracks, thirty-five feet apart, exercises due care in approaching and passing the first track, which is a side track, with cars standing thereon so as to obstruct the view of the main track, and then looks and discovers a train, which has not given the required signals, rapidly approaching upon the main track, and makes every possible effort to avoid a collision, it is immaterial how far he could have seen the train when he had crossed the side track, and a refusal to require the jury to make a finding upon that point is not error.</p> <p>Same. — Killing at Street Grossing. — Neglect to Give Signals. — Limit of Damages. — Statute Bepealed. — The act of March 29, 1879 (Acts 1879, p. 173; R. S. 1881, section 4020, et seq.), in so far as it Axes the damages recoverable for injuries caused by the failure of a railroad company to give certain signals at a highway crossing at five thous- and dollars, was repealed by the general act of April 7, 1881 (R. S. 1881, section 284; R. S. 1894, section 285), fixing the limit of damages in all actions for death by the wrongful act of another at ten thousand dollars.</p> <p>Same. — Care Bequired of Traveler at Grossing. — Care Stated. — Omission of Signals. — Contributory Negligence. — One who is about to cross over a railroad track at a street crossing is only required to exercise prudence and caution in proportion to the dangers incident to the crossing, with its obstructions and peculiar hazards; and so one who, being in possession of all of his faculties, drives toward a crossing with care, stops and looks and listens at a parallel side track thirty-five feet distant from the main track, but can hear no approaching train and can see none by reason of obstructing cars upon the side track, passes over the side track, again looks and listens and then cautiously approaches the main track and when near it discovers a rapidly approaching train, which so frightens his ordinarily gentle horses that, notwithstanding his strongest efforts, they run forward upon the track and the driver is killed, is not guilty of negligence, and damages may be' recovered where it appears that the defendant’s servants in charge of the train negligently omitted to give the signals required by law.</p> <p>Damages. — What Damages Not Excessive. — A recovery of nine thousand four hundred dollars for the wrongful killing of an industrious and frugal farmer, in good health, with an expectancy of thirty-eight years, who ¡leaves surviving a wife and infant child, can not, on appeal, be said to be excessive.</p> <p>Special Verdict. — Instruction as to. — Where the trial court submits two forms of special verdict with instruction to take either or modify either, or write one for themselves, but that they would “hardly be driven to this labor unless neither of the forms submitted states the facts proved in the form you prefer to state them,” the instruction is not open to the objection that it intimates to the jury that they should adopt one or the other of the forms submitted.</p> <p>Same. — Preponderance of Evidence. — Effect of Omission to Eind Eact.— An instruction that “if, on any material fact, the evidence is equal, so that there is no preponderance, you are not at liberty to find and state that fact in your special verdict,” is not erroneous, as the failure to state the existence of a fact is equivalent to a finding that the fact is not proved by a preponderance of the evidence.</p> <p>Same. — Instruction as to What Should he Returned. — An instruction to a jury, where a special verdict is demanded, that all facts asserted by the plaintiff, if proved, should be returned and the facts asserted and not proved should be omitted, is correct.</p> <p>Same. — Instruction as to Eorms Submitted. — An instruction to a jury who are directed to return a special verdict, that “You are not required to find any fact to be proved because you find the same suggested in a verdict, or in the verdict of the party you desire to favor,” and that “If you do not consider that one of the forms submitted to you speaks the truth, as you understand it, you can not adopt it as your verdict,” is not, properly construed, erroneous.</p> <p>Same. — Conclusions Disregarded. — A mere conclusion stated in a special verdict as a finding will be disregarded.</p>

<p>From the Wells Circuit Court.</p>

<p>Quieting Title. — Complaint.—Demurrer.—A complaint in the usual form to quiet title to real estate, which alleges that the defendants have no interest in the property, and no lien of any kind thereon, is not rendered bad on demurrer because it appears by subsequent pleadings and the evidence that the defendant held a valid lien for taxes paid.</p> <p>Same. — Deed.—Cannot be Varied by Parol. — Tax Lien. — Transferred by Deed Notwithstanding Oral Agreement. — A deed can not be contradicted, changed or modified by previous or contemporaneous oral negotiations, stipulations or agreements inconsistent with its terms; and so where the vendee of the holder of an invalid tax deed seeks to enforce the lien given by statute, an answer that at the time of taking his conveyance from the holder of the tax deed the plaintiff and his grantor had agreed that such conveyance should not transfer either the title or the lien for taxes, but should merely operate as a release of the lien, and that subsequently the defendant had paid to the plaintiff’s grantor the full amount due on account of the tax sale and taken to himself a quitclaim deed, is bad.</p> <p>Same. — Redemption from Tax Sale. — Recorded Deed. — Notice.—In making redemption from a tax sale the owner is bound to know, where a conveyance from the holder of a tax deed to a third person is up- . on record, that such conveyance carried to the grantee the purchaser’s lien.</p>

<p>From tlie Sullivan Circuit Court.</p>

<p>Fraudulent Conveyance. — Husband and Wife Joining in Conveyance of Husband’s Lands for the Purpose of Betaking it as Tenants by Entireties. — Exemption from Execution. — Where A, his wife joining him, conveys land held by him in fee simple to B, without consideration, who, according to agreement, immediately reconveys the same to A and wife as tenants by entireties, A not having property left, over and above Ms legal exemptions, to pay Ms unsecured debts, such conveyance was fraudulent as against such debtors, and may be set aside.</p> <p>Same. — Special Finding. — Fraud as an Ultimate Fact. — Recovery.— In an action to set aside a fraudulent conveyance, where the facts are specially found, there can be no recovery in the absence of a finding of fraud as an ultimate fact.</p>

<p>Criminal Law. — Sale of Intoxicating Liquors. — Legal Holidays. — Thirtieth Lay of May. — Statute Construed. — The 30th day of May is not a legal holiday within the meaning of section 2098, R. S. 1881, making it unlawful to sell intoxicating liquor on certain days. It is not a general legal holiday, hut is simply a legal holiday in relation to commercial paper, and for no other purpose.</p> <p>Constitutional Law. — When Such Question Will Not Be Lecided.- — Supreme Court Practice. — The appellate tribunal will not decide a constitutional question when such decision is not absolutely necessary to a disposition of the cause upon its merits.</p>

<p>From the Clark Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Supreme Court Practice. — Reversal of Judgment. — Prejudicial Error. ■ — Harmless Error. — Striking Out Paragraphs of Answer. — To authorize a reversal of the judgment it is necessary not only that the appellant should show that the court erred, but he must show that the error was of such a character that it probably injured him. The error, if any, in striking out a paragraph of answer is harmless where the special finding shows that the facts averred therein did not exist; and the same is true of a paragraph stricken out, where the material averments thereof are contained in another paragraph upon which issue is joined.</p>

<p>From the Huntington Circuit Court.</p>

<p>From the Marshall Circuit Court.</p>

<p>' Keceivee. — Sale on Execution or Decretal Order. — Deceiver to Collect Dents and Profits, etc., During Year for Dedemption. — The statute gives the owner of real estate sold on execution or decretal order the right of possession during one year from the date of sale, during which time he has the right of redemption, and it is only in a clear • case of necessity, in order to protect the rights of others, that the owner ought to he deprived of this right by taking from him his property and placing it in the hands of a receiver. If, in any event, it would be proper to appoint a receiver to collect the rents and profits during the year for redemption, the rents and profits should be paid into court for the use of the person entitled thereto.</p> <p>Same. — Sufficiency of Application. — Foreclosure of Mortgage. — Sentsand Profits. — While the allegations in an application for a receiver may be supplemented and enlarged by affidavits and oral testimony, yet the appointment can not be sustained if the allegations fail to show statutory or equitable grounds upon which.it may stand; and where the only allegations as to the appointment of a receiver, in an action to foreclose a mortgage, are “that said premises can be rented from §8 to §12 per month, and asks that a receiver be appointed by this court to take charge of said premises and collect said rent and pay the same into court to be applied on said mortgages,” no case is made justifying such appointment.</p>

<p>Evidence. — When not in Record. — Reporter's Longhand Manuscript.— Filing. — Bill of Receptions. — Where it appears from the clerk’s certificate that the reporter’s longhand manuscript is included in the transcript, but that it was not filed, and was not included in a bill of exceptions, the evidence is not in the record.</p>

<p>Contributory Negligence. — Boy Twelve Years of Age. — When Tenderness of Years and Incapacity arenot in Issue. — Complaint.— Theory of.— A boy twelve years of age may, through tenderness of years and want of capacity, be tempted by treacherous objects thrust in his way by the carelessness of others, and be incapable of discerning the presence of danger such as that to which the injured party was here exposed, viz., a gas pipe loose in the highway, poorly jointed and subject to a high pressure of gas, which was escaping and burning several feet high in the presence of the plaintiff.’ The allegations of the complaint, however, should, in such cases, be such as to make tenderness of years and want of capacity issues in the case, and these allegations should be supported by the evidence. The. mere statement that plaintiff was twelve years of age is not sufficient, especially where there are allegations as to his superior intelligence and other endowments, so strongly set forth as to make the complaint substantially the same as it would be in case of an adult.</p> <p>Same. — Instructions to Jury. — Not Relevant to Issues. — Incapacity and Tenderness of Tears. — In such case, it was error to instruct the jury, in relation to plaintiff’s contributory negligence, as if the tenderness of years and the incapacity of the plaintiff were in issue, when, in fact, they were not.</p>

<p>From the Jackson Circuit Court.</p>

<p>From the Marion Circuit Court.</p>

<p>Railboad. — Extending Street Over Bailroad Yards Containing Switches, Engine House, etc, — Injunction.—If, to extend a street as projected over the yards of a railroad company, containing side tracks, engine house, water tank, coal dock, etc., would not only increase the hazi ards of the business, but would include within the limits of said street two stalls of said roundhouse and a considerable portion of the coal dock, and would not permit the use of the water tank, without encroaching upon the street, the land can not be thus ai> propriated for street xiurposes, and such threatened appropriation may be enjoined.</p> <p>Same.— Use of 6-round for Yards, Engine House, Coal Loch, etc., a Public One. — When More than One Public Use May be Made of the Same Land. — When Not. — The use of the ground by the railroad for the purposes above mentioned is a public use, and where the use of the ground for railroad purposes and for street purposes may coexist without impairment of the first use, it may be appropriated to the use of both; but where such uses can not coexist, or where the first use is materially impaired or destroyed, the second public use will be denied.</p>

<p>From the Huntington Circuit Court.</p>

<p>From the Howard Circuit Court.</p>

<p>Agency. — Authority of Agent. — notification.—Party Pealing With One Assuming to be Agent Put on Inquiry as to Sis Authority. — Adverse Interest of Agent.— Conveyance. — Peed.—Assumption Clause. — Beal Estate. — Pleading.—Pefects Sot Cured. — L. and TV. entered into a contract witli H., December 14, 1887, by which they agreed to purchase certain land of IT. for §45,000. L. and TV. were to execute mortgages on the several lots into which the land was to be platted, which were to be first liens on the several lots, the mortgages to bear date January 1,1888, L. and TV. agreeing to assume these mortgages as apart of the purchase-price, and agreeing to expend §8,000 in one year, in platting and improving the tract, etc., H. to furnish them a deed and take the mortgages, as agreed to, as*soon as the plat was recorded and the improvements made. L., desiring to dispose of his interest, employed TV. to .procure a purchaser. TV. sold L.’s interest for §12,500, to M., June 9, 1888. June 11, 1888, L. sold his contract with M. to TV. On October 20, 1888, by agreement among H., L. and TV., M. not being present, H. made a deed for all the land to J., acting as third party, or go-between. J. executed and acknowledged the plat, and then executed to L. notes for §45,000, with specific mortgages on the several lots. L. indorsed the notes to H., and J. also executed a deed to TV. for the whole tract, which contained the clause: “Subject, however, to mortgages bearing even date herewith, * * aggregating $45,000 of principal, which the second party assumes and agrees to pay.” TV. executed a deed to M. for an undivided one-half of the plat (the relation existing between TV. and M. being that of tenants in common, and not that of partners), with assumption clause as follows: “Subject to incumbrance by mortgage of even date herewith, aggregating §48,650 and accrued interest, * * which the second party assumes and agrees to pay as his interest proportionately appears,” which deed TV. placed on record and notified M. thereof, M. never having seen the deed, and not knowing that it was to come from TV., as his contract was with L., and having no knowledge that the deed contained the assumption clause. M. from time to time sent to TV. his proportion of the expense of improving the property, also money to pay his share of the interest on the mortgage debt, and his taxes, and joined with TV. in making deeds for three lots. In February, 1890, IT. notified M. that the interest being unpaid the whole debt had become due, and also drew his attention to the assumption clause in his deed from TV., which was the first intimation M. had of such clause fixing his personal liability for the debt, believing he had bought the property subject simply to the mortgage debt. II. brings suit against M. on the assumption clause.</p> <p>I-Ield, that W. could not, in his own interests, make a deed to M. placing a heavy obligation upon M. in so doing, and then, as agent for M., accept the deed, with its obligation, putting the whole on record without M. ever seeing the deed or knowing its contents.</p> <p>Held, also, that the interests of W. were so opposed to M.’s, in this transaction, that H. was put upon inquiry to know that M. had really agreed to the assumption of the debt, and that so momentous a matter should not have been left dependent on a statement of W., whose own interests in it were so great.</p> <p>Held, also, that if W. were a general or special agent of M. in the care and management of their property, which does not appear from the facts pleaded, still that would not be enough, especially in view of the adverse interests of W., to warrant II. to take it for granted that W. was vested with the extraordinary power to assume (in M.’s name, and so as to bind him) the personal obligation to pay a debt of $25,000.</p> <p>Held, also, that as there are no facts pleaded showing that W. wasM.’s agent for any purpose, much less that he had authority to insert the assumption clause in the deed,'and no facts fromlwhichsuch authority could be inferred, the verdict finding the fact of agency can not cure the pleadings in this respect.</p> <p>Held, that ratification, like agency itself, must be clearly and affirmatively established by him who relies upon agency or ratification for the enforcement of his claim.</p> <p>Held, that M.’s claim of ownership of the property, his joinder in execution of deeds for lots, and his payment of his part of expenses, taxes, and interest, did not amount to ratification of the assumption clause, and were not incompatible with his title as tenant in common by a deed conveying the lands subject to the mortgages, none of which were done after he learned of the assumption clause in the deed, but which assumption clause he repudiated as soon as he learned of its existence, and reconveyed the property to W., abandoning about $17,000 which he had invested in it.</p> <p>Opinion on petition for rehearing by Howard, J.</p>

<p>From the White Circuit Court.</p>

<p>From the Grant Circuit Court.</p>

<p>Railroad. — Standing Timber Close to Right of Way. — Possibility of Falling on Railroad Track. — Right of Railroad Company to Cut Down.— Damgges. — Injunction.—Where a railroad company, by its agents, without notice or permission, entered upon land adjoining its right of way and cut down growing timber, the only reason for such act being fear that the timber might fall upon the railroad track, owing to the close proximity of such timber to the railroad company’s right of way, the railroad company is liable in damages for the trees cut down, and may be enjoined from cutting other of such timber; the danger not being shown to be immediate and probable, but remote and barely possible, which was not sufficient to justify the acts complained of.</p>

<p>From the Wayne Circuit Court.</p>

<p>Geavel Road. — Sufficiency of Petition. — Part of Eoad Over Eoute where no Highway Previously Existed. — No Power in Such Proceeding to Locate and Establish Highway. — Where a petition for the establishment of a free gravel road shows on its face that one mile of the proposed improvement is to be over a route where no highway exists, but that it will connect with and join two existing highways, both of which are included in the petition, but it is not shown in the report, nor does it appear in the order of the board of commissioners establishing the improvement, neither is it found by the decree of the circuit court, that this mile of road is laid upon new ground for the purpose of straightening any public highway, nor that better drainage will be secured thereby, nor that any route of travel for the public will be shortened, nor that there will be any road changed, improved or affected by this particular mile of improvement, — the petition did not state facts sufficient, and the court acquired no jurisdiction over the subject-matter of the proceeding. The board of county commissioners has no power, under the statute, to construct a gravel road over a route where no highway previously existed, except for shortening, straightening, etc., as above stated.</p>

<p>Prom the Boone Circuit Court.</p>

<p>From the Madison Circuit Court.</p>

<p>Bill ox Exceptions. — Failure to File With Cleric. — Not Properly in Record. — If it does not appear that a bill of exceptions was filed with the clerk of the trial court, it is not properly in the record, and no question upon the evidence can be entertained.</p>

<p>Appeal. — Dismissal of. — Defect of Parties Appellant. — All parties entitled to appeal, i. e., all parties against whom judgment is rendered, must be brought before the appellate tribunal as appellants in the same appeal, and notice served on them, or the appeal will be dismissed.</p>

<p>Prom tlie Marshall Circuit Court.</p>

<p>From tlie Marion Circuit Court.</p>

<p>Corporation. — Promoter's Contrast. — Ratification of. — A contract made by the promoters of a corporation previous to its organization, and ratified and confirmed by it afterwards, is binding upon the corporation.</p> <p>Same. — Contracts with, Promoters.- — Payment of Promoter's Services. — • Purchase of Property from. — A corporation has the right to make contracts with its promoters to pay them for their- services and to purchase property from them.</p> <p>Same. — -Contract.-—-Construction of Waterworks in Consideration of Stock and Bonds.— Value of Stock. — Action by Receiver. — Fraud.—Where a contract is entered into between a waterworks company, which at the time has no indebtedness, and another, whereby the latter, in consideration of the construction of the waterworks plant, receives a certain amount in bonds and a certain amount in paid up stock, and a statement is filed in the county clerk’s office showing that the stock is paid up by the execution of the contract for the construction of the works, in pursuance of section 3861, R. S. 1881, thereby giving notice to all concerned, a receiver of the corporation, suing for the benefit of creditors, can not recover from a holder the value of the stock unless the fact of fraud in the transaction is proved and found.</p>

<p>From the Orange Circuit Court.</p>

<p>From the Morgan Circuit Court.</p>

<p>County Commissioners. — Commissioners’ Court. — Save Only Statutory Power.— Void Act. — Attempt to Change or Vacate Judgment. — The board of county commissioners has no power other than that conferred upon them by statute. Such board has no statutory power to change, vacate, or disregard its order or judgment after it has been made and recorded, and an act of the board in attempting to do so is void; the only remedy of an aggrieved party, in such case, is by appeal.</p> <p>Same. — Appeal.—Dismissal of. — Harmless Error.— Void Orders. — Where an appeal is taken from the order of the board setting aside all its other orders made after the final order or judgment has been made and entered, a dismissal of the appeal can not harm appellant, for the appellant could have no other purpose in the appeal than to reinstate the void proceedings had since the rendition of the final judgment.</p>

<p>From the Ohio Circuit Court.</p>

<p>Negligence. — Licensee.—Trespasser.—Duty to. — Bailroad.—Gomplaint, Theory of. — Personal Injury. — Where the complaint in an action against a railroad company, for personal injury,, was drawn upon the theory of negligence by the railroad company causing the injury to the plaintiff, a servant of C., engaged at the time with C. in loading hogs in a ear furnished by the railroad company for C. upon Ms request, while the answers to interrogatories establish that, without notice to the railroad company of an intention to load the hogs, such servant and one of his employers pushed a car, not furnished for C., up to the chute and loaded the same, — the plaintiff, if not a trespasser, was amere licensee, to whom the defendant owed no protection from negligence.</p>

<p>From the Wayne Circuit Court.</p>

<p>Prom the Parke Circuit Court.</p>

<p>Special Finding.- — Conclusions of Law. — When Disregarded. — A statement in a finding of facts that if the defendant is permitted to do certain things the plaintiff is without any adequate remedy, except the one he seeks to avail himself of .is not a finding of fact but a conclusion of law and has no effect.</p> <p>Injunction. — Contract.—City.—Bight to Substitute Electric for Gas Lights. — Indefinite Terms. — Where a contract between a city and a gas company for lighting the city streets for a term of twenty-three-years provides that if, at any time thereafter the city shall determine that electric lights shall be substituted for gas lights the gas company “shall make the substitution of such electric lights instead of as many street lamps as may be agreed upon between the city and the company (the price at which said electric lights shall be-furnished to be fixed by an equitable agreement between the city and the company,”) such contract is not sufficiently certain to be-specifically enforced, and if the city determines to substitute electric lighting prior to the expiration of the Contract, injunction will not lie, at the suit of the gas company, to restrain the city from proceeding to secure such lighting by competitive bids.</p> <p>Same. — Adequate Bemedy at Law. — When an injury may be fully compensated in an action at law for damages where the wrongdoer is. solvent, the extraordinary remedy of injunction will not lie.</p>

<p>Masterand Servant. — Railroad.—Unblocked Frog. — Injury to Brakeman. — Ignorance of Blocking Device. — Assumption of Bisk. — A brakeman upon a railroad not using blocks in its frogs and switches, who is killed in the line of his service by getting his foot caught in an unblocked frog, and who at the time of the accident had no knowledge that such protecting devices as blocks were in use-upon any railroad, will be held to have assumed the risk, although-it is averred that he had no time or opportunity to observe whether or not the particular frog was blocked.</p> <p>Same. — “Kicking” Cars Into Switch. — Buie of Company. — Where a freight conductor gives an order to place cars upon a side track, and couple them with others standing upon said side track, without instructions as to the manner of doing it, and the trainmen in executing the order make a “kicking” switch, and a brakeman, voluntarily going in front of the detached, uncontrolled, and rapidly moving cars to make the coupling gets his foot fastened, in an unblocked frog, and is run down and killed, an action will not lie-against the company-, even though the latter had in force no rule prohibiting the making of switches of the character alleged.</p> <p>Same. — Fellow-Servants. — Incompetent Fellow-Servant. — Voluntarily Going into Danger Caused by. — Attempting to Make Perilous Coupling., ■ —An engineer is a fellow-servant of a brakeman, and a recovery against the railroad company for the death of the brakeman by a negligent act of the engineer in kicking cars into a siding at an excessive speed, even if the company had knowledge of his incompetency, and the brakeman had not, will not be allowed where it appears that such brakeman being experienced, and with knowledge of the excessive speed, and of the danger of attempting to-couple the detached cars to others standing upon the sidetrack, undertook such perilous task as a brakeman, even when acting in pursuance of an order to couple the cars, as he is not bound to do sounder such dangerous conditions.</p>

<p>Fraudulent Conveyance. — Preference of Creditors. — Sons Preferring Pather. — Where there is a bona fide preference of creditors by a failing firm, the fact that the creditor preferred was the father of the debtors does not of itself render payment to him fraudulent.</p> <p>Same. — Burden of Proof. — The fact that the grantee was the father of the debtors does not shift the burden of proof from those alleging fraud, and require the grantors and grantee to show the good faith of the transaction.</p>