ments, and appointed Harrison as such collector, who executed his official bond as such, with the appellants as sureties. He collected a large amount of money as such collector, for which he failed to account, and his sureties sought to defend an action on his bond upon the ground that the act of the common council in creating the office and in appoint fice. * * * And each of said officers, ex- | collector of assessments for street improvecept members of the common council, shall, in like manner, execute a bond with approved security, payable to the state of Indiana, in such penal sum as the common council shall, by resolution or ordinance, order and direct, conditioned for the faithful performance of the duties of his office and the payment of all moneys received by him according to law and the ordinances of such city: provided, how-ing Harrison was ultra vires and void. The ever, that in no case shall the mayor's bond court held that the common council had no be fixed at a less sum than three thousand power to create such an office, but held, also, dollars, nor shall the treasurer's bond be fixed that Harrison and his sureties were estopped at a less sum than double the amount of the from denying the validity of the ordinance estimated tax duplicate of the current year." creating the office and requiring him to colIt will thus be seen that the bond in suit lect the money. The chief justice, in discusscomes within the letter of the statute. It is ing the objection urged against the validity claimed, however, that the statute should be of the ordinance creating the office, and the limited by construction to such officers only bond given pursuant to its terms, said: "By as may, under the statutes of the state, col- the condition of this bond it is recited that, lect or receive the money belonging to the whereas the said William R. Harrison had city. Conceding this to be true, still we do been duly appointed by the mayor and comnot think a condition in the bond requiring mon council of the city of Hoboken as colthe city clerk to pay over such money as might iector of assessments for street improvements, come into his hands by virtue of the or- that if he should well and truly pay to the dinances of the city would be void. In the treasurer of said city all moneys which he case of Inhabitants v. Forrest, 2 N. J. Law, might collect or receive as such collector, etc. 107, a constable executed his official bond, By this condition the sureties have admitted containing conditions not required by the that his election was by the mayor and comstatute upon the subject. In answer to the mon council, and agreed to be sureties for the argument of counsel to the effect that such payment of all moneys which, by virtue of conditions were void, KIRKPATRICK, C. J., the appointment thus made, he might receive. said: "(1) As to the latter of the causes, to- They are estopped from denying that Harriwit, that the condition of the bond is more son was de facto a collector of assessments extensive than the act requires, it does not for street improvements. Their liability to appear to me to have much weight. It may pay over what he has collected is co-extensive be considered as a bond merely voluntary to with his. In a suit for moneys collected by secure to the township the faithful discharge him as such, neither the officer de facto nor of this office; and surely there can be nothing his sureties may set up the invalidity of his in this contrary to law, to reason, or to sound appointment in bar of the action. policy. I apprehend some confusion has It would seem to be eminently impolitic to arisen from likening this to certain other offi- permit the parties to such a bond to escape cial bonds, such as bail-bonds, and others its obligations by contradicting the recitals of where the condition is expressly prescribed by the bond, and thus retain from the public aulaw and all others declared to be void. But thorities the taxes received by an officer de that is not the case here. There is no such facto." There is no such facto." In this case the ordinances under prohibitory or nullifying clause in the act. It which the principal received the money now is a voluntary bond for a lawful purpose, for sought to be recovered were in existence securing the performance of an important at the time the bond in suit was executed. and necessary office, and as such I think it His sureties undertook voluntarily that he cannot be impugned in the law." But we should account for all moneys collected under do not think we are required to limit the act such ordinances, and we know of no valid in question by the construction contended for reason why they should not live up to that by the appellants. There is nothing in the agreement. By this undertaking they enable language used by which such an intention the principal to obtain the possession of the can be inferred, and we know of no valid rea- money, and we do not think they should be person why the act should be thus limited. We mitted to say now that he received it without are not only of the opinion that the bond as authority. The demurrer to the complaint is executed was authorized by the statute, and joint, on behalf of the principal and sureties, is valid in all its conditions but we think the so that if it states a good cause of action appellants are estopped from denying the against the principal the court could do no validity of the ordinances under which the less than overrule it. The sureties could money is alleged to have been received. Com. make no defense which the principal could v. Wolbert, 6 Bin. 292; Postmaster General not make. Section 5534, Rev. St. 1881. But v. Rice, Gilp. 554; Mayor, etc., v. Harrison, 30 we think it states a good cause of action N. J. Law, 73. In the case last cited, the against all defendants, and that the court did common council of the city of Hoboken, with- not err in overruling the demurrer thereto. out any legal authority, created the office of Judgment affirmed. * * * (120 Ind. 435) L'HOMMEDIEU et al. v. CINCINNATI, W. & exceptions. This conclusion is not in conflict M. Ry. Co. et al.1 1. Where a bill of exceptions is complete and technically correct without the certificate of the person professing to have been the official reporter, there being nothing elsewhere in the record to indicate his official character, the certificate will not be accepted as a verity to set aside such bill of exceptions. 2. An objection to testimony will not be considered on appeal unless it recites with particularity the reasons why such testimony is not competent. 3. A right of action by heirs to recover land belonging to the estate of their ancestor, and sold by his administrator under order of a court having no jurisdiction, accrues, and the statute of limitations begins to run, when the purchasers take possession under a certificate of purchase, and not when the sale is confirmed, as the sale is void. with the ruling in Lyon v. Davis, 111 Ind. 384, 12 N. E. Rep. 714, and other cases cited, but, if it was, it agrees with the later case of Machine Co. v. Gray, 114 Ind. 343, 16 N. E. Rep. 787, which modifies the former case. There are several reasons assigned in the motion for a new trial. All of them, from 4 to 15, inclusive, relate to the admission of testimony over the objections of the appellants. The practice has been long and well settled in this state (the cases have been so often collected and cited that we do not feel called on to cite them in this opinion) that, to entitle an objection to offered testimony to consid eration in this court, it must recite with particularity the reasons which indicate that the testimony is not competent; and that a general objection, such as the testimony is ir4. In an action for partition the complaint al-relevant, immaterial, and incompetent, is unleged that the owner of the land had died intestate, availing. As the reasons in the motion for a leaving as heirs his widow and two children; that new trial, to which we have called attention, the administrator sold the land for the payment of debts, by order of court; and that the defend- all depend on the one general reason, viz., ants were the owners in fee of the land, as pur- the testimony is irrelevant, immaterial, and chasers at the administrator's sale, subject to the incompetent, we must disregard them. There rights of plaintiff, who claimed an undivided third for the life of the widow and of said children, who are several important questions presented by were also defendants. Held, that these allegations the remaining reasons assigned, but, as our put in issue the validity of the administrator's sale conclusions as to two of the questions will and the title of the children, and, the court having dispose of the case, and must affirm the judg decreed partition, the validity of the sale was determined, and the children, having received their ment, we do not know of any good purpose share of the proceeds, were estopped from bringing to be subserved by considering and passing any action to recover the land. upon others. Appeal from circuit court, Madison county; E. B. GOODYKOONTZ, Judge. Robinson & Lovett, for appellants. Chas. L. Henry and H. C. Ryan, for appellees. BERKSHIRE, J. The appellants, who were the plaintiffs in the court below, filed their complaint in three paragraphs. The first and second were for the recovery of the possession of real property, and the third a paragraph to quiet title to the same real estate. One of the appellees filed a disclaimer, and another filed an answer in two paragraphs, and all the rest pleaded the general denial only. There was a trial by the court and a finding and judgment for the appellees. The only error assigned is the overruling of the motion for a new trial. The appellees file a third brief, which is of recent date when we compare the date at which it was filed with the dates at which other briefs were filed. In this brief the point is made that the evidence is not in the record, and therefore the questions which would otherwise be presented are not before us for consideration. This objection is purely technical, and, coming as late as it does, ought not to be regarded with very much favor; but at the same time, if we felt that the objection was well taken, we would not be at liberty to disregard it. The bill of exceptions, however, is complete and technically correct without the certificate of the person who professes to have acted as official reporter at the trial, and,' there being nothing elsewhere in the record to indicate his official character, we are not inclined to accept the certificate as a verity and set aside the bill of 1 Rehearing denied It is disclosed by the record that Michael Ryan died in Butler county, Ohio, October 23, 1861, seised in fee-simple of the real estate, the title to which is in controversy in this action. He died intestate, and left as his heirs at law Mary S. Ryan, his widow, and second wife, by whom he had no children, and two children by his first wife, the appellants in this action. On the 28th day of October in the year of his death Thomas Moore and Mary S. Ryan, the widow, were by the probate court of said Butler county granted letters of administration on his estate. At the May term, 1862, of the common pleas court within and for the county of Madison and state of Indiana, that being the county wherein is situated the said real estate, the said Moore, as administrator, filed his petition and obtained an order for the sale of the said real estate for the payment of debts. After obtaining the order he laid out and platted the said real estate as "Moore's Addition to the Town of Anderson," whether with or without the approval of the court, is not important to our conclusion. After the said real estate had been platted and laid out into lots and streets and alleys he sold the same to different persons, and reported the sales to the court. The court approved what he had done, the sales were confirmed, and deeds made and approved. The sales that were made not only included the lots proper, but also the streets and alleys; for in this state the purchaser of a town lot acquires title to the center of the streets and alleys on which it borders, burdened with the easement. The sale was made on the 27th day of June, except as to two of the lots which she had theretofore conveyed to Joseph Debay. Holland conveyed the interest which he had acquired from the widow to John J. Hayden, and in the year 1872 Hayden brought an action in partition against all parties who 1862, and the purchasers on that day took | thirds which descended to the appellants, unpossession of the said tracts or parcels pur- incumbered by the widow's life-estate, she chased by them, respectively, and the sales conveyed her life-estate to George Holland, so made were confirmed and deeds made and approved at the January term, 1863, of said court. At the time of the proceedings and sale in question section 211, p. 168, vol. 2, Gav. & H. Rev. St., was in force. Clauses 4 and 5 of this section read as follows: "Fourth. For the recovery of real property sold by ex-claimed an interest in the real estate, includecutors, administrators, guardians, or com- ing the appellants, and during the pendency missioners of a court, upon a judgment spe- of the said partition proceedings the appelcially directing the sale of property sought to lants appeared thereto, and filed exceptions be recovered, brought by a party to the judg-to the first report made by the commissioners ment, his heirs, or any person claiming title appointed to separate and part the real esunder a party, acquired after the date of the tate, and, the court having sustained said exjudgment, within five years after the sale is ceptions, and the commissioners having made confirmed. Fifth. Upon contracts in writ-partition anew and reported the same to the ing, judgments of a court of record, and for court, the appellants appeared further and the recovery of the possession of real estate, filed exceptions, which were by the court within twenty years." We do not care at overruled, and thereupon they filed a bill of this time to determine whether the case as exceptions. The last report of the commispresented is within the fourth clause of the sioners having been confirmed by the court, section or not, as we have come to the con- judgment was rendered making firm and efclusion that it is within the fifth clause, and fectual the partition as made by the commiswas thereby barred at the time of the com- sioners, and as to that part of the real estate mencement of this action, which was on No-reported not susceptible of division it was vember 23, 1882. If the court of common ordered sold, and a commissioner appointed pleas had no jurisdiction over the subject to make the sale, and, the sale having been matter of the petition of Moore as admin-made and reported to the court, the same was istrator to sell the real estate there, the approved, deeds made and approved to the reproceedings were void, and it is conceded that spective purchasers, and the proceeds of the no such jurisdiction existed. The proceed-sale distributed. The appellants having been ings being void, the title and right to the pos- adjudged to be the owners of the remainder session of the real estate was in the appellants covered by the widow's life-estate, they reat all times after the death of their father, ceived their distributive share of the proand when the purchasers at the administra-ceeds of the sale as determined by the court. tor's sale went into possession their posses- It is contended by the appellants that the sion was wrongful, and the appellants had title of the appellants to the undivided twothen and there a right of action against them thirds of the real estate not covered by the for the possession. They had no greater or bet- widow's life-estate, and for which they are ter right of action after the sale had been con- now contending, was not put in issue, and firmed by the court and the deeds made than was not involved in the action in partition, they had before. The purchasers went into and that the judgment in that case does not possession under claim of right by virtue of work an estoppel in this action. We are of a their certificates, which was hostile and ad- different opinion. It was alleged by Hayden, verse to the appellants, and they followed up in his complaint, that Michael Ryan died in this claim by afterwards procuring color of the year 1861, the owner of the said real estitle, if the certificates did not give them such tate, and intestate, leaving as his only heirs color. It was not necessary, however, that his widow, Mary S. Ryan, who was a second the appellees, and those under whom they wife, and two children by a former marriage, claim, had color of title during the period of (the appellants;) that one Moore, as his adlimitation to give to them the benefit of the ministrator, sold the said real estate by order statute, but it is sufficient that the character of the Madison circuit court, after having of their occupancy was such that during a platted the same as an addition to the town period 20 years anterior to the bringing of of Anderson, for the payment of debts; and this action the appellants had a right of action. that the defendants to the action (except the Vanduyn v. Hepner, 45 Ind. 589; State v. appellants) were the owners of the said real Bank, 106 Ind. 461, 7 N. E. Rep. 379; Roots estate in fee-simple, as purchasers at the adv. Beck, 109 Ind. 472, 9 N. E. Rep. 698. ministrator's sale, or as grantees from said The widow inherited an undivided one-purchasers, subject to the rights of the plainthird of the real estate in question during her natural life from Michael Ryan, her husband; the appellants inherited the fee-simple, including the remainder over covered by the widow's life-estate. After the real estate was platted by the administrator, Moore, as an addition to the town of Anderson, and probably after the administrator's sale of the two tiff and the said children, naming them, (the appellants,) and it was alleged that the plaintiff's interest was that of an undivided onethird during the natural life of the said widow, Mary S. Ryan. These allegations put the question as to the validity of the administrator's sale squarely in issue, as well as the title acquired through that sale. The com plaint alleged a tenancy in common, and gave | instrument, and not subsequent proceedings the source of title. The source of title al-founded upon it; so that we have no question leged as so all of the defendants except the as to the right to reform a deed or mortgage appellants being the administrator's sale, and against a bona fide purchaser, nor have we the court having found and adjudged the title any question as to the right to reform a sheras alleged, the validity of the sale was neces- iff's deed. sarily involved and determined. We are referred to the following cases in this court: Miller v. Noble, 86 Ind. 527; Utterback v. Terhune, 75 Ind. 363; Avery v. Akins, 74 Ind. 283; and see Fleenor v. Driskill, 97 Ind. 27; Woolery v. Grayson, 110 Ind. 149, 10 N. E. Rep. 935; Spencer v. McGonagle, 107 Ind. 410, 8 N. E. Rep. 266; Luntz v. Greve, 102 Ind. 173. In our opinion counsel for appellants, to some extent, misapprehend the force of those cases. They do not go so far as to hold that where the source of title is alleged and the title itself put in issue, as in the case under consideration, the judgment is not conclusive as to the interests and titles of the parties. Judgment affirmed, with costs. (120 Ind. 119) WORKS et al. v. STATE ex rel. HOLLAND. (Supreme Court of Indiana. Sept. 25, 1889.) DEEDS-DESCRIPTION-WITNESS. 1. In a conveyance the office of a description is not to identify the land, but to furnish the means of identification; and, when this is done, it is sufficient. 2. In an action against an administrator to foreclose a school-fund mortgage, the auditor of the county where the loan was made, who prepared the mortgage, and who brings the suit as relator of the state, is not a party in interest, and is not disqualified as a witness, within the meaning of the Indiana statute prohibiting parties from testifying as witnesses where heirs or administrators are parties. Appeal from circuit court, Switzerland county; WILLIAM T. FRIEDLEY, Judge. The state, by the relator, Phillip C. Holland, auditor of Switzerland county, sued for the foreclosure of certain school-fund mortgages, the defendants being Lewis F. Works, administrator, and others. Defendants moved to modify the degree of foreclosure as to certain tracts of land on account of defective description. This motion being overruled, defendants appeal. William R. Johnston, for appellants. James B. McCrellis, for appellee. ELLIOTT, C. J This suit was brought to foreclose a school-fund mortgage. The appellants insist that the court erred in overruling the motion to modify the decree, and, in support of their position, argue that as to two of the tracts of land embraced in the mortgage the description is so defective as to be void. We cannot yield to counsel's argument. The office of a description is not to identify the land, but to furnish the means of identification, and this is done by the description here challenged. Rucker v. Steelman, 73 Ind. 396. It furnishes the means of making the description certain, and that which can be made certain is certain. The controversy here is between the original parties, and directly affects the original The relator, who was at the time the mortgage was prepared the auditor of the county of Switzerland, was a competent witness. IIe was not a party in interest within the meaning of the statute prohibiting parties from testifying as witnesses where heirs or administrators are parties. He was a public officer performing an official duty when the mortgage was executed, and it was as a pub lic oflicer that he brought the suit as the relator of the state. Judgment affirmed. (120 Ind. 161) BERRY . TOWN OF MEROM. (Supreme Court of Indiana. Sept. 28, 1889.) RIGHT TO COSTS. Plaintiff sued for $40 for labor, and $20 for money advanced, and recovered only $17.50. Held, that he was liable for costs, where defendant pleaded a denial of any request to pay the $20, under Rev. St. Ind. 1881, § 591, providing that in actions for money demands on contract in the circuit court, where plaintiff recovers less than $50, he shall pay the costs, unless the judgment has been reduced below $50 by set-off or counter-claim. Appeal from circuit court, Sullivan county; GEORGE W. BUFF, Judge. W. S. Maple, J. T. Beasley, and A. B. Williams, for appellant. John C. Briggs, for appellee. OLDS, J. This is an action brought in the Sullivan circuit court by the appellant against the appellee for money expended for the appellee, and for work and labor performed for appellee by the appellant at the special instance and request of the appellee, alleging the value of the services at $40, and the money paid to be $20. The cause was put at issue, and a trial had, resulting in a finding and judgment in favor of appellant for $17.50. Motion by appellee to tax the costs to appellant sustained, and exceptions. The ruling on the motion to tax the costs is the only question presented in the case. The statute provides that "in actions for money demands on contract commenced in the circuit or superior courts, if the plaintiff recover less than fifty dollars, exclusive of costs, he shall pay costs, unless the judgment has been reduced below fifty dollars by set-off or counter-claim, pleaded and proved by the defendant." Rev. St. Ind. § 591. There was neither counterclaim nor set-off pleaded as a defense. It is contended that the third paragraph of the answer sets up a counter-claim; but in this we think counsel are in error. The third paragraph is a denial of any request or authority to pay the $20 alleged to have been paid by appellant for appellee, at the request of appellee. The motion to tax the costs to the appellant was properly sustained. There is no error in the record. Judgment affirmed, with costs. (120 Ind. 150) LYON V. KEE et al. (Supreme Court of Indiana. Sept. 27, 1889.) HIGHWAYS—ALTERATION-OFFICERS-PLEADING. In an action against a township trustee for changing road-districts in his township, his answer alleged that such changes were made in the interests of economy and for the benefit of the public highways, and were deemed necessary by him. Held, that the allegations showed the changes to be such as he had the right to make under Acts Ind. 1885, p. 202, authorizing town trustees, whenever they shall deem it necessary, to make such changes in road-districts as will subserve public interests; and were not demurrable. Appeal from circuit court, Porter county; H. A. GILLETT, Special Judge. John E. Cass and E. D. & P. Crumpacker, for appellant. William Johnston, for appel lees. acting upon what he deemed necessary he did, on the 10th day of April, 1886, divide said township into road-districts, and reduced the number of districts to five, and made a plat thereof, and filed and recorded a plat of the land in the highway records belonging to said township, and caused notice thereof to be served on plaintiff, and all other parties interested, a copy of which recorded plat is filed with the paragraph of answer, and made a part of the same. And it is further averred that in such change said plaintiff's road-district No. 2 was divided and cut up and assigned to other supervisors, duly elected and qualified as such, all of which was done to subserve the interests of economy, and the public highways, and was deemed necessary by said appellee; and that it is such redistricting and none other of which plaintiff complains. The third paragraph of answer alleges substantially the same facts as the second, except it alleges that the changes in the road-districts were made on petition of more than six householders and freeholders of the township, residing in the immediate vicinity of the change. To each of the second and third paragraphs of answer appellant filed a demurrer, which was overruled, and exceptions. The case was put at issue by a reply in denial, and tried by the court, resulting in a finding and judgment for the defendants, the appellees. Motion for new trial by the appellant overruled, and exceptions. The errors assigned are the overruling the demurrers to the second and third paragraphs of Kee's answer, and overruling the motion for new trial. OLDS, J. The appellant was duly elected supervisor of road-district No. 2, in Pleasant township, Porter county, Ind., at the April election, 1886, and duly qualified as such supervisor. The appellee William Kee was the trustee of said Pleasant township. The appellees Wall and Anderson were the dulyelected supervisors of road districts 1 and 3 in said township. The complaint charges that within a short time after the election of appellant as supervisor the appellee Kee, as trustee, maliciously, and for the purpose of depriving appellant, of his office, and without any necessity therefor, changed the road districts in said township so as to abolish said road-district No. 2, and added a portion of such district to district No. 1, and the other portion to district No. 3; and alleges that the appellees Wall and Anderson were threaten- The act approved April 13, 1885, (Acts ing to and were intending and about to dis- 1885, p. 202,) authorizes township trustees to charge the duties of supervisor in the respect-divide the township into road-districts, and, ive portions of said district No. 2 which had been assigned to their respective districts, and a restraining order is asked to prevent them from discharging the duties of supervisor within the boundaries of said original district No. 2. A demurrer is filed to the complaint by the appellees, which is overruled, but no complaint is made of this ruling. Appellee Kee filed an answer in three paragraphs, the first a general denial. The second alleges that he was the duly elected, qualified, and acting trustee of said Pleasant township, and had been such trustee for one year; that when he first entered upon his duties as such trustee he found said township divided into seven road-districts, with seven supervisors, and that said districts had been so arranged and remained in that way for more than two years last past, and the township had not been re-appointed administrator of intestate, and describes districted for road purposes for more than two years prior thereto, nor had there been any change made in them during that time; that in one of the districts there was but one man to work the roads, or liable to work thereon; that in the interest of said township, and in the interest of economy and for the benefit of the highways of said township, he deemed it necessary to divide and redistrict said township into new and suitable road-districts, and whenever they deem it necessary, to make any change in such road-districts that may subserve public interests. The paragraphs of answer show the changes made by the trustee in the road-district to be such as in his discretion he had the right to make, and the demurrers thereto were properly overruled. The finding of the court is sustained by the evidence, and the court did not err in overruling the motion for new trial. There is no error in the record. Judgment affirmed, with costs. CLOVE v. MCINTIRE. (120 Ind. 262) (Supreme Court of Indiana. Oct. 8, 1889.) him as such, and gives the names of the children 2. A right of action for the death of the intestate is shown when some of the persons named in the complaint are next of kin, though others are named who are not. 3. One who drives a vicious and unmanageable stallion among a crowd of vehicles standing apart from the traveled road at a county fair is liable for injuries caused thereby. |