the defendants were not legally elected, is a negative allegation. It is, however, well settled that, where a negative is essential to the existence of a right, the party claiming the right has the burden of proving such negative. City of New Albany v. Endres, 143 Ind. 203, 204, 42 N. E. 683, and cases there cited. Therefore, there was no cause of action stated by the complaint, either for injunction or for a money judgment. Petition overruled.

else may be said of the facts stated in either paragraph of the information, in the case under consideration they fail to show any cause or right of action which appellee's relators might or could enforce against the appellants. It is not enough that the information should state such facts as would have required the appellants, in a suit or proceeding instituted on behalf of the state by the proper prosecuting attorney, to show by what warrant they claimed to exercise the rights, privileges, and franchises of a turnpike corporation; for these facts were wholly insufficient to give the relators any cause or right of action against appellants. Upon the facts stated in each paragraph of the information, we are of opinion that the legal existence of the turnpike company named therein could only be inquired into at the suit of the state, instituted by the proper prosecuting attorney, and that neither the appellees, nor any other private person, can maintain such suit." To the same effect are Hon v. State, 89 Ind. 249; Williamson v. Association, Id. 389; Baker v. Neff, 73 Ind. 68; White v. State, 69 Ind. 273. So that it makes no difference whether we attempt to uphold the complaint on the ground that it seeks an injunction or the recovery of the $1,000, because the right to the injunction is only reached by proving that the appellees were not legally elected to the corporate offices the functions and duties of which they have been exercising. And so, too, if we attempt to uphold it solely on the ground that it seeks the recovery of a money judgment for the $1,000, the right to so recover can only be reached by proving that appellees were not legally elected to the corporate offices mentioned, and hence had no right to exercise the duties and enjoy the franchises of the corporation. So, the right to question the legality of the election of those officers, or the right to question their power and authority to exercise corporate functions, as we have seen, cannot be done without filing an information in the name of the state, and that was not done in this case. It is true, the allegation of the complaint essential to the right of the plaintiff

RUNNER v. SCOTT.

(Supreme Court of Indiana. May 17, 1898.) APPEAL-REVIEW-PRESUMPTIONS-ATTACHMENTABANDONMENT-NOTICE-MORTGAGEE

PENDENTE LITE.

1. Where a demurrer to a pleading has been overruled, though special findings of facts are made with conclusions of law thereon, to which conclusions no exceptions are taken, the demurrer may be considered on appeal.

2. Where a court of general jurisdiction assumes the right to issue a writ of attachment and order the sale of the land attached, the validity of such action will be presumed until the contrary is alleged and proved.

3. An attachment was issued against the property of a partnership in a certain county in a suit against one of the partners, and subsequently a receiver was appointed for the partnership, and the attached property was turned over to the receiver. Held, that the attachment proceedings were not thereby dismissed nor abandoned, and that under Rev. St. 1894, § 931 (Rev. St. 1881, § 919), another order of attachment could be issued to the sheriff of another county, and property of the debtor taken thereunder.

4. Where an attachment suit is begun against a member of a firm without personal service, and firm property is attached, which is subsequently turned over to a receiver of the firm, and another order of attachment is taken out. and property of the defendant in another county taken under it, and the receiver reports that the amount claimed by plaintiff is due him, which report the court passes on, and orders the property seized under the second attachment sold, no third party can be heard to complain of the transaction.

5. Where, in a collateral attack upon the action of a court in ordering property sold which had been seized under a writ of attachment, it is not alleged that the reasons urged why the action is invalid do not appear of record, it will be presumed that they do appear of record, and that the record shows that the court was warranted in its action.

6. Notice to a defendant in attachment is sufficient if served before judgment.

7. A mortgagee who takes a mortgage upon property after it has been attached is in no better position to attack collaterally the attachment proceedings than the mortgagor would be.

Appeal from circuit court, Howard county; W. W. Mount, Judge.

Action by Morton E. Runner, assignee of the Commercial Bank of Oxford, against Everett G. Scott, executor of the last will of James Scott. From a judgment for defendant, plaintiff appeals. Affirmed.

Haywood & Burnett, for appellant. Moon & Wolf, for appellee.

HOWARD, C. J. This was an action brought by the appellant to enjoin the enforcement of a judgment in attachment. On the overruling of a demurrer to the complaint and the filing of an answer in general denial, the cause was submitted to the court. There was a special finding of facts, with conclusions of law against the appellant, and, over a motion for a venire de novo and a motion for a new trial, judgment was rendered in accordance with the conclusions of law.

It is contended by the appellant that the court erred in its conclusions of law, and also in overruling the motion for a venire de novo and the motion for a new trial. We are, however, first met with a contention of appellee, who has assigned as cross error that the court overruled his demurrer to the complaint. Counsel for appellant intimate that the sufficiency of the complaint under this cross assignment will not be considered, for the reason that there was a special finding of facts with conclusions of law thereon, and because it has been frequently decided that errors in overruling demurrers to pleadings, when there is a special finding or a special verdict, are not material, as a correct statement of the law upon the facts found would cure the error, if any had been committed, in the ruling upon the demurrers. Scanlin v. Stewart, 138 Ind. 574, 37 N. E. 401, and 38 N. E. 401; Woodward v. Mitchell, 140 Ind. 406, 39 N. E. 437; Ross v. Banta, 140 Ind. 120, 34 N. E. 865, and 39 N. E. 732; Walling v. Burgess, 122 Ind. 299, 22 N. E. 419, and 23 N. E. 1076; State v. Vogel, 117 Ind. 188, 19 N. E. 773; Railway Co. v. Downey, 18 Ind. App. 140, 47 N. E. 494; Cox v. Hayes, 18 Ind. App. 220, 47 N. E. 844; Smith v. Manufacturing Co., 148 Ind. 333, 46 N. E. 1000. But by the rule thus stated, supported, as it is, by the authorities cited, it is not to be understood that good pleadings are not required where there are special findings, quite as well as where the finding is general. By saying that an error made in overruling a demurrer to a pleading is not material where there is a special finding, inasmuch as a correct conclusion of law upon the facts found would cure the error, if any, the courts do not mean, as the cases cited will show, that correct pleadings may be dispensed with, but simply that, since one who excepts to conclusions of law thereby admits that the facts have been correctly found, it will in general be presumed that the facts in issue are correctly stated, and hence that, in considering the correctness of the conclusions of law, all questions that could be raised on the sufficiency of the pleadings will necessarily be considered. It is evident that, if the facts put in issue by the pleadings are correctly found by the court, then the law as applied to such facts must control the decision of the case, and hence that it will be unnecessary to consider any objections to the sufficiency of the pleadings. Of course, the rule has no application where a pleading is stricken out,

by sustaining a demurrer to it. The rule applies only where the pleading is retained, by overruling the demurrer directed against it. Neither could the rule, strictly speaking, be applicable where facts had been found which were not within the issues made by the pleadings. Such facts should be disregarded. But a party, by excepting to the conclusions of law, might be held to have waived any such error in the finding, by admitting that the facts had been correctly found, which waiver would include, of course, an admission that the facts found were within the issues. It is plain, therefore, that even though there has been a special finding of facts, with conclusions of law thereon, a party may nev ertheless insist upon a consideration of the correctness of the court's action in overruling a demurrer to a pleading. This is particularly true where, as in the case before us, the party has not excepted, and did not wish to except, to the conclusions of law upon the facts found, but simply insists that a pleading is defective, and that the court erred in overruling a demurrer to it. And because, by considering the conclusions of law, there might be a correct decision of the questions raised, it does not follow that the same end may not also be reached by considering the sufficiency of the pleading.

From the complaint it appears that the appel lant is the assignee of the Commercial Bank o Oxford, Ind., the deed of assignment dating from May 19, 1893, and that the appellee, Scott, is the executor of the last will of James T. Scott, who departed this life August 8, 1896; that on January 31, 1894, one Zimri Dwiggins and his wife executed two mortgages on the real estate in controversy, situated in Jasper county, and then owned by the said Dwiggins, to secure the payment to appellant of debts amounting to $12,000; that said mortgages were foreclosed for $13,989.95, and the lands sold to appellant for $10,000, in part satisfaction of said judgment; and that appellant holds a sheriff's certificate of such sale, dated December 26, 1896. It is further alleged that on May 12, 1893, the said James T. Scott commenced a suit in the Howard eircuit court to recover the sum of $825 from the said Dwiggins and others, as partners, doing business under the name of the Farmers' Bank of Greeton, in Howard county; that on said day said Scott, on affidavit that Dwiggins was a nonresident of the state, procured the issuance of a writ of attachment against the property of said partnership in Howard county, by virtue of which such property was seized by the sheriff, and appraised at $18,142.01; that on May 13, 1893, on Scott's petition, reciting the insolvency of said partnership, that there were numerous creditors, and that said Farmers' Bank had suspended payment, a receiver was appointed to take charge of the assets of the partnership, and thereupon the sheriff, as ordered, turned over to the receiver all the partnership property levied upon by virtue of

attachment was issued "without having obtained personal service upon the said Zimri Dwiggins, or without having attached any property of the said Dwiggins in Howard county (except the partnership property), or without having summoned any garnishee in said Howard county." If any of these conditions obtained, the judgment would be authorized by the statute cited. In the first place, it is not alleged that the record does not show that some one of the conditions did exist. In the absence of an allegation that there is no such record, we must, in support of the jurisdiction exercised by the court, presume that there is such record, and, if there is a record showing the existence of any of the required conditions, such record must prevail against an allegation that some one of the conditions did not exist. Moreover, as to the first condition, it may be that up to May 29, 1893, when the writ was issued, no personal service was had upon Zimri Dwiggins; and yet such service might be had afterwards, and before the entry of judgment on the attachment. It is not necessary that notice to the defendant in attachment be served at or before the issuance of the writ. It is enough that it be served before the judgment. Besides, Dwiggins may have appeared to the action at some stage of the proceedings. Again, the complaint does not show absolutely that property of Dwiggins had not been attached in Howard county. It is expressly admitted that partnership property of his had been so attached. The court might have deemed this a sufficient compliance with the statute; so that its assumption of jurisdiction could withstand this collateral attack, even though the assumption were in fact erroneous. All presumptions will be indulged in favor of the judgment. Elliott, App. Proc. § 725.

The appellant took his mortgage pendente lite, and after the land in question had been attached by the sheriff of Jasper county. He is therefore in no better position than Dwiggins himself would be if he were seeking to impeach the judgment of the Howard circuit court. He should therefore not only allege what was done and what was omitted by the court as affecting its jurisdiction in the matter, but it is also necessary that "he should allege in his pleading what, if anything, is shown by the record" in relation to the issue which he tenders. This he has not done, and the omission is fatal to his complaint. Bank v. Ault, 102 Ind. 322, 1 N. E. 562; Railroad Co. v. Burress, 82 Ind. 83; Krug v. Davis, 85 Ind. 309; Cassady v. Miller, 106 Ind. 69, 5 N. E. 713; Cosby v. Powers, 137 Ind. 694, 37 N. E. 321; Bailey v. Rinker, 146 Ind. 129, 45 N. E. 38; Davis v. Clements, 148 Ind. 605, 47 N. E. 1056; Thompson v. Harlow (at this term) 50 N. E. 474, and authorities there cited. Those cases show conclusively that the complaint was insufficient to authorize any judgment in favor of appellant. It is not therefore nec

essary to consider the errors assigned by him. Such errors, even if they should be found to exist, would be harmless, for the reason that under his complaint appellant could not in any case be entitled to judg ment. Improvement Co. v. Small (at this term) 50 N. E. 476, and authorities there cited. Judgment affirmed.

HEAL et al. v. NIAGARA OIL CO. et al. (Supreme Court of Indiana. May 18, 1898.) REVIEW ON APPEAL-LEASE BY MARRIED WOMAN -JOINDER BY HUSBAND.

1. Where there is no objection to the form or scope of a decree, and no motion is made to correct or modify it, such question will not be reviewed on appeal.

2. A lease of her lands by a married woman, simply for the purpose of giving the lessee the right to prospect and operate for gas and oil, is not an "incumbrance or conveyance," as contemplated by Burns' Rev. St. 1894, § 6961 (Horner's Rev. St. 1897, § 5116); and hence her husband need not join in its execution.

Appeal from circuit court, Wells county; E. C. Vaughn, Judge.

Action by William E. Heal and others against the Niagara Oil Company and others for an injunction. From a decree deny-' ing the relief sought, plaintiffs appeals. Affirmed.

Mock & Sons and P. B. Manley, for appellants. Dailey, Simmons & Dailey, for appellees.

HACKNEY, J. The appellants sued to enjoin the appellees from operating or attempting to operate for oil or gas upon six several tracts of land. The trial court, by general decree, denied the injunction. Upon the trial, appellees expressly disclaimed any interest in four of such tracts, and insisted only upon their right to operate upon two of the tracts,-that known as the "Schultz Land," and that known as the "Swan Land.” One insistence of appellants is that the decree was wrong as to the four tracts other than those of Schultz and Swan. There was no objection to the form or scope of the decree, and no motion or other step was taken to correct or modify it. There is therefore no question properly presented for review upon this branch of the case. Furniture Co. v. Hascall, 123 Ind. 502, 24 N. E. 336; Wood v. Hughes, 138 Ind. 179, 37 N. E. 588; Tewksbury v. Howard, 138 Ind. 103, 37 N. E. 355; Railway Co. v. Eggers, 147 Ind. 299, 45 N. E. 786. We do not understand, as appellants' counsel do, that appellees contend against the right to raise any question because of the failure to move for a modification of the decree.

The rights in dispute, as to the two tracts specially named, depend upon leases by the owners to the parties (appellants and appellees), respectively. The lease by Rosa L. Swan to the appellees bears date April 27,

1893, and is for one year from May 17, 1893, with the following condition: "If no well be completed * within six months

from the date hereof, then this lease shall become null and void, unless the lessee shall thereafter pay for further delay at the rate of eighty dollars per year, until a well shall be completed." At the time of the execution of the lease, Mrs. Swan was a married woman, and her husband did not join. Afterwards, on November 4, 1894, Mrs. Swan, then a widow, received from the appellees $80 "for rental on the lease," with a stipulation in the receipt that "this renews to November 17th, 1895." On the 1st day of August, 1895, Mrs. Swan executed to the appellants a similar lease of the same lands so leased to the appellees; the appellants at the time having actual and constructive knowledge of the lease to the appellees, and actual knowledge of the payment of said sum to Mrs. Swan by the appellees upon the lease, and accepting this lease, and paying a consideration therefor, with the understanding that, if the appellees' lease should not prove invalid, said consideration should be repaid. There is much controversy as to whether the appellees were guilty of such failure to operate for gas or oil as had created a forfeiture of the lease at the time appellants' lease was executed, and authorities are cited as to the construction and character of such leases, with reference to an early and continued prosecution of the work of discovery; but it seems to us there is no rule which forbids the parties contracting as to such delays as they may desire; and, aside from the power of Mrs. Swan to contract at all, there is no doubt, upon the face of the transaction, that they contracted for delay until November 17, 1895. Appellants insist, however, that the lease by Mrs. Swan alone to the appellees was void, and that the subsequent receipt of the rental did not ratify the lease. Opposing this view, appellees assert the single proposition that appellants may not assert the coverture of Mrs. Swan to defeat the first lease, and they cite Bennett v. Mattingly, 110 Ind. 197, 10 N. E. 299, and 11 N. E. 792; Johnson v. Jouchert, 124 Ind. 105, 24 N. E. 580, and Plaut v. Storey, 131 Ind. 46, 30 N. E. 886. These cases hold that, as to contracts voidable on account of coverture, parties in privity of estate, merely, may not assert such coverture, but that such privilege may only be exercised by persons in privity of blood or representation.

In the cases of Bennett v. Mattingly and Johnson v. Jouchert, it was held that as to void contracts a different rule applies. Here, it is urged by appellants, the lease was void by reason of the absolute denial of power to a married woman "to encumber or convey" her lands "except by deed in which her husband shall join." Section 6961, Burns' Rev. St. 1894 (section 5116, Horner's Rev. St. 1897); Luntz v. Greve, 102

Ind. 173, 26 N. E. 128; Kinnaman v. Pyle, 44 Ind. 275. Does the lease in question fall within this express denial of power? The ordinary lease of agricultural lands for the purpose of cultivation, although carrying an interest in the lands, has been held not to fall within the inhibition of the statute cited. Pearcy v. Henley, 82 Ind. 129; Nash v. Berkmeir, 83 Ind. 536. See, also, City of Indianapolis v. Kingsbury, 101 Ind. 200. In the first of these cases it was said: "The lands of a married woman, and the rents and profits therefrom, are her separate property, as fully as if she were unmarried. To realize rents, lands must be let; and it seems to us that a lease for a term not exceeding three years is not an incumbrance or conveyance, within the meaning of the act touching the marriage relation, construed in connection with the other statutes above noticed. When the legislature provided that a married woman should have no power to incumber or convey her lands, except by deed in which her husband should join, they did not intend to make a written lease necessary which would not be necessary in other cases." In Nash v. Berkmeir, supra, it was held that the joining of the husband in a lease of the wife's land was not essential to the validity of the lease. It was held, also, on the authority of Sanborn v. French, 2 Fost. (N. H.) 246, that a lease in which the husband did not join, unlike a deed of conveyance, may be confirmed after the husband's death. See, also, Eliott v. Gower, 12 R. I. 79; McKesson v. Stanton, 50 Wis. 297, 6 N. W. 881; Krouskop v. Shontz, 51 Wis. 204, 8 N. W. 241; Williams v. Urmston, 25 Ohio St. 296. Leases of the character of the present differ from the ordinary agricultural lease, in that the former may carry a substantial and enduring interest in the freehold, while the latter vests but a transient and temporary interest,-that of raising and removing crops. The former, however, in their primary effect, part with no immediate title or estate, and carry but right of exploration; any title or estate which may be contemplated remaining inchoate and of no effect until the oil or gas is found. Oil Co. v. Fretts (Pa. Sup.) 25 Atl. 732. For the purpose of prospecting, such leases involve a mere use, and part with no greater interest in the freehold than the ordinary agricultural lease. We have here no question to the effect of the instrument of Mrs. Swan to carry a freehold estate; the question being as to the validity of the lease to the appellees, in vesting the exclusive right of prospecting or operating for gas and oil. For such purpose, we do not doubt the power of Mrs. Swan to lease without her husband joining. The facts as to the lease by Mrs. Swan to the appellees, the payment of the rental (according to the evidence the most favorable view for the appellees), the knowledge of appellees' lease, and such payment, may all be said to be