bond of May 26, 1892, are illegal and void, and the plaintiff cannot recover thereon in this action. (2) That defendants Myers and Hess are not entitled to recover upon their cross-complaint for work and material placed in the building while proceeding under the contract. (3) The defendants Myers and Hess are entitled to recover upon their crosscomplaint for the value of the material placed on plaintiff's grounds by them, which the plaintiff took possession of and used in the completion of the construction of said building, and interest thereon. The assignment of errors calls in question only the first and third conclusion of law. That part of the first conclusion which holds that the bond sued on is illegal and void is clearly error. The facts found show nothing to make that bond void for illegality. It was a penal bond, with sureties, that the contractors, Myers and Hess, would keep and perform their building contract. It rests for its consideration entirely upon the building contract. If the building contract was void for any reason, then the bond sued on would be invalid. The appellees' contention is that the building contract was void, because it created a debt in excess of 2 per cent. of the assessed value of the taxable property of the municipal corporation of the town of Winamac, which is prohibited by the thirteenth article of the state constitution. Burns' Rev. St. 1894, § 220 (Rev. St. 1881, § 220; Horner's Rev. St. 1897, § 220). Appellant, however, contends that the building contract did not create a debt to the full extent of the contract price of the construction of the school building, because they contend that, unless the contractors did some work and furnished some material under the contract, no debt or liability of any sort whatever would ever arise against the school town of Winamac on the contract, within the principle laid down in City of Valparaiso v. Gardner, 97 Ind. 1. And, accordingly, appellant contends that the work was to be paid for on estimates made every three weeks as the work progressed, and, until an estimate was made, no debt or liability was created or existed under the contract, and then only for the amount of the estimate; and, as shown, those estimates at no time ever made the indebtedness of the town exceed the 2 per cent. of the taxable property. While this argument seems plausible, we need not and do not decide that it is either correct or incorrect, because it is conceded by appellees that, even though we treat the whole contract price for the construction of the school building as creating a debt against the town, and apply the $4,800 special school fund in the school town treasury to the payment of such debt, pro tanto, the remaining portion of such debt would exceed the 2 per centum limit prescribed by the constitutional inhibition by less than one-half of the contract price. About, or in the neighborhood of, $8,000 of this indebtedness did not exceed the constitutional limit. The question then arises whether that state of facts rendered the whole indebtedness void. Appellees' counsel contend that it did. But the authority cited in support of this proposition is squarely against them. The inhibitory language of the constitution is: "And all bonds or obligations in excess of such amount given by such corporation, shall be void." 15 Am. & Eng. Enc. Law, 1136, cited by appellees in support of their contention on this point, reads thus: "Generally only that part of the indebtedness incurred which exceeds the constitutional limitation will be held void, and a judgment may be recovered for the bonds first delivered up to the amount authorized." See notes 2, 3, and authorities there cited. One of the cases there cited, and largely relied on by appellees, is Culbertson v. City of Fulton, 127 Ill. 30, 18 N. E. 781, a decision made under a constitution precisely like our own in the respect involved here, except the limit there is 5 per centum. On page 38, 127 Ill., and page 783, 18 N. E., that court said: "The indebtedness, however, can only be regarded as void to the extent of the amount of the excess over the constitutional limit. Up to and under that limit the indebtedness is valid. The inhibition operates upon the indebtedness, and not upon the form of the debt. In the state of Iowa, which has a constitutional provision almost identical with that now under consideration, the officers of a school district made a contract to build a school house, for which the contractors were to receive $15,000 in bonds of the district, when the amount of indebtedness which the district could lawfully contract was only $2,057.50. The supreme court of that state say: 'We have seen that for the excess over the prescribed limit no right of action exists against the district. The question now arises, is the district liable for the amount of the indebtedness within the restricted limit? We think it is. As we have seen, the constitutional inhibition operates upon the indebtedness, not upon the form of the debt. The district may become indebted to the amount of $2,057.50 by bond. If the debt exceed that amount, it is void as to the excess because of the inhibition upon the power of the district to exceed the limit, and the bonds as to the same excess are void because of the nonexistence of a valid debt therefor. But this restriction does not extend to the sum of $2,057.50, for which the district had power to issue its bonds. That sum is a valid debt.' * * * McPherson v. Foster, 43 Iowa, 48. It follows that of the $1,700 levied by the ordinance of August, 1887, for the completion of the payment of the contract price of the waterworks, the sum of $1.165.95 represents an illegal and unconstitutional indebtedness. *But, where an injunction is sought to restrain a tax that is in part excessive, the excess may be enjoined, and the bill dismiss ed as to the remainder." Judgment accordingly. To the same effect is Stockdale v. School Dist., 47 Mich. 226; Daviess Co. v. Dickinson, 117 U. S. 657, 6 Sup. Ct. 897; Mix V. People, 72 Ill. 241. According to these authorities, and we think they correctly express the law, the appellees Hess and Myers, as contractors, had the valid obligation of the appellant to pay them in and about $8,000 for the construction of the school building. It is true that was only about half the contract price. But the contractors were chargeable with notice of the limits on the power of the school board, and also with the knowledge that the full contract price exceeded 2 per centum of the assessed valuation of the taxable property within the corporate limits of the town, when added to existing indebtedness of the town. Clinton School Tp. v. Lebanon Nat. Bank (Ind. App.) 47 N. E. 349; Platter v. County of Elkhart, 103 Ind. 360, 2 N. E. 544; Bicknell v. School Tp., 75 Ind. 501; City of Laporte v. Telegraph Co., 146 Ind. 466, 475, 45 N. E. 588. And with that full knowledge they contracted. They therefore knew that if they, as contractors, should complete the building according to contract, they must rely on the chances of the school board receiving donations of funds with which to pay the invalid part of the debt. And however remote the chances, and however improbable the final payment of the excessive part of the debt, the legal part was a sufficient consideration to support the building contract. Had it been shown that the contractors, Hess and Myers, were deceived as to the amount of the existing indebtedness of the town, or the amount of the assessed valuation of the property of the town, through the fraud and circumvention of the school trustees of the town, by which the contractors were induced to enter into the contract, and they had taken the proper steps to rescind, we might have a very different question before us. Our conclusion is that the building contract is not illegal, and is not void, but is binding. The fact that all the estimates were promptly paid to the contractors, and the fact that the school board of the town went on and completed the building, and paid for it more money than the original contract price, indicate that there must have been some other reason for the abandonment of the contract by the contractors than a fear that they would not be paid, and that they could not enforce payment. Be that as it may, the building contract was not void, but was valid, and furnished a sufficient consideration for the bond sued on. The third conclusion of law is wrong, because the facts found show that, after the material left on the ground by the contractors was used by the appellant in the building, the cost of completing the building was more than the contract price, and, instead of getting pay for that material, Hess and Myers are bound by the contract to pay that difference to appellant. No question is raised as to the second conclusion, but it is right anyway, because, when taking all the money paid to the contractors on the work from time to time, and adding that amount to the cost and expense appellant was to in completing the building, it amounts to $3,102.85 in excess of the contract price, and this sum the contract binds the contractors to pay to appellant. And the contract, as that finding likewise shows, binds them to pay appellant $10 a day for every day the completion of the building was delayed beyond the contract time for completion, and the finding shows that to have been 360 days. The judgment is reversed, and the cause remanded, with instructions to restate the conclusions of law in accordance with this opinion, and to then render judgment thereon in favor of the plaintiff. MASON et al. v. CALUMET CANAL & (Supreme Court of Indiana. April 26, 1898.) PUBLIC LANDS-RESURVEY-ADVERSE POSSESSION. 1. The resurvey of 1875, of the lands formerly covered by water, and which were conveyed to the state of Indiana by the United States under the swamp land act of 1850, by the descriptions of the survey of 1834, was invalid; and sales in pursuance thereof gave no title as against grantees under the survey of 1834. 2. Where the holder of the legal title and his grantors have held continuous, lawful, and unbroken possession of real estate from the time of the original survey, paying the taxes thereon, and exercising such dominion as was possible in the case of wild and wet lands, the statute of limitations would not run in favor of adverse claimants under a void survey. Appeal from circuit court, Porter county; John H. Gillett, Judge. Action by the Calumet Canal & Improvement Company against Henry B. Mason and others. Judgment for plaintiff, and defendants appeal. Affirmed. W. C. McMahan, W. P. Fennell, and W. H. Latta, for appellants. W. D. Johnson and Wm. Johnston, for appellee. HOWARD, C. J. This was an action brought by appellee against appellants and others, to quiet title to certain real estate described in the complaint, and situated in S. 12, section 18, and section 19, township 37 N., range 9 W.; and in sections 12, 13, and 24, township 37 N., range 10 W., in Lake county. The lands in controversy, together with other lands, were conveyed to the state of Indiana by the United States, under the swamp land act of 1850, and by the descriptions of the government survey of 1834. By the same descriptions, the lands were conveyed by the state to the remote grantors of appellee. Part of the lands are included in what was once the bed of Wolf Lake and the bed of Lake George; but, since the survey, the waters have, in large measure, receded, leaving the lake beds comparatively dry land. In 1875, certain persons, under the assumption that the beds of the lakes had not been surveyed in 1834, procured a resurvey of that part of the lands formerly covered by the waters; and it is through this last survey, and the sales made in pursuance thereof, that appellants claim title. The case before us, therefore, in so far as concerns source of title, does not differ from that of Kean v. Roby, 145 Ind. 221, 42 N. E. 1011. On the authority of the decision in that case, there can be no question that the resurvey of 1875, as also the sales made thereunder, was wholly invalid, and, consequently, that appellee's title, as based upon the original survey of 1834, and the sales made under that survey, is good. No real distinction in this regard has been shown between the two cases. The second contention is that the action is barred by the 15 and the 20 years' statute of limitations. This contention is plainly founded upon the same theory as the first, namely, that the appellants obtained some title or took possession of some kind under the void survey of 1875. As to title, as we have seen, there was none. As to possession, the court heard the evidence, and did not find, nor can we perceive, that the continuous and lawful possession of appellee and its immediate and remote grantors was ever broken by the unauthorized entrance, if any there was, on the part of appellants, or any of them. Appellee and its grantors continued to pay the taxes assessed on the lands, by the descriptions in their deeds coming down from the original government survey, and had at all times such possession of and exercised such dominion over the territory as was possible in the case of wild, wet, and uncultivated lands. As said by this court in Worthley v. Burbanks, 146 Ind. 534, 45 N. E. 779, it is manifest that as to adverse possession there can be no absolutely unvarying rule with reference to every kind of real estate. The requirement as to the kind of occupancy of or dominion over land which is necessary to show adverse possession in the case of a cultivated farm, a town lot, or a residence in a populous city, may be quite inapplicable or even impossible in the case of a piece of desert land, a mining claim, a nonnavigable lake, a prairie, or a forest. The evidence in this case, as we think, was sufficient to show continuous possession by appellee and its grantors of the lands in controversy. The appeal as to Henry B. Mason has been dismissed on his petition, and the contentions made in the brief filed in his behalf need not therefore be considered. Judgment affirmed. METROPOLITAN LIFE INS. CO. v. (Appellate Court of Indiana. April 21, 1898.) 1. Payments of premium on a policy of insurance which is void ab initio are not voluntary, and are recoverable as money had and received, in the absence of fraud on the part of the person to whom the policy was issued. 2. In an action brought before a justice of the peace to recover premiums paid on a policy of insurance, the complaint stated as the ground of recovery that the application for the policy was never signed by the assured. Held that. though it was not shown that the signature of the assured was necessary, the complaint apprised the defendant of the nature of plaintiff's claim, and that a recovery would bar another suit for the same cause of action, which is sufficient under the rules relating to complaints before justices. 3. The rules of pleading before justices of the peace are applicable in the circuit court on appeals from justices; and, where affirmative matter is set up in an answer on appeal to the circuit court, there is no available error in sustaining a demurrer thereto, if the same facts can be shown under the general denial or without plea. 4. In an action against an insurance company to recover premiums paid on a policy of insurance issued to plaintiff on the life of another, on the ground that the policy was void because the application therefor was not signed by the insured, judgment was rendered for plaintiff on special findings. These findings failed to state any reason why the application should be so signed, or any other fact which would render the policy void ab initio. Held, that the judgment was not supported by the findings. 5. Where a special finding is silent as to any fact, it is to be treated as a finding against the party having the burden of proving such fact; and, if it does not show that there was evidence before the court from which the fact might have been found, another trial will not be ordered. Appeal from circuit court, Allen county; E. O'Rourke, Judge. Action by Margaret Bowser against the Metropolitan Life Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Reversed. Zollars & Worden, for appellant. H. I. Smith and R. B. Dreibelbiss, for appellee. BLACK, J. The appellee brought her action against the appellant before a justice of the peace to recover back certain amounts paid by her as premiums upon six policies of insurance. On appeal from the justice, an amended complaint was filed in the court below in six paragraphs. A demurrer to each paragraph for want of sufficient facts was overruled. In the first paragraph it was stated that the appellant was a life insurance company organized under and pursuant to the laws of the state of New York, and was doing a life insurance business in the city of Ft. Wayne, Allen county, Ind.; that it had its regular established agency at that city for the purpose of soliciting insurance for the appellant; that on or before the 5th day of March, 1894, the appellant, by its agent doing business for the appellant in said city, importuned the appellee to take out an insurance policy upon the life of one Daisy M. L. Bowser, "who is a minor," said agent representing to appellee that the same could be had upon said life, and that the application for the same need not be signed by the insured, whereupon an application was made upon said life, and the same was signed by some person other than the appellee or said Daisy M. L. Bowser, in the name of said Daisy M. L. Bowser; that on the 5th day of March, 1894, the appellant issued policy No. 9,545,315 upon the life of said Daisy M. L. Bowser to appellee for $128, with a payment of a weekly premium of 10 cents; that the appellee paid said premiums as the same became due, and had paid the same up to and including April 15, 1895; that appellee had done everything on her part to be performed; that on the day of, 1895, the appellant notified the appellee that said policy had been illegally issued, and was void, and that the appellant had lapsed the same for said reason, whereupon the appellee demanded of the appellant that the amount of said premium so paid be returned to her; that the appellant refused and still refuses to so pay; that appellee could not more specifically state the date of "said cancellation"; that there had been paid by appellee on said policy, in weekly payments, the sum of $6; that said policy was void for the reason that the application for said policy was never signed by the assured; that the appellant had had the use of the money so paid in, and that the interest for the equated time of said payments was 30 cents; that there was due and unpaid to the appellee said sums, amounting to $6.30; wherefore, etc. The second paragraph of the amended complaint, after introductory matter like that in the first, alleged that, on or before the 8th day of May, 1893, the appellant, by its agent doing business for said company in said city, importuned the appellee to take out an insurance policy upon the life of one George Killen, said agent representing to appellee that the same could be had upon said life without his knowledge or consent, and that the application for the same need not be signed by the insured, upon which the appellee relied, whereupon an application was made upon said life, and the same was signed by some person other than said Killen, "who was and is now unknown to plaintiff," in the name of said Killen, and upon the 8th day of May, 1893, the appellant issued policy No. 8,621,343 upon the life of said Killen to the appellee for $122, with a payment of a weekly premium of 10 cents; that the appellee paid said premiums as they became due, "and has now the same paid in advance" to October 14, 1895; that appellee had done and performed everything on her part to be performed; that on the day of, 1895, the appellant notified the appellee that said policy had been illegally issued and was void, and that the appellant had lapsed the same for said reason, whereupon the appellee demanded of the appellant that the amount of said premiums so paid be returned to her, and that the appellant refused and still refused to so pay; that appellee could not more specifically state the date of said cancellation; that "said policy is void, and that the same is void for the reason that the application for said policy was never signed by the assured, and for the further reason that the plaintiff has no insurable interest in the life insured, neither by blood nor marriage nor as a creditor, and that the same was void at the time it was issued"; that appellee is an uneducated and ignorant woman, and unacquainted with the ways of business; that there had been paid by the appellee on sald policy, in weekly payments, the sum of $12,80; that the appellant had had the use of said money as paid in, and interest for the equated time of said payments was 87 cents; that there were due and unpaid to the appellee said sums, amounting to $13.67; wherefore, etc. The third paragraph related to a policy upon the life of one Elizabeth Etzel, the fourth to a policy upon the life of one Henry Guth, the fifth to a policy upon the life of one Caroline Yohey, and the sixth to a policy upon the life of one Louisa Guth. All the paragraphs after the second were like it except as to the names of the persons upon whose lives the policies were issued, the dates, the numbers of the policies, the amounts for which the policies were issued, and the amounts of the premiums, and except that in the fourth paragraph, after the allegation that the appellee had no insurable interest in the life insured, the words, "neither by blood nor marriage nor as a creditor," or equivalent words, were not inserted, and in the sixth paragraph the word "blood" was not used in that connection. Much indulgence must be extended to pleadings in causes commenced before a justice of the peace. It is well settled that, in a civil suit originated before a justice of the peace, a complaint will be treated as sufficient upon demurrer thereto for want of facts, upon appeal in the circuit or superior court, if it contain enough to inform the defendant of the nature of the plaintiff's claim, and be so explicit that a judg ment thereon will bar another suit for the same cause of action. Beineke v. Wurgler. 77 Ind. 468; Milhollin v. Fuller, 1 Ind. App. 58, 27 N. E. 111; Clifford v. Meyer, 6 Ind. App. 633, 34 N. E. 23. Many cases may be found in our Reports wherein complaints in causes commenced before justices have been held sufficient when doubt has been expressed as to their sufficiency if tested by the rules of good pleading in causes originating in courts of general Jurisdiction. The action to recover back premiums on the ground that the policy is void ab initio is not founded upon the policy. It proceeds rather upon the theory that there is no valid policy, but that the premiums have been paid upon a consideration which has failed. Such payments are not regarded as voluntary, and they are recoverable as money had and received to the plaintiff's use. See Waller v. Assurance Co., 64 Iowa, 101, 19 N. W. 865. If the risk has not attached, the premium paid (which is dependent upon the risk and regulated by it), in the absence of fraud on the part of the assured, must be returned, for it has not been earned. If there be no fraud of the insured, though there be negligence on his part, he may recover, if there be no risk run by the insurer. Jones v. Insurance Co., 90 Tenn. 604, 18 S. W. 260; Joyce, Ins. § 1390, and cases cited. The liability to return the premiums paid depends upon whether there is a contract of insurance under which a risk is run by the insurer in favor of the insured. To constitute such a contract, there must be parties capable of contracting. If the case could be said to present for consideration a contract of insurance with an infant, such a contract for his benefit is not void, but only voidable, at his election. The insurance company, in such case, could not avoid the policy merely upon the ground of the infancy of the insured. Monaghan v. Insurance Co., 53 Mich. 238, 18 N. W. 797. Where a minor takes out a policy of insurance on his own life, he cannot, on reaching majority, in the absence of fraud and unfairness, recover back premi ums paid by him upon the ground alone of his infancy, such a contract not being void. Johnson v. Insurance Co., 56 Minn. 365, 57 N. W. 934, and 59 N. W. 992. It is alleged in each paragraph of complaint that the policy was void for the reason that the application was not signed by the person whose life was insured. It is also alleged in each paragraph that the appellant had notified the appellee that the policy had been illegally issued and was void, and that the appellant had lapsed the policy for that reason. If the policy was issued subject to a rule of the insurance company that it should be void unless the application were signed by the person upon whose life the policy was issued, and if it may be properly said that a policy issued without compliance with such rule would be only voidable and that compliance might be waived by the insurance company, yet such a waiver would be a matter of defense to be set up by the appellant; and it here appears in the complaint that the company had not elected to avail itself of the privilege of waiver, but had canceled the policy because illegally issued. The complaint in each paragraph apprised the appellant that the ground on which the appellee's claim rested was that the application had not been signed by the person whose life was insured; and though it was not stated that a provision requiring such signature was contained in any rule or regulation or in the application, or shown that it entered in any manner into the contract, yet we think each paragraph apprised the appellant of the nature of the appellee's claim, and that a recovery would bar another suit for the same cause of action; and we are of the opinion that, under the very liberal rule relating to complaints before justices of the peace, we must hold each paragraph sufficient. See Fisher v. Insurance Co., 160 Mass. 386, 35 N. E. 849; Id., 162 Mass. 236, 38 N. E. 503; Fulton v. Insurance Co. (Com. Pl.) 19 N. Y. Supp. 660. Before the justice of the peace the appellant filed an answer in one paragraph, being a general denial. In the circuit court the appellant filed an answer in seven paragraphs, each setting up affirmative matter. A demurrer to these paragraphs of answer was sustained, the record entry of this ruling stating that the demurrer was sustained, "answer of general denial having been filed in the justice's court." The rules of pleading before justices of the peace are applicable in the circuit court on appeals from justices, and all defenses except the statute of limitations, set-off, matter in abatement, and the denial of the execution or the assignment of a written instrument, may be given in evidence without plea. Campbell v. Nixon, 2 Ind. App. 463, 28 N. E. 107, and authorities cited. Under this rule, there was no available error in the action of the court upon the demurrer to the answer, which did not in any of its paragraphs contain any matter of defense which could not be shown under the general denial or without plea. The cause was tried by the court, and there was a special finding. The appellant bas presented for our consideration the question as to the correctness of the court's conclusions of law upon the facts stated in the finding. We understand the complaint as proceeding upon the theory that the policies in question were issued to the appellee upon the lives of other persons, whose lives were insured for her benefit, and not upon the theory that the policies were issued to the persons whose lives were insured, or that the contracts of insurance were made for their benefit. The facts relating to each policy are set out in a separate paragraph of the finding. It is stated in each instance that a policy of the appellant having a specified number was issued on the application, upon the life of a person named, but it is not stated to whom any of the policies were issued or for whose benefit the insurance was contracted. There are no facts in the finding showing affirmatively, with relation to any of the policies, that the appellee did not have an insurable interest in the lives insured. She might have had an insurable interest in each of the lives, so far as appears from the facts stated. It is not shown whether or not the appellant had canceled any of the policies or asserted the invalidity thereof in any manner. There is nothing in the finding upon that subject. It is stated that the appellee paid premiums as they became due, and paid on each policy a certain amount, and that before the bringing of this action she demanded of a certain person, described as an |