the offense was not deserving of punishment by imprisonment in the state prison they should proceed to return a verdict precisely as if the indeterminate sentence law or the reformatory act had never been passed. The court trying this case proceeded just as if the acts in question had never been passed. And that was right, if the court thought imprisonment in the state prison was greater punishment than the offense proven, under all the circumstances disclosed by the evidence deserved. The law presumes that the trial court decided correctly until the contrary is made to affirmatively appear in the record. The contrary does not appear to the presumption that the court inflicted only a fine and a jail sentence because it was of opinion that a penitentiary sentence was greater punishment than the offense proven under all the circumstances disclosed by the evidence deserved. Hence the class of felonies to which this case by the decision of the trial court is made to belong does not fall within the purview of the indeterminate sentence law. And for the same reason it does not fall within the provisions of the reformatory act. Therefore none of the questions so elaborately discussed in the briefs as to the effect of the indeterminate sentence law upon punishments and penalties of that class of felonies falling within its provisions committed before its enactment, and prosecuted thereafter, arises in the case now before us, and for that allsufficient reason we do not decide them. The judgment is therefore affirmed.

MEREDITH v. MEREDITH. (Supreme Court of Indiana. April 20, 1898.) CONSTRUCTIVE TRUST-ADVANCEMENT TO WIFE.

A conveyance to a husband by his wife's father, as an advancement to her, does not create a constructive trust.

Appeal from circuit court, Jay county; J. W. Headington, Judge.

Action by Mariah G. Meredith against Wilbur L. Meredith. Judgment for defendant, and plaintiff appoals. Affirmed.

Joseph H. Self and La Follette & Adair, for appellant. Williamson & Jaqua, for appellee.

HOWARD, C. J. This is an action by appellant to quiet her title to certain described real estate. In the complaint it is alleged, among other things, that in the year 1848 appellant's father, who was then the owner of the land in controversy, desired to, and did, give said land to her, in consideration of the fact that she was his daughter, and did charge her with said land as an advancement out of his estate; that, however, when he made the deed of conveyance for the same, to wit, August 8, 1848, he conveyed the same to Peter S. Meredith, her husband, who took the

said title, and held it for and in trust for her, and that each of said parties, to wit, herself, her husband, and her father, treated said land as having been given to her; that she and her husband lived on said land until his death; that her said husband made a will, which was duly probated after his death, by which he attempted to dispose of said land, and to give some interest therein to appellee, which devise was made without her knowledge or consent, and creates a cloud upon appellant's title to said land, and upon which appellee is setting up his title thereto; that said land was held by her husband for her, and that he paid nothing therefor; that appellant took said land as an advancement out of her father's estate, and receipted for the same, and was charged therewith by her father. To this complaint the court sustained a demurrer for want of sufficient facts, and, appellant refusing to plead further, judgment was rendered against her.

The facts stated in the complaint, omitting the conclusions of the pleader, show simply that appellant's father made an advancement to her out of his estate by deeding the land in controversy to her husband. No express trust in the husband is shown, and it is not contended that there was any implied trust; but counsel suggest, rather than argue, that there is a constructive trust shown. The very cases, however, cited by counsel, show that there was no constructive trust. Mescall v. Tully, 91 Ind. 96; Wright v.. Moody, 116 Ind. 175, 18 N. E. 608. In counsel's brief the following is cited from Judge Mitchell's opinion in the latter case: "The element essential to create a constructive trust is that fraud, either actual or constructive, must have intervened. Such trusts are raised by courts of chancery only in cases where it becomes necessary to prevent a failure of justice, and, in most cases, where there is no intention or agreement of the parties to create such a relation. Cox v. Arnsmann, 76 Ind. 210; Tinkler v. Swaynie, 71 Ind. 562; 1 Perry, Trusts, § 166; 2 Pom. Eq. Jur. § 1044." Nothing from which fraud can be implied is alleged in the complaint. On the contrary, it is shown that appellant knew that the deed was made to her husband. A father, moreover, may make an advancement to his daughter by deeding land to her husband; and this even without her knowledge or consent. There is no fraud, per se, in such a transaction; and, if fraud actually exists in connection therewith, the same must be alleged and proved. Baker v. Leathers, 3 Ind. 558; Hileman v. Hileman, 85 Ind. 1; Noe v. Roll, 134 Ind. 115, 33 N. E. 905; Lewis v. Stanley, 148 Ind. 351, 45 N. E. 693, and 47 N. E. 677. Judgment affirmed.

MONKS, J., took no part in the decision of this case.

1. A resale of mortgaged land under an or dinary execution, instead of an alias decretal order authorized by Burns' Rev. St. 1894. § 782 (Rev. St. 1881, § 770), to satisfy a deficiency after redemption by the mortgagor from the first sale, is an irregularity which is waived by failure to object before sale.

2. Burns' Rev. St. 1894, § 1119 (Rev. St. 1881, § 1105), prohibiting the sale of a mortgagor's equity of redemption to satisfy the mortgage, does not preclude a resale to satisfy a deficiency after redemption by the mortgagor from the first sale.

Appeal from circuit court, Noble county; W. L. Penfield, Special Judge.

Action by Nancy A. Ringle against John Mitchell to quiet title to certain land. Judgment for plaintiff, and defendant appeals. Reversed.

A. B. Young and Zimmerman & Goodwin, for appellant. L. W. Welker and G. L. Graves, for appellee.

MONKS, J. Upon the trial of this cause, instituted by appellee against appellant, the court made a special finding of the facts and stated conclusions of law thereon in favor of appellee, and, upon motion, rendered judgment in favor of appellee. The errors assigned call in question the correctness of the conclusions of law.

The special finding, so far as is necessary to the determination of the question presented, is substantially as follows: On June 6, 1889, appellant recovered a judgment in the Noble circuit court against Peter Ringle for $2,004.16, and a decree of foreclosure of a mortgage on certain real estate in Noble county securing the said indebtedness against said Peter Ringle and appellee, his wife. It was provided in said judgment and decree that said mortgaged real estate, or so much thereof as should be necessary, should be sold by the sheriff upon a certified copy of said judgment, and decree in like manner as lands are sold upon execution, for the satisfaction of said judgment, interest, and costs; and that, in the event said mortgaged real estate failed to sell for a sum sufficient to pay said judgment, interest, and costs, the residue thereof remaining unpaid shall be levied of the goods and chattels, lands and tenements, of said Peter Ringle, subject to execution. An order of sale was issued on said decree of foreclosure, and the real estate described therein advertised and sold by the sheriff on January 2, 1891, to appellant, for $1,436.70. On the 1st day of January, 1892, said Peter Ringle, the judgment debtor, under the provisions of the statute, redeemed the property sold under said decree, and on the same day, by deed, conveyed to appellee, his wife, that part of said

real estate in controversy in this action. Afterwards, on April 13, 1892, an execution against Peter Ringle was issued on said Judgment and decree of foreclosure to the sheriff of said county, who, after advertising the real estate ordered sold in said decree, of which the real estate conveyed by Peter Ringle to appellee was a part, sold the same on the 9th day of September, 1892, to appellant, the tract in controversy being bid off at $300; and afterwards, on March 15, 1894, the sheriff, by virtue of such sale, executed a deed to appellant for said real estate. The court stated, as a conclusion of law on said facts, that the sale under said execution and the sheriff's deed were void, and rendered judgment in favor of appellee, quieting her title in and to said real estate conveyed to her by her husband, as against said sheriff's deed. It is clear that when the real estate sold by the sheriff on said decretal order was redeemed from such sale by Peter Ringle, the owner thereof, such sale was wholly vacated as to said real estate, and the same was subject to sale upon a decretal order for the payment of the sum unpaid, the same as if no sale had been made. Burns' Rev. St. 1894, § 782 (Rev. St. 1881, § 770); Green v. Stobo, 118 Ind. 334, 20 N. E. 850; Hervey v. Krost, 116 Ind. 268, 19 N. E. 125; Ewing v. Bratton, 132 Ind. 345, 31 N. E. 562.

After the redemption of said real estate appellant was entitled to an alias decretal order to make the balance due on said judgment and decree by the sale of the mortgaged property. An ordinary execution, however, was issued on said judgment and decree of foreclosure, and the property in controversy was sold thereon. Did the sale on such execution and the sheriff's deed thereunder give any title to appellant to the property in controversy? In this state the holder of a mortgage may either sue upon the mortgage and obtain a personal judgment against any party to the same liable upon any agreement for the indebtedness secured by the mortgage, and also a decree of foreclosure of the mortgage and sale of the mortgaged property to pay said mortgage and judgment and cost of the action (Burns' Rev. St. 1894, § 1111; Rev. St. 1881, § 1097), or he may sue and recover judgment on the debt secured by the mortgage without a foreclosure of the mortgage. If he forecloses his mortgage, and takes a personal judgment, as provided in section 1111 (1097) supra, the court orders that the mortgaged real estate, or so much thereof as may be necessary, be first sold before levy of execu tion upon other property of the defendant. And in such cases the statute provides that a copy of the order of sale and judgment shall be issued and certified by the clerk under seal to the sheriff, who shall sell the mortgaged premises, or as much thereof as may be necessary to satisfy the judgment,

interest, and costs, as upon execution, and, if any part thereof remain unsatisfied, the sheriff shall forthwith proceed to levy the residue of the other property of the person or persons against whom the personal judgment was rendered. Burns' Rev. St. 1894,

1113, 1114 (Rev. St. 1881, §§ 1099, 1100). There must be a sale of the mortgaged property under such decree, and the balance due on the judgment ascertained, before any of the other property of the mortgagor can be levied upon and sold to satisfy said judgment. Thomas v. Simmons, 103 Ind. 538, 542-545, 2 N. E. 203, and 3 N. E. 381. If he pursues the course last mentioned, and takes a personal judgment on the indebtedness without a foreclosure of the mortgage, the mortgagor's equity of redemption in the mortgaged real estate cannot be sold on an execution issued on such judgment. Burns'

Rev. St. 1894, § 1119 (Rev. St. 1881, § 1105); Reynolds v. Shirk, 98 Ind. 480; Pence v. Armstrong, 95 Ind. 196, 209; Boone v. Armstrong, 87 Ind. 168; Linville v. Bell, 47 Ind. 547. Such judgment is not a lien on the mortgaged real estate. Rooker v. Benson, 83 Ind. 250, 254.

The judgment and decree were rendered as required by sections 1111, 1113, Burns' Rev. St. 1894 (sections 1097, 1099, Rev. St. 1881). The second sale of the mortgaged real estate, the one assailed by appellee, was made in all respects as required by the decree and the statute, except the writ on which the same was sold, which was, in form, an ordinary execution instead of a copy of the order of sale and judgment. This was a mere irregularity, for which the execution might perhaps have been set aside in a direct proceeding brought for that purpose by the proper party before the sale. In Sowle v. Champion, 16 Ind. 165, the process issued on a judgment and decree of foreclosure was not in the form required by statute. It contained no copy of the order of sale, but simply stated the rendition of the judgment and decree of foreclosure, and commanded the sheriff "to levy the money of the defendant's property and the sale of said premises in his county subject to execution," etc. This court held in that case that said writ was not void, but merely voidable for irregularity, and that, as no motion was made to set it aside, the sale thereon was valid. When any property levied upon by execution remains unsold, and the sheriff returns said execution, it is provided by statute that the lien of the levy shall continue, and the clerk, unless otherwise directed by the plaintiff, shall forthwith issue another execution, reciting the return to the former execution, the levy, and the failure to sell, and directing the sheriff to satisfy the judgment out of the property unsold, if the same is sufficient; if not, then out of any other property of the judgment debtor subject to execution. Burns' Rev. St. 1894, §§ 752, 753 (Rev. St. 1881, §§ 740, 741).

It was held under said sections by this court in Richey v. Merritt, 108 Ind. 347, 9 N. E. 368, that the levy of an execution upon property of sufficient value to pay the judgment creates a presumption of the satisfaction of the judgment, and operates as such until the levy is legally disposed of, and an alias execution issued upon such judgment before the levy is disposed of is irregular and voidable, and may be set aside upon motion, before the property is sold under it; but, if the exe cution defendant waives his right to have such alias execution set aside, he cannot, after the sale, question the validity thereof on account of the irregular and voidable character of the execution. See, also, Kerr v. Commissioners, 8 Biss. 276, 283, Fed. Cas. No. 7,733; 1 Freem. Ex'ns, § 50. It would seem clear, therefore, that, if an alias execution is issued instead of a venditioni exponas, which is an order to sell the property taken under a former execution, as provided by section 753 (741) supra, it is only irregular and voidable, and not void, an execution issued upon a judgment and decree of foreclosure would be irregular and voidable, but not void. Here the process was issued under the seal of the court, and stated the recovery of judgment, and when and in what court recovered, and fully identified the proceeding upon which it was issued, a reference to which would disclose the fact that the same was a judgment and decree of foreclosure, and that the real estate described therein must be first sold before any other property of the mortgagor could be levied upon. The sale of the mortgaged real estate was made on said process in all respects as required by the decree and the statute. The facts stated in the. special finding do not show any excuse for the failure of appellee to take proper steps to set aside the execution, or to otherwise prevent the sale of said real estate thereon. The reasonable inference is that appellee had notice of all the irregularities of said execution, and that she made no objection thereto until the commencement of this action, after the deed was executed, which was two years after said execution was issued. A defendant may waive irregularities in an execution, and, if he do not procure the same to be set aside before sale, he will be presumed to. have waived them. Doe v. Dutton, 2 Ind. 309, 315. Appellee took no steps to have the execution set aside, but permitted the property in controversy to be sold thereunder to satisfy said judgment and decree; and she cannot in this action, commenced long aftersaid execution was issued and sale had thereon, question the validity of such sale on account of the irregularities and voidable character of the writ upon which the sale was made. Richey v. Merritt, 108 Ind. 352, 9 N. E. 368, and cases cited; Johnson v. Murray, 112 Ind. 154, 13 N. E. 273; Rose v. Ingram, 98 Ind. 276; Martin v. Prather, 82 Ind. 535; Mavity v. Eastridge, 67 Ind. 211; Lindley v.

Kelley, 42 Ind. 294; Culbertson v. Milhollin, 22 Ind. 362; Sowle v. Champion, supra; Doe v. Dutton, supra.

Appellee insists that the sale of said real estate upon said execution was void under section 1119, Burns' Rev. St. 1894 (section 1105, Rev. St. 1881), which provides that, whenever an execution shall issue upon a judgment recovered for a debt secured by a mortgage on real property, the plaintiff shall indorse thereon a brief description of the mortgaged premises, and the equity of redemption shall in no case be sold on such execution. Construing this section with the other sections concerning the foreclosure of mortgages, it is evident that the same only applies to a judgment at law where there is no foreclosure of the mortgage. Where there is a personal judgment against the mortgagor or other person for the debt secured by the mortgage, and a decree of foreclosure under the provisions of sections 1111, 1113, Burns' Rev. St. 1894 (sections 1097, 1099, Rev. St. 1881), the said section could not apply, for the reason that the equity of redemption of the mortgagor in the mortgaged premises cannot be sold on any writ issued on such judgment and decree. The same gives no authority to sell such equity of redemption. On the contrary, the decree expressly provides, and the statute requires, that "the mortgaged premises, or so much thereof as necessary to be sold to satisfy the mortgage and judgment and cost, be first sold, before levy of execution upon other property of the defendant," and that any balance then remaining unsatisfied after the sale of the mortgaged premises shall be levied of any property of the mortgage debtor. A sale of the mortgaged premises on any writ issued on such judgment and decree, though said writ may have been voidable for irregularities, and a sheriff's deed thereunder, conveys to the purchaser the title covered by the mortgage. This court in Linville v. Bell, supra, in speaking of said section, said: "This section, as we understand it, contains a prohibition against the sale of the equity of redemption on an execution issued on a judgment recovered for the mortgage debt without a foreclosure of the mortgage." Besides, in this case, as we have shown, the estate sold and conveyed by the sheriff on said writ issued on said judgment and decree of foreclosure was that covered by the mortgage, the same as if said writ had contained a certified copy of judgment and order of sale, and not merely the mortgagor's equity of redemption therein. It follows that the court erred in its conclusions of law. The death of appellee since the submission of the cause having been shown, the judgment is reversed as of the term at which the submission was made, with instructions to the court below to restate its conclusions of law, and render judgment in favor of appellant In accordance with this opinion.

CHICAGO & S. E. RY. CO. v. HIGGINS. (Supreme Court of Indiana. April 21, 1898.) JUSTICES OF THE PEACE-JUDGMENTS-JURISDICTION ASSIGNMENT-PARTIES-PLEADING. 1. Burns' Rev. St. 1894, § 372 (Rev. St. 1881, $369), provides that, "in pleading a judgment or decision of a court or officer of special jurisdiction, it shall be sufficient to allege generally that the judgment or decision was duly given or made." Held, that a complaint on a judgment rendered by a justice should state that the judgment was duly given or made, or show that the justice had jurisdiction over defendant therein.

2. Burns' Rev. St. 1894, § 612 (Rev. St. 1881, § 603), provides that a judgment of a justice may be assigned on or attached to the entry of such judgment, and that the assignment, when attested by the justice, shall vest the title in the assignee. Held, that a complaint on a judgment rendered by a justice which alleges an assignment of the judgment, but does not state that it was attested by the justice, shows only an equitable title in the assignee.

3. In an action by an equitable assignee of a judgment, the assignor must be made a party defendant.

Appeal from circuit court, Boone county; Stephen Neal, Judge.

Action by Moses P. Higgins against Chicago & Southeastern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. R. Crawford and U. C. Stover, for appellant. C. M. Zion, for appellee.

MONKS, J. This action was brought by appellee against appellant to enforce the payment of a judgment alleged to have been rendered by a justice of the peace against the Midland Railway, to whose rights and liabilities appellant has succeeded. Judgment was rendered against appellant. The court overruled a demurrer to the complaint for want of facts and for defect of parties defendant in this: that George L. Weitzel should have been made a defendant in said action; and this ruling is assigned as error.

It is first insisted by appellant that the complaint was insufficient because there are no averments showing that the justice of the peace by whom the judgment was rendered had in any way acquired jurisdiction over the judgment defendant, the Midland Railway Company. It is provided by section 372, Burns' Rev. St. 1894 (section 369, Rev. St. 1881), that, "in pleading a judgment or decision of a court or officer of special jurisdiction, it shall be sufficient to allege, generally, that the judgment or decision was duly given or made. If the allegation be denied, the facts conferring jurisdiction must be proved at the trial." Since the taking effect of this section of 1853 it has not been necessary, in pleading a judgment of a justice of the peace of this or another jurisdiction, to allege the facts conferring jurisdiction, provided it is alleged "that said judgment was duly given or made." Hopper v. Lucas, 86 Ind. 43, and cases cited; Crake v. Crake, 18 Ind.

156; Shockney v. Smiley, 13 Ind. App. 181, 41 N. E. 348. It was not alleged in the complaint that the judgment was duly given or that it was duly made. Neither was there any averment showing that the justice of the peace had any jurisdiction over the Midland Railway Company. It is true that where it appears that inferior courts have jurisdiction over the subject-matter, and have acquired jurisdiction over the persons of the parties to the action, the same presumptions are indulged in favor of the regularity and validity of the proceedings as are indulged in favor of the proceedings of courts of superior jurisdiction. Johns v. State, 104 Ind. 557, 560, 4 N. E. 153, and cases cited. But no presumptions will be indulged that courts of justices of the peace have acquired jurisdiction of the parties. This must be shown by the facts alleged in the pleading, or the statutory averment that the judgment was duly made or given. Hopper v. Lucas, supra, page 46, and cases cited. It is clear that the complaint was not sufficient to withstand the demurrer for want of facts.

It is alleged in the complaint that the judgment was rendered by the justice of the peace in favor of George L. Weitzel, and that a transcript thereof was filed in the office of the clerk of the circuit court of Boone county, Ind., and recorded in the order book of said court; and that afterwards said "George L. Weitzel, for value received, sold, assigned, and transferred by indorsement in writing on the record of said judgment, where recorded in the office of the clerk of said court, all his right, title, and interest in and to said judgment, to Moses P. Higgins, the plaintiff herein, who is the owner and holder of said judgment and entitled to the payment thereof." Counsel for appellant insist that said allegations only show an equitable assignment of the judgment to appellee, and not an assignment under the statute, and that, therefore, George L. Weitzel should have been made a party defendant in the court below to answer to his interest in said judgment, as required by section 277, Burns' Rev. St. 1894 (section 276, Rev. St. 1881). The statute concerning the assignment of judgments of a court of record and of a justice of the peace is that they "may be assigned by the plaintiff or complainant, and the assignees thereof, successively, on or attached to the entry of such judgment or decree; and the assignment, when attested by the clerk of the court, or such justice of the peace, shall vest the title to such judgment or decree in such assignee thereof, successively." Section 612, Burns' Rev. St. 1894 (section 603, Rev. St. 1881). Before the enactment of said section, judgments were not assignable so as to vest the legal title in the assignee. Lapping v. Duffy, 47 Ind. 51, 52; Reid v. Ross, 15 Ind. 265. Under our Code, an equitable assignee of a judgment may maintain an action thereon. Lapping v. Duffy, supra, 52, 53, and cases cited. To pass the legal title 50 N.E.-3

to a judgment, the requirements of said section must be complied with. Kelley v. Love, 35 Ind. 106, 107; Burson v. Blair, 12 Ind. 371, 373. Under the statute, the legal title vests in the assignee when the required assignment is attested by the proper officer. As there is no allegation showing that the assignment was attested by the proper officer, the same only vested an equitable title in the appellee. The rule is that, in an action by an equitable assignee, the assignor should be made a party to answer as to his interest. Kelley v. Love, supra, pp. 107, 108; Clough v. Thomas, 53 Ind. 24; Nelson v. Johnson, 18 Ind. 329. It would seem, therefore, that George L. Weitzel should have been made a party defendant to answer as to his interest. Kelley v. Love, supra, 107, 108. Judgment reversed, with instructions to sustain the demurrer to the complaint.

HARN v. WOODARD, County Treasurer. (Supreme Court of Indiana. April 19, 1898.) TAXATION-BUILDING AND LOAN ASSOCIATIONSSTOCK.

Burns' Rev. St. 1894, § 8422, relating to corporations in general, makes all stock, except where some other provision is made by law, taxable in the corporate name. Section 8507 provides that building, loan-fund, and savings associations shall be assessed on the surplus of receipts over loans, and declares that neither said associations nor the shareholders therein shall be liable to other taxation on said shares of stock. Held, that this was not a limit on the right to further tax the holders of stock, or those to whom building associations were indebted, and it was proper to tax a nonborrowing member for his holdings, which are in the nature of a credit, and it was immaterial whether the stock was fully paid up.

Appeal from circuit court, Monroe county; W. H. Martin, Judge.

Action by Albert S. Harn against Joseph S. Woodard, treasurer of Monroe county, to enjoin the collection of taxes. From a judgment entered on an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Louden & Louden and Duncan & Batman, for appellant. Henley & Wilson, for appelIee.

HACKNEY, J.

The appellant, Harn, sued the appellee, Woodard, as treasurer of Monroe county, to enjoin the collection of taxes for the year 1897 upon certain running stock in a building association, not borrowed upon by Harn as the holder thereof. The lower court sustained a demurrer to the complaint, and that ruling presents the only question for review.

One of the questions urged by the plaintiff is that stock of this character is assessable to the building association, and not to the holder thereof. To this proposition are cited sections 8422, 8507, Burns' Rev. St. 1894.