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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 had that the court rendered plaintiff, in this, to-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 lienholders. 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 purchase of said land at private sale for delinquent taxes, and within two years the auditor of said county executed to said Samuel Peck a tax-deed describing said real estate as fraction 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 title tion 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

We know judicially that the east half of the south-east quarter of section 22, in township 23 north, of range 10 east, is not a fractional 80-acre tract of land. The courts take judicial notice of the geography and topogra

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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 acByrne, 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 apEvansville," 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 Cas to the party in possession; and the action ville," was held bad 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. McMonigle, 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. 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 description by which it can be ascertained. In our opinion this description is too indefinite to furnish a foundation for a valid decree for the sale of the land, and the sale made by such description is void, and conferred no title upon the purchaser.

But, notwithstanding the fact that the sale under the attachment proceedings is void, we think the court erred in overruling the demurrer to the complaint. Prior to 1881, a deed executed by a grantor to land in the adverse possession of another was void as to the person in possession, and the grantee could

not maintain an action in his own name for the possession of such land. The grantee could, however, maintain an action in the name of his grantor, and such grantor was not permitted to deny the use of his name for that purpose, because the deed, as between him and the grantee, was valid; and, if the grantee succeeded in recovering the land in the name of his grantor, such recovery inured to his benefit. Steeple v. Downing, 60 Ind. 478. But section 1073, Rev. St. 1881, in force at the time of the commencement of this suit, provides that any person having the right to recover the possession of real estate, or to quiet title thereto in the name of any other person or persons, shall have a right to recover possession or quiet title in his own name; and no action shall be defeated or reversed when it might have been successfully maintained by the plaintiff in the name of another, to inure to his benefit. This pro

ruling the demurrer thereto. The judgment is reversed, with instructions to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.

(120 Ind. 319)

BEARDSLEY 0. MARSTELLER.1 (Supreme Court of Indiana. Oct. 16, 1889.) ADMINISTRATORS-REFUNDING AGREEMENT.

An agreement by a creditor of an estate, on being paid in full by the administrator, to refund in case the estate proves to be insolvent, is valid. Following Wheeler v. Hawkins, 19 N. E. Rep. 470.

Appeal from circuit court, Warren county; JOSEPH M. RABB, Judge.

R. P. Davidson, for appellant. Frank B. Everett, for appellee.

MITCHELL, J. This action was commenced by Nicholas Marsteller against George T. Ten Eyck to recover money paid by the plaintiff, as administrator of the estate of A. J. Morley, deceased, on a claim which the defendant held against the above-mentioned estate. Pending the suit the death of Ten Eyck was suggested on the record, and George T. Beardsley, executor of his estate, was substituted as defendant. The special finding of the court presents all the facts material to be considered in determining the merits of the controversy. It is found that Ten Eyck had a claim, amounting to $1,368, against the estate of Morley, which had been duly allowed. 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 himself to refund to Marsteller the amount received, with interest from date, less the amount of any dividend which the claimant might be entitled to receive on his claim. Payment was made to Ten Eyck by the assignment of a sheriff's certificate of sale of certain real estate, which was part of the assets of the estate in the hands of the administrator, the same having been accepted by the former as cash. Ten Eyck realized the full face value of the certificate in money. The estate of Morley was finally settled as insolvent, and the administrator discharged on the 1st day of April, 1885, the dividend or pro rata share of Ten Eyck on his claim being $41.76. The latter refused, upon demand, to pay Marsteller according to his agreement. Conclusions of law in favor of the plaintiff below.

2 Rob. (Va.) 664. The practice of taking refunding receipts is, however, a very old one, and we know of no authority which holds, nor of any reason for holding, that a creditor who has received payment in full upon an agreement to refund may repudiate his agreement and leave the administrator to bear the loss. Such an agreement is not in violation of any statute, nor is it intrinsically wrong or immoral. It scarcely needs to be said that such an agreement is not without consideration to support it. The present case is not distinguishable in principle from Wheeler v. Hawkins, 116 Ind. 515, 19 N. E. Rep. 470, in which an agreement similar to that here in question was held valid and binding. Other questions not affecting the merits are suggested, but they involve no error. The judgment is affirmed, with costs.

(120 Ind. 337)

STATE ex rel. LONG, Prosecuting Attorney, v. BROWNSTOWN & R. V. GRAVEL-ROAD Co.

(Supreme Court of Indiana. Oct. 16, 1889.)

GRAVEL-ROADS-FORFEITURE.

1. Under Rev. St. Ind. 1881, § 3641, which declares that the failure of a gravel-road company to complete its road within four years forfeits its charter, but provides that, if the road is, during that time, partly completed, the company shall retain all its rights and privileges for so much of the road as is completed, a failure to complete its entire line of road does not forfeit the right of such a company to the part actually completed. 2. Nor is such a charter forfeited by failure to file a report with the secretary of state, as directed by said section 3641. Following State v. Turnpike Co., 1 N. E. Rep. 395.

Appeal from circuit court, Jackson county; T. L. COLLINS, Judge.

D. A. Kochenour and Louis T. Michener, Atty. Gen., for appellant. Applewhite & Applewhite, for appellee.

The appellant's position is that the duties of an administrator are prescribed by statute, which requires him either to settle the estate as solvent or insolvent, and that the plaintiff had therefore no right to commit what was in effect a devastavit upon the estate, and only upon an agreement with a third person for indemnity. Moreover, it is argued that the agreement to repay the money was without any consideration, since Ten Eyck received nothing more than the amount due him from the estate. A devastavit occurs whenever an executor or administrator wastes the assets of the estate, and consists of any act, omission, or mismanagement by which the estate suffers loss; or a devastavit may result from the payment of claims which, by the exercise of proper diligence, the administrator might have ascertained to be unjust and illegal. Ayers v. Lawrence, 59 N. Y 192-197. Any loss which results to an estate from the misapplication of funds by an executor or administrator is to be made good without detriment to others. Payment of a just and legal claim against an estate is not, ELLIOTT, C. J. This action is prosecuted however, a devastavit 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 that 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-shall cease to be a body corporate if, within

in open court, and was to have been entered of record, but that no entry thereof was made, is insufficient, since the court can only speak by its record.

3. A parol agreement to submit to arbitration, and a parol award thereon, being good at common law, are still binding, though a different method of arbitration has been provided for by statute.

4. A guardian can submit the cause of his ward to arbitration.

Appeal from circuit court, Knox county; NEWTON F. MALOTT, Judge.

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 recorder, it shall not have commenced the construction of its road, and expended at least ten per cent. of its capital stock; and if, within four years from such time, such road shall not be completed. provided, however, that if it so happen that such company should fail to complete the whole of its road within four years, then, in that case, all the rights, privileges, and franchises conferred by this act upon such company shall be applicable to, and be the charter of, such company for so much of its road as may be completed within four years, as fully and effectually as if the whole line were completed: provided, that within six months after such road shall have been completed the directors shall report such fact, together with the costs of its construction, to the secretary of state." Rev. St. 1881, Rev. St. 1881, 3641.

Action by James Kelly, guardian of Emma Adams and Margaret Adams, and Maria Callahan, against William Adams and Richard Adams, to recover a claim against the estate of William G. Adams, deceased. Final settlement of said decedent's estate had been made, and defendants were the heirs and distributees. By Rev. St. Ind. 1881, §§ 2442, it is provided that "the heirs, devisees, and distributees shall be liable, to the extent of the property received by them from such decedent's estate, to any creditor whose claim remains unpaid, who, six months prior to said final settlement, was insane or an infant," etc. Judgment for defendants. Plaintiffs appeal.

It is quite clear that the failure to construct the entire line does not forfeit the right to the part actually constructed, for the statute expressly provides that the rights and privileges conferred shall be restricted to the part actually completed. If there were doubt as to the construction of the statute, it must be so resolved as to avert a forfeiture, if it can be reasonably done, for statutes are liberally construed to prevent forfeitures in such cases as this. Moore v. State, 71 Ind. 478; Sellers v. Beaver, 97 Ind. 111; Board v. Center Tp., 105 Ind. 422, 2 N. E. Rep. 368, 7 N. E. Rep. 189. The subsequent legislation does not change the rule prescribed in the statutory provision we have quoted, for it simply grants further time for the construction of gravel-roads. The effect of the provisions contained in section 3667, and in the act of December 20, 1865, is simply to preserve the rights of the corporations who completed their roads within the time designated to the entire line described in the articles of association, and these provisions in no wise impair the right to the part of the road actually completed, under the provisions of the statute we have quoted.

Pursuing the line marked out by the previous decisions of this court, we think it must be held that the failure of the directors to file a report with the secretary of state did not work a forfeiture of the appellee's corporate existence. Moore v. State, supra; State v. Turnpike Co., 92 Ind. 42; State v. Turnpike Co., 102 Ind. 283, 1 N. E. Rep. 395. Judgment affirmed.

(120 Ind. 340)

KELLY et al. v. ADAMS et al. (Supreme Court of Indiana. Oct. 16, 1889.) LIABILITIES OF HEIRS-PLEADING-ARBITRATION AND AWARD-GUARDIAN AND WARD. 1. In an action by two joint plaintiffs to compel heirs to pay a debt of their ancestor, brought under Rev. St. Ind. 1881, § 2442, which allows such an action to creditors who were infants or insane six months before final settlement of the estate, a complaint which only shows that one of the plaintiffs is within the purview of the statute is bad.

2. An answer which alleges that an agreement

E. Callahan, Beasley & Williams, and Cullop & Shaw, for appellants. John C. Chaney and Geo. G. Riley, for appellees.

BERKSHIRE, J. This was an action, instituted in the Knox circuit court by the appellants against the appellees, to compel them to account for moneys claimed to be due the appellants from their deceased grandfather, who had been their guardian. The action rests on section 2442, Rev. St. 1881. There was a trial and judgment for the appellees in the court below. The errors assigned are as follows: (1) The court erred in overruling the motion to strike out the second paragraph of the supplemental answer. (2) The court erred in overruling the demurrer to the amended first paragraph of supplemental answer. (3) The court erred in overruling the demurrer to the second paragraph of supplemental answer. (4) The court erred in overruling the demurrer to the amended first and to the second paragraph of supplemental answer. The appellees assign one cross-error, to-wit, the court erred in overruling the demurrer to the complaint. The answers to which the errors assigned by the appellants refer are misnamed in the record. They are not supplemental to the original answers, but independent and additional, and should have been styled additional paragraphs of answer.

It is alleged, in substance, in the first paragraph, as amended, that on the —— day of January, 1887, while said cause was pending, by agreement the court referred said cause to William H. De Wolf, Esq., an attorney of said court, with authority to hear the evidence the parties might introduce, and make a finding of facts, together with his conclusion of law upon the issues joined, and report the same to the court, and that such

finding should be entered of record by the [92 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 which 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 Knox circuit court, and the merits of said cause fully heard; that by the terms of the said agreement the finding of the said De Wolf was to be made in parol and then entered of record, and that he made a parol finding upon the issues in the presence of the attorney engaged in said cause, and in open court, in the presence of the judge of said court, but by inadvertence the same was not by the judge entered upon the docket at the time, nor since; that the attorneys for the appellants object and refuse to allow the entry of the finding and the judgment to be made by said judge as agreed upon. Then follows a prayer that the appellants be not allowed to prosecute their suit, and that said finding and a judgment be entered as of the day of January, 1887, for the defend

ants.

The first paragraph of the answer is bad for several reasons. It is alleged that the agreement was made in the presence of the court, and was to be entered of record. The court can only speak by its record, and, until the agreement, as alleged, was entered of record, it was not a perfected agreement. Dennis v. Heath, 11 Smedes & M. 206. The court could take no notice of the agreement alleged until the parties called its attention thereto for its action, and it is not alleged that this was ever done. Nunc pro tunc entries relate to omitted proceedings of the court. Such proceedings, not having been entered of record at the proper time, are made now for them. But the purpose of the answer is not to obtain the benefit of an amended record as to past proceedings of the court, but, by proof of extraneous facts, to establish a record of proceedings which the appellees claim ought to have occurred, but never did occur. Raymond v. Smith, 1 Metc. (Ky.) 65, is very much in point. Gibson v. Chou

The substance of the second paragraph is as follows: That heretofore, to-wit, at the January term, 1887, of said court, the parties mutually agreed to submit all of said is-teau, 45 Mo. 171. The learned judge delivsues in said cause to arbitration, the same to be heard and tried before William H. De Wolf, Esq., an attorney of the said court; that pursuant to said agreement the same were heard and tried before said De Wolf; that all the evidence was heard by him as arbitrator in said cause, and he found the issues in said cause in favor of the appellees and against the appellants,-wherefore the appellants should not recover, etc.

ana.

The complaint is evidently bad for the reason that it fails to aver that Maria Callahan was, within six months preceding the final settlement of the estate of William S. Adams, the testator, either an insane person, an infant, or had been without the state of IndiWe are inclined to the opinion that the complaint is sufficient in this regard as to the appellant guardian. It is alleged, as preliminary to the statement of facts relating to the indebtedness, that the wards are the minor heirs, etc. But the action is brought by the appellants jointly; and, under the many decisions of this court, the complaint is bad because it fails to show a cause of action in favor of all of the appellants. Nave v. Hadley, 74 Ind. 155; Schee v. Wiseman, 79 Ind. 389; Insurance Co. v. Kittles, 81 Ind. 96; Brumfield v. Drook, 101 Ind. 190. It was necessary to a good complaint that the facts alleged bring the case clearly within the provisions of section 2442 as to all of the parties. Rinard v. West, 48 Ind. 159; Railroad Co. v. Heaston, 43 Ind. 172; Leonard v. Blair, 59 Ind. 510; Stevens v. Tucker, 73 Ind. 73; Gould v. Steyer, 75 Ind. 50; McCurdy v. Bowes, 88 Ind. 583; Rinard v. West,

ering the opinion says: "It is true, as argued by the appellants, that the record may be amended in certain cases; but there must invariably be something to amend by. The effort in this case is not, however, to amend the record, but actually to establish a record which has no existence, by proof of extraneous facts." The court could not amend its record, because there was nothing to amend by. Williams v. Henderson, 90 Ind. 577; Chissom v. Barbour, 100 Ind. 5; Johnson v. Moore, 112 Ind. 91, 13 N. E. Rep. 106; Makepeace v. Lukens, 27 Ind. 435; Schoonover v. Reed, 65 Ind. 313.

We are inclined to the opinion that the second paragraph was a good answer, notwithstanding our statutory provisions in relation to arbitrations. The rules of the common law relating thereto are still in force. At common law there might be one or more arbitrators, and the agreement thereto and the award rest wholly in parol. Dilks v. Hammond, 86 Ind. 563; Webb v. Zeller, 70 Ind. 408; Miller v. Good wine, 29 Ind. 46; Sanford v. Wood, 49 Ind. 165. The award when made could be pleaded in bar of the action upon the original claim. Walters v. Hutchins, 29 Ind. 136; Insurance Co. v. Brehm, 88 Ind. 578.

There has been some controversy as to whether an agreement to submit to arbitration when a suit is pending had the effect to discontinue the action; but the weight of authority and of reason seem to be that it does not. Nettleton v. Gridley, 21 Conn. 531; Lary v. Goodnow, 48 N. H. 170; Paulison v. Halsey, 38 N. J. Law, 488. There is no

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