there attach the following described real es- | lant, who is his only heir, was brought into tate, to-wit: The fractional east half of the court by a supplemental complaint. The apsouth-east quarter of section 22, township pellant being a minor, the court, upon proof 23, range 10 east, containing (61) sixty-one of that fact, appointed William A. Bonham acres, more or less, situate in Blackford coun- as his guardian ad litem. Said guardian filed ty, Indiana, which real estate is appraised at a demurrer to the above complaint for the twenty dollars per acre. [Signed] JESSE reasons: (1) That said complaint does not H. DOWELL. CHARLES A. RHINE, Sheriff.” state facts sufficient to constitute a cause of That afterwards, at the May term, 1877, such action. (2) That there is a defect of parties proceedings were bad that the court rendered plaintiff, in this, 10-wit: That the facts judgment in favor of said Gilbert Wilson and stated in the complaint do not show that one Alexander Sims, who had become a party James M. Sims has any interest in the real under said attachment proceedings, for the estate in controversy, and is neither a proper amount of their claims, and made an order nor necessary party plaintiff herein. The for the sale of said real estate, as described court overruled this demurrer, and the apin said levy. That said judgment was made pellant excepted. The appellant then anwithout other notice to the said Sims than a swered the complaint by a general denial, newspaper publication, which publication and also filed a counter-claim, in which he was made upon an affidavit as follows, to-wit: set up the several liens upon the land in con"Gilbert Wilson vs. James M. Sims. At-troversy, paid by the claimants under the tachment. Blackford circuit court, March sheriff's sale set up in the complaint, and term, 1877. On this 7th day of March, 1877, prayed that the amount of such liens might comes into open court John Brownlee, of be ascertained, and that the appellant might lawful age, and a disinterested person, who be subrogated to the rights of the original on oath states that James M. Sims, one of lien holders. the defendants in the above cause, is not a The cause was tried by the court, who resident of the state of Indiana; that said found for the appellee upon his complaint, cause is an attachment which has been levied ascertained the amount of the liens paid by on real estate, and further saith not. J. those claiming title under the attachment BROWNLEE. Subscribed and sworn to this proceeding, entered a decree quieting the March 7th, 1877. JAMES B. WEIR, Clk.” title of the appellee, and decreed that the apThat said James M. Sims had no other notice pellee should pay to the appellant the liens of said action. That the clerk of said court paid, within a given time, and that in deafterwards issued a special execution to the fault thereof the land should be sold for the sheriff of said county, describing the real es- payment of the same. The errors assigned tate as in the order of the court and in the in this court are: First, that the court belevy aforesaid, and afterwards the sheriff low erred in overruling the demurrer to the sold or made a pretended sale of the same to complaint; second, that the court erred in one Samuel Peck, without giving any news- overruling the appellant's motion for a new paper notice of said sale, and at the expira- trial; third, that the court had no jurisdiction tion of one year executed to said Samuel Peck of the action or of the defendant; fourth, a deed describing no land, except as in said that the special judge trying the cause had levy, order of sale, and execution. That no jurisdiction of the cause or of the defendthere is no such real estate as thus described. ant. That afterwards said Peck made a pretended We know judicially that the east half of purchase of said land at private sale for de- the south-east quarter of section 22, in townlinquent taxes, and within two years the au- ship 23 north, of range 10 east, is not a fracditor of said county executed to said Samuel tional 80-acre tract of land. The courts take Peck a tax-deed describing said real estate as judicial notice of the geography and topografraction of east half of said south-west quar-phy of the state, and of the United States ter. That the defendant is in possession, surveys. Hays v. State, 8 Ind. 425; Glenn v. and claims to be the owner, of the land de- Porter, 49 Ind. 500; Bannister v. Associascribed first herein, by conveyance from Sam- tion, 52 Ind. 178; Murphy v. Hendricks, 57 uel D. Peck, under said conveyance above set Ind. 593; Carr v. McCampbell, 61 Ind. 97. forth. That at the time of said attachment The description contained in the return of the said James M. Sims was the owner of the the sheriff to the writ of attachment, as we land first above described, who, however, have seen, is as follows: "The fractional east with his wife, at the rendition of said judg- half of the south-east quarter of section 22, ment, has since conveyed the same to the township 23, range 10 east, containing sixtysaid Peter Drayer. The plaintiff asks an ac- one (61) acres, more or less;" and the question counting, and offers to pay to defendant for our consideration is, is this a sufficient whatever may be due him on account of taxes, description? It is not the office of a descripor any other just claim, and asks that his iitletion to identify the land conveyed, but to be forever quieted and confirmed, that he re- furnish the means of identification. Scheible cover possession thereof, that judgment and v. Slagle, 89 Ind. 323; Burrow v. Railroad Co., sheriff's sale be set aside, and for all other 107 Ind. 432, 8 N. E. Rep. 167. In the case general and proper relief.

of Howell v. Zerbee, 26 Ind. 214, it was held During the pendency of the action, the de- that a description as follows was not a good fendant, Elias D. Peck, died; and the appel- 'description: "Situated in the county of

Starke and state of Indiana, a part of lot 3, vision is a part of our present Code, and is to section 36, in township 33, range 4 west, con- be construed in connection with section 251, taining five acres.” In the case of Porter v. Rev. St. 1881, which provides that every ac Byrne, 10 Ind. 146, it was held that a descrip- tion must be prosecuted in the name of the tion as “one-half of lot 60, in the town of real party in interest. It affirmatively apEvans ville,” not showing which half, was pears by the complaint now under considerabad. In Jolly v. Ghering, 40 Ind. 139, a de- tion that the plaintiff in this case, James M. scription as follows: "In Montgomery coun- Sims, had conveyed the land in dispute to ty, – part of the south-west quarter of Peter Drayer prior to the commencement of section -, township nineteen, range four this suit. James M. Sims therefore had no west, containing,” etc.,—was held bad. In interest in the land at the time he commenced City of Crawfordsville v. Irwin, 46 Ind. 438, this action. Section 1073 gives validity to a description as follows: “On part of lot deeds which, prior to its passage, were void number 110 in the original plat of C as to the party in possession; and the action ville,"—was held ba / for uncertainty. In for the recovery of the lands covered by such the case of Buck v. Axt, 85 Ind. 512, the de- deeds must be prosecuted in the name of the scription in a school-fund mortgage, which grantee. To hold otherwise would be to hold described the land as “the south-east part” of that a party, in the adverse possession of a specified tract,"containing ninety acres," lands to him conveyed, might be harassed was insufficient, and a sale by the auditor by two suits. If the grantor may now mainunder such description conveyed no title. tain the action, if he were defeated the granIn the case of Shoemaker v. MicMonigle, 86 tee could bring a new suit, and, as he was Ind. 421, a description as follows: “The not a party to the action brought by his gransouth-east part of the south-east fourth of the tor, he would not be bound thereby. Furnorth-east quarter of section 36, township thermore, it does not appear from the comfour south, and range 2 east, containing plaint now under consideration that the apthirty-two acres,”—was held void for uncer- pellee or his grantor was in the adverse postainty. All that can be ascertained from the session of the land now in dispute at the time return of the sheriff to the writ of attach- of the conveyance from Sims to Drayer; nor ment is that he levied the writ on a fractional does it appear that this action is being prospart of the E. of the S. E. 4 of section 22, ecuted, either with the knowledge or the contownship 23 north, of range 10 east, contain: sent of Drayer. As the complaint does not ing 61 acres. In what part of the 80-acre state a cause of action in favor of the appeltract this 61 acres is to be found is wholly lee, it follows that the court erred in overunknown, and there is nothing in the de- ruling the demurrer thereto. The judgment scription by which it can be ascertained. In is reversed, with instructions to sustain the our opinion this description is too indefinite demurrer to the complaint, and for further to furnish a foundation for a valid decree for proceedings not inconsistent with this opinthe sale of the land, and the sale made by ion. such description is void, and conferred no title upon the purchaser.

(120 Ind. 319) But, not withstanding the fact that the sale

BEARDSLEY 0. MARSTELLER. 1 under the attachment proceedings is void, (Supreme Court of Indiana. Oct. 16, 1889.) we think the court erred in overruling the

ADMINISTRATORS-REFUNDING AGREEMENT. demurrer to the complaint. Prior to 1881,

An agreement by a creditor of an estate, on a deed executed by a grantor to land in the being paid in full by the administrator, to refund adverse possession of another was void as to in case the estate proves to be insolvent, is valid. the person in possession, and the grantee could Following Wheeler v. Hawkins, 19 N. E. Rep. 470. not maintain an action in his own name for

Appeal from circuit court, Warren county; the possession of such land. The grantee JOSEPH M. RABB, Judge. could, however, maintain an action in the

R. P. Davidson, for appellant. Frank B. name of his grantor, and such grantor was Everett, for appellee. not permitted to deny the use of his name for that purpose, because the deed, as between MITCHELL, J. This action was commenced him and the grantee, was valid; and, if the by Nicholas Marsteller against George T. Ten grantee succeeded in recovering the land in Eyck to recover money paid by the plaintiff, the name of his grantor, such recovery in- as administrator of the estate of A. J. Morured to his benefit. Steeple v. Downing, 60 ley, deceased, on a claim which the defendant Ind. 478. But section 1073, Rev. St. 1881, held against the above-mentioned estate. in force at the time of the commencement of Pending the suit the death of Teu Eyck was this suit, provides that any person having the suggested on the record, and George T. right to recover the possession of real estate, Beardsley, executor of his estate, was substior to quiet title thereto in the name of any tuted as defendant. The special finding of other person or persons, shall have a right to the court presents all the facts material to be recover possession or quiet title in his own considered in determining the merits of tho name; and no action shall be defeated or re- controversy. It is found that Ten Eyck had versed when it might have been successfully a claim, amounting to $1,368, against the esmaintained by the plaintiff in the name of tate of Morley, which had been duly allowed. another, to inure to his benefit. This pro-Marsteller, administrator, paid the claim in

1 Rehearing denied.

full, and took a receipt, to which was attached | less the mistake was induced by the frauduan agreement, the effect of which was that, lent conduct of the creditor. Carson v. Mcif the estate turned out to be insolvent, Ten Farland, 2 Rawle, 118; Davis v. Newman, Eyck bound himselfto refund to Marsteller the 2 Rob. (Va.) 664. The practice of taking amount received, with interest from date, less refunding receipts is, however, a very old the amount of any dividend which the claim- one, and we know of no authority which ant might be entitled to receive on his claim. holds, nor of any reason for holding, that a Payment was made to Ten Eyck by the as- creditor who has received payment in full signment of a sheriff's certificate of sale of upon an agreement to refund may repudiate certain real estate, which was part of the as. his agreement and leave the administrator sets of the estate in the hands of the admin- to bear the loss. Such an agreement is not istrator, the same having been accepted by in violation of any statute, nor is it intrinthe former as cash. Ten Eyck realized the sically wrong or immoral. It scarcely needs full face value of the certificate in money. to be said that such an agreement is not withThe estate of Morley was finally settled as out consideration to support it. The present insolvent, and the administrator discharged case is not distinguishable in principle from on the 1st day of April, 1885, the dividend Wheeler v. Hawkins, 116 Ind. 515, 19 N. E. or pro rata share of Ten Eyck on his claim Rep. 470, in which an agreement similar to being $41.76. The latter refused, upon de- that here in question was held valid and mand, to pay Marsteller according to his binding. Other questions not affecting the agreement. Conclusions of law in favor of merits are suggested, but they involve no erthe plaintiff below.

ror. The judgment is affirmed, with costs. The appellant's position is that the duties of an administrator are prescribed by stat

(120 Ind. 337) ute, which requires him either to settle the STATE ex rel. LONG, Prosecuting Attorney, estate as solvent or insolvent, and that the V. BROWNSTOWN & R. V. GRAVEL-ROAD plaintiff' had therefore no right to commit Co. what was in effect a devastavit upon the es

(Supreme Court of Indiana. Oct. 16, 1889.) tate, and only upon an agreement with a third

GRAVEL-ROADS-FORFEITURE. person for indemnity. Moreover, it is ar

1. Under Rev. St. Ind. 1881, $ 3641, which degued that the agreement to repay the money clares that the failure of a gravel-road company to was without any consideration, since Ten complete its road within four years forfeits its Eyck received nothing more than the amount charter, but provides that, if the road is, during due him from the estate.

that time, partly completed, the company shall re.

A devastavit oc- tain all its rights and privileges for so much of the curs whenever an executor or administrator road as is completed, a failure to complete its enwastes the assets of the estate, and consists tire line of road does not forfeit the right of such of any act, omission, or mismanagement by a company to the part actually completed. which the estate suffers loss; or a devastavit file a report with the secretary of state, as directed

2. Nor is such a charter forfeited by failure to may result from the payment of claims which, by said section 3641. Following State v. Turnpike by the exercise of proper diligence, the admin- Co., 1 N. E. Rep. 395. istrator might have ascertained to be unjust Appeal from circuit court, Jackson county; and illegal. Ayers v. Lawrence, 59 N. Y T. L. COLLINS, Judge. 192–197. Any loss which results to an estate D. A. Kochenour and Louis T. Michener, from the misapplication of funds by an ex- Atty. Gen., for appellant. Applewhite & ecutor or administrator is to be made good Applewhite, for appellee. without detriment to others. Payment of a just and legal claim against an estate is not, ELLIÒTT, C. J. This action is prosecuted however, a devastarit or wasting of the es- by the state on the relation of Daniel H. tate. If an executor or administrator, with- Long, prosecuting attorney, and the object is out exercising due care, pays a claim in full to secure the forfeiture of the charter of the when the estate is insolvent, he takes the appellee. It is charged in the information chance of losing the excess over the amount that articles of association were filed in the which the claimant would have received in proper recorder's office in March, 1875; that the dividend among creditors. The estate or possession was taken of a public highway the creditors can lose nothing, as the admin- leading from Brownstown for a distance of istrator must make the amount good out of nine miles; and that the appellee assumed and his own pocket. Where an administrator undertook, in its articles of association, to pays a just debt due from the estate to a cred construct a gravel-road for tliat distance. It itor, the law raises no promise against the is averred that the company has completed creditor to repay any part of the amount in only six miles of the road, and, instead of case of a deficiency of assets. Egbert v. Rush, constructing nine continuous miles of road, 7 Ind. 706. Hence it is settled that, in the it has constructed only six miles of road, and absence of an agreement to refund, an ad- has not reached any one of the four places ministrator who has paid money on account beyond Brownstown mentioned in the arof a just debt cannot recover it back on the ticles of association. It is also charged that ground that by reason of insufficient assets, the directors have failed to file any report with not arising from their accidental destruction, the secretary of state. The statute provides loss, or failure, it afterwards appears that he that “every such company or association has made an overpayment by mistake, un-Ishall cease to be a body corporate if, within

two years from the time of filing a copy of to submit the controversy to arbitration was made its articles of association with the county re- in open court, and was to have been entered of reccorder, it shall not have commenced the con- ficient, since the court can only speak by its rec

ord, but that no entry thereof was made, is insufstruction of its road, and expended at least ord. ten per cent. of its capital stock; and if, with 3. A parol agreement to submit to arbitration, in four years from such time, such road shall and a parol award thereon, being good at common

law, are still binding, though a different method not be completed. provided, however, that if of arbitration has been provided for by statute. it so happen that such company should fail 4. A guardian can submit the cause of his ward to complete the whole of its road within four to arbitration. years, then, in that case, all the rights, priv Appeal from circuit court, Knox county; ileges, and franchises conferred by this act NEWTON F. MALOTT, Judge. upon such company shall be applicable to, and Action by James Kelly, guardian of Embe the charter of, such company for so much ma Adams and Margaret Adams, and Maria of its road as may be completed within four Callahan, against William Adams and Richyears, as fully and effectually as if the whole ard Adams, to recover a claim against the line were completed: provided, that within six estate of William G. Adams, deceased. Fimonths after such road shall have been com- nal settlement of said decedent's estate had pleted the directors shall report such fact, been made, and defendants were the heirs together with the costs of its construction, to and distributees. By Rev. St. Ind. 1881, the secretary of state.” Rev. St. 1881, § 8 2442, it is provided that “the heirs, dev3641.

isees, and distributees shall be liable, to the It is quite clear that the failure to con- extent of the property received by them from struct the entire line does not forfeit the right such decedent's estate, to any creditor whose to the part actually constructed, for the stat. claim remains unpaid, who, six months prior ute expressly provides that the rights and to said final settlement, was insane or an inprivileges conferred shall be restricted to the fant,” etc. Judgment for defendants. Plainpart actually completed. If there were doubt tiffs appeal. as to the construction of the statute, it must E. Callahan, Beasley & Williams, and be so resolved as to avert a forfeiture, if it Cullop & Shaw, for appellants. John C. can be reasonably done, for statutes are liber- Chaney and Geo. G. Riley, for appellees. ally construed to prevent forfeitures in such cases as this. Moore v. State, 71 Ind. 478; BERKSHIRE, J. This was an action, inSellers v. Beaver, 97 Ind. 111; Board v. stituted in the Knox circuit court by the Center Tp., 105 Ind. 422, 2 N. E. Rep. 368, appellants against the appellees, to compel 7 N. E. Rep. 189. The subsequent legisla- them to account for moneys claimed to be tion does not change the rule prescribed in due the appellants from their deceased grandthe statutory provision we have quoted, for father, who had been their guardian. The it simply grants further time for the con- action rests on section 2442, Rev. St. 1881. struction of gravel-roads. The effect of the There was a trial and judgment for the approvisions contained in section 3667, and in pellees in the court below. The errors asthe act of December 20, 1865, is simply to signed are as follows: (1) The court erred preserve the rights of the corporations who in overruling the motion to strike out the seccompleted their roads within the time desig- ond paragraph of the supplemental answer. nated to the entire line described in the ar-|(2) The court erred in overruling the deticles of association, and these provisions in murrer to the amended first paragraph of no wise impair the right to the part of the supplemental answer. (3) The court erred road actually completed, under the provisions in overruling the demurrer to the second of the statute we have quoted.

paragraph of supplemental answer. (4) The Pursuing the line marked out by the previ- court erred in overruling the demurrer to the ous decisions of this court, we think it must amended first and to the second paragraph of be held that the failure of the directors to file supplemental answer. The appellees assign a report with the secretary of state did not one cross-error, to-wit, the court erred in work a forfeiture of the appellee's corporate overruling the demurrer to the complaint. existence. Moore v. State, supra; State v. The answers to which the errors assigned Turnpike Co., 92 Ind. 42; State v. Turnpike by the appellants refer are misnamed in the Co., 102 Ind. 283, 1 N. E. Rep. 395. Judg- record. They are not supplemental to the ment affirmed.

original answers, but independent and addi

tional, and should have been styled addition(120 Ind. 340)

al paragraphs of answer. KELLY et al. v. ADAMS et al.

It is alleged, in substance, in the first par(Supreme Court of Indiana. Oct. 16, 1889.)

agraph, as amended, that on the —- day LIABILITIES OF HEIRS - PLEADING- ARBITRATION of January, 1887, while said cause was pendAND AWARD-GUARDIAN AND WARD.

ing, by agreement the court referred said pel heirs to pay a debt of their ancestor, brought cause to William H. De Wolf, Esq., an atunder Rev. St. Ind. 1881, $ 2442, which allows such torney of said court, with authority to hear an action to creditors who were infants or insane the evidence the parties might introduce, and six months before final settlement of the estate, a make a finding of facts, together with his complaint which only shows that one of the plain-conclusion of law upon the issues joined, and tiffs is within the purview of the statute is bad.

2. An answer which alleges that an agreement report the same to the court, and that such

finding should be entered of record by the 192 Ind. 359. The complaint was only techcourt in all respects the same as though the nically bad as to the guardian, and the insaid cause had been tried by the judge of said firmity that existed as to the other appellant court in open court; that subsequently, and was one wbich could have been overcome by on the

day of January, 1887, the par- amendment. Therefore we feel that we ties appeared before the said De Wolf by at- should consider the answers, notwithstandtorney, and, pursuant to said agreement, a ing the rule that a bad answer is good enough trial was had of said cause, conducted in all for a bad complaint. respects as equity causes are tried in the The first paragraph of the answer is bad Knox circuit court, and the merits of said for several reasons. It is alleged that the cause fully heard; that by the terms of the agreement was made in the presence of the said agreement the finding of the said De court, and was to be entered of record. The Wolf was to be made in parol and then en-court can only speak by its record, and, untered of record, and that he made a parol til the agreement, as alleged, was entered of finding upon the issues in the presence of the record, it was not a perfected agreement. attorney engaged in said cause, and in open Dennis v. Heath, 11 Smedes & M. 206. The court, in the presence of the judge of said court could take no notice of the agreement court, but by inadvertence the same was not alleged until the parties called its attention by the judge entered upon the docket at the thereto for its action, and it is not alleged time, nor since; that the attorneys for the that this was ever done. Nunc pro tunc appellants object and refuse to allow the en- entries relate to omitted proceedings of the try of the finding and the judgment to be court. Such proceedings, not having been made by said judge as agreed upon.

Then entered of record at the proper time, are made follows a prayer that the appellants be not now for them. But the purpose of the anallowed to prosecute their suit, and that said swer is not to obtain the benefit of an amendfinding and a judgment be entered as of the ed record as to past proceedings of the court,

day of January, 1887, for the defend- but, by proof of extraneous facts, to estabants.

lish a record of proceedings which the appelThe substance of the second paragraph is lees claim ought to have occurred, but never as follows: That heretofore, to-wit, at the aid occur. Raymond v. Smith, 1 Metc. (Ky.) January term, 1887, of said court, the par-65, is very much in point. Gibson v. Chouties mutually agreed to submit all of said is- teau, 45 Mo. 171. The learned judge delivsues in said cause to arbitration, the same toering the opinion says: “It is true, as arbe heard and tried before William H. De gued by the appellants, that the record may Wolf, Esq., an attorney of the said court; be amended in certain cases; but there must that pursuant to said agreement the same invariably be something to amend by. The were heard and tried before said De Wolf; effort in this case is not, however, to amend that all the evidence was heard by him as the record, but actually to establish a record arbitrator in said cause, and he found the is- which has no existence, by proof of extranesues in said cause in favor of the appellees ous facts.” The court could not amend its and against the appellants,- wherefore the record, because there was nothing to amend appellants should not recover, etc.

by. Williams v. Henderson, 90 Ind. 577; The complaint is evidently bad for the rea- Chisson v. Barbour, 100 Ind. 5; Johnson v. son that it fails to aver that Maria Callahan Moore, 112 Ind. 91, 13 N. E. Rep. 106; Makewas, within six months preceding the final peace v. Lukens, 27 Ind. 435; Schoonover settlement of the estate of William S. Adams, v. Reed, 65 Ind. 313. the testator, either an insane person, an in We are inclined to the opinion that the fant, or had been without the state of Indi- second paragraph was a good answer, not

We are inclined to the opinion that withstanding our statutory provisions in rethe complaint is sufficient in this regard as lation to arbitrations. The rules of the comto the appellant guardian. It is alleged, as mon law relating thereto are still in force. preliminary to the statement of facts relating At common law there might be one or more to the indebtedness, that the wards are the arbitrators, and the agreement thereto and minor heirs, etc. But the action is brought the award rest wholly in parol. Dilks v. by the appellants jointly; and, under the Hammond, 86 Ind. 563; Webb v. Zeller, 70 many decisions of this court, the complaint Ind. 408; Miller v. Goodwine, 29 Ind. 46; is bad because it fails to show a cause of ac- Sanford v. Wood, 49 Ind. 165. The award tion in favor of all of the appellants. Nave when made could be pleaded in bar of the acv. Hadley, 74 Ind. 155; Schee v. Wiseman, tion upon the original claim. Walters v. 79 Ind. 389; Insurance Co. v. Kittles, 81 Ind. Hutchins, 29 Ind. 136; Insurance Co. y. 96; Brumfield v. Drook, 101 Ind. 190. It Brehm, 88 Ind. 578. was necessary to a good complaint that the There has been some controversy as to facts alleged bring the case clearly within whether an agreement to submit to arbitrathe provisions of section 2442 as to all of the tion when a suit is pending had the effect to parties. Rinard v. West, 48 Ind. 159; Rail- discontinue the action; but the weight of auroad Co. v. Heaston, 43 Ind. 172; Leonard v. thority and of reason seem to be that it does Blair, 59 Ind. 510; Stevens v. Tucker, 73 not. Nettleton v. Gridley, 21 Conn. 531; Ind. 73; Gould v. Steyer, 75 Ind. 50; MC- Lary v. Goodnow, 48 N. H. 170; Paulison Curdy v. Bowes, 88 Ind. 583; Rinard v. West, ' v. Halsey, 38 N. J. Law, 488. There is no


« ForrigeFortsett »