pany for coal at $6.50 a ton, which they sold [ was not mentioned, but it was intended that at about $12 a ton, and the people were so the corporation should have it, and did have anxious to get it that a great deal of it was it, and when the property and capital stock taken from the cars without handling. They were sold to Bendixen a lease was given him sold a great deal of coal at that time at a for five years for $1 per month. large profit, and the sales under those con- valuations, they were a matter of judginent, ditions in January, 1903, just before the in- and we would not feel that we would be corporation, amounted to over 622 tons, justified in disturbing them. As to accounts which at the same rate would amount to receivable, Westcott testified that his recol7,500 tons a year. There was no reason, from lection was they amounted to about $6,500, the history of the business, to suppose that and Stephens said that he did not remember in the future it would amount to 5,000 tons what the accounts receivable were; that with a year, or that the profits of the business cash on hand they amounted to over $8,000, would be $4,000. The sales in November, but he could not state the proportion. There December, and January were in the winter was no direct evidence what the accounts season, and at no other time had the plain- were worth, or what was collected on them. tiffs in error sold any such amount. The It is contended that it appears from subsegood will of a business may be of very great quent receipts and expenses that only $760 value in the probability that old customers was collected, but the court cannot say that of a concern will continue their custom and the allowance by the chancellor of $2,300 recommend it to others, and the value is the was wrong. It was admitted in the Appelsum which any person would be willing to late Court that there was a mistake of $140 give for the chance of being able to keep the against the plaintiffs in error. On the other trade connected with the place where busi- hand, the plaintiffs in error counted their ness has been carried on with a profit. Any charter at $200. It had cost them $70, and person contemplating a purchase of this prop- if it was a proper charge it was worth no erty and business, upon investigation would more, and the difference about equaled the learn that it had not been profitable except $140. Everything considered, the decree of for a period in the winter season when the the chancellor was substantially right, and a monopoly existed, and we agree with the further accounting would not be justifiable. chancellor that the alleged good will of the business had no value. In argument much is made of the fact that the partnership was a going concern. Of course, if it were not a going concern, but had ceased to exist as a business, the property would not have had any value for business uses, but if a going concern has made no money no one would pay any more for it because it was going. The errors assigned cannot be sustained. [4] The cross-errors question the allowance of $5,000 made by the Appellate Court for good will, and the valuations of $3,500 for coal sheds, $3,000 for the land and switch track, the allowance of more than $760 for outstanding accounts receivable, and the allowance of $200 for the charter of the company. In considering the assignment of errors we have already stated our conclusion as to good will, and the cross-error respecting the same is sustained. It would not profit, any one to recite the testimony concerning the value of the coal sheds and coal, the horses, wagons, and implements and the free use of the land and switch track, the title of which remained in plaintiffs in error. The free use of the land and switch track [5, 6] Property may be taken in payment for stock, but it must be done by a valid conproperty for capital stock is no payment extract of bargain and sale. Payment with cept to the extent of the true value of the property, and if property is taken at an overvaluation the stockholders are liable to make up the deficiency. Farwell v. Great Western Telegraph Co., 161 Ill. 522, 44 N. E. 891; Sprague v. National Bank of America, 172 Ill. 149, 50 N. E. 19, 42 L. R. A. 606, 64 Am. St. Rep. 17; Gillett v. Chicago Title & Trust Co., 230 Ill. 373, 82 N. E. 891. The law required the plaintiffs in error, in paying for their stock, to give money or money's worth to the full amount of their subscriptions. The property was not the equivalent of $25,000 in cash, but the plaintiffs in error, as both sellers and buyers, took their partnership property at an overvaluation. Capital stock is a trust fund for the security of creditors, and the plaintiffs in error are bound to make it good. Therefore the judgment of the Appellate Court is reversed, and the decree of the superior court affirmed. Judgment of Appellate Court reversed. 8. CRIMINAL LAW 11661⁄2 (12)—HARMLESS ERROR; REMARK OF COURT AS TO DEFEND ANT'S TESTIMONY. In a prosecution for murder, resulting in conviction of manslaughter, error of the trial court in remarking, during the examination of defendant as a witness through an interpreter, defendant's counsel having objected to a question as assuming something, that it did not as RIGHT TO BE IN PLACE OF AFFRAY. Defendant's belief that he was in a place where he had a right to be does not make his right of self-defense in itself, but goes to rebut his bad faith in bringing on the conflict, and, coupled with the fact that he was so suddenly attacked with a deadly weapon there was no opportunity to escape, perfects his right of self-sume anything, defendant having testified to defense. If the defendant desired that certain principles be more particularly applied to his theory of the case in the instructions, he should have tendered instructions on such phase of the case. 3. HOMICIDE 300(15)-INSTRUCTION AS TO SELF-DEFENSE. In a prosecution for murder, resulting in conviction of manslaughter, instructions basing defendant's right to self-defense on his being in a place where he had a right to be, so far as his assailant was concerned, held not erroneous because not taking into account defendant's right when suddenly attacked in a place where he has no right to be, and his belief in his right to be in such place. going forward and going away and going back, held harmless. Appeal from Superior Court, Lake County; Walter T. Hardy, Judge. Michael Colondro was convicted of manslaughter, and appeals. Affirmed. C. B. Tinkham, of Hammond, and Ralph W. Ross, of Gary, for appellant. Ele Stansbury and A. B. Cronk, both of Indianapolis, and Dale F. Stansbury, of Covington, for the State. TOWNSEND, J. Appellant was indicted for murder, tried by a jury, and convicted of manslaughter. [1-3] He complains of the court's instructions 7, 9, and 10 on the subject of self-defense, because they base appellant's right to self-defense on his being "in a place where he had a right to be so far as his assailant was concerned." Appellant's counsel says that none of these instructions takes into account the proposition that a person, in a place where he has no right to be so far as his assailant is concerned, may be suddenly 5. CRIMINAL LAW 814(18)-ABSTRACT IN-attacked with a deadly weapon and driven STRUCTION ON CREDIBILITY OF WITNESSES to the wall. Counsel further claims error ERRONEOUS. In a prosecution for murder, instruction that, if the jury believed from the evidence that the moral character of any witness had been successfully impeached, the fact might be considered in estimating the weight of his testimony, held erroneous as without support in evidence. 6. CRIMINAL LAW 1172(6)-HARMLESS ERROR; ABSTRACT INSTRUCTION AS TO CHARACTER OF WITNESS. In a prosecution for murder, resulting in conviction of manslaughter, error in instructing without support in evidence that the moral character of any witness successfully impeached might be considered in determining the weight of his testimony held harmless to defendant, where the evidence clearly established guilt. 7. CRIMINAL LAW 656(3) - REMARK COURT ERRONEOUS AS COMMENT ON DEFENDANT'S TESTIMONY. In a prosecution for murder, resulting in conviction of manslaughter, the remark of the trial judge, during defendant's examination as a witness through an interpreter, on exception to a question taken by defendant's counsel, that the question was not improper as assuming any in these instructions because they do not take into account appellant's good faith in believing that he was where he had a right to be so far as his assailant is concerned. In counsel's second claim he is not quite accurate. Appellant's belief that he was in a place where he had a right to be does not make his right of self-defense; but it goes to rebut his bad faith in bringing on the conflict, and, when coupled with the fact that he is so suddenly attacked with a deadly weapon that there is no opportunity to escape, his right of self-defense is perfect. Appellant's counsel says that there was evidence from which the jury might infer that appellant was knowingly where he had no right to be, but that this evidence was only shadowy and not legally conclusive, and that therefore these instructions misled the jury into thinking that appellant could never have the right of self-defense when in a place where he had no right to be, so far as his assailant is concerned. Appellant admits that these instructions given by the court are correct in principle, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes but his complaint is that these principles are [tion, appellant came from his work between not elaborately enough applied to his theory 5 and 6 o'clock; that, instead of walking of defense. If appellant wanted these principles more particularly applied to his theory, he should have tendered instructions on this phase of the case. Colee v. State, 75 Ind. 511, 516. Counsel does not call our attention to any instructions tendered by him and refused by the court. The court did not err in the above instructions on the points claimed by the appellant. [4] Appellant next complains of the court's instruction No. 18. This instruction told the jury, in substance, that, if they found that any witness had made statements out of court at variance to his testimony on the stand, this might tend to impeach the recollection or the truthfulness of the witness, and the jury might consider this in determining the weight to be given to the testimony of such witness. Thus far the instruction is correct and is favorable to appellant, for he attempted to show that some of the state's witnesses had made statements out of court at variance to their testimony on the stand. [5, 6] The court, however, closed the above instruction with this sentence: "And if you believe from the evidence that the moral character of any witness, or witnesses, has been successfully impeached on this trial, then that fact may be taken into consideration in estimating what weight you ought to give to their testimony." This sentence in the instruction covers a phase of the law on which there is no evidence in the case. It was therefore erroneous and should not have been given. Instructions should announce the law applicable to the evidence. It is error for the court to announce propositions of law, even though correct, where there is no evidence on that subject. The reason for this is obvious. The jury are trying to apply all of the instructions of the court to the evidence, and the court, by instructing outside of the evidence, misleads the jury by practically telling them that there is some evidence on the subject. This error of the court, however, is a very slight one. It is on a subsidiary matter not like a principle of law going to the very gist of the charge or the defense. It was error, but not reversible error. The evidence in this case shows that appellant was clearly and conclusively guilty of all that the jury found by their verdict; therefore this court should not be nice to find error upon which to reverse the judgment. The evidence shows that appellant was a trackwalker on a railroad in the steel company's plant at Gary, Ind.; that the decedent was a watchman at a bridge over the Calumet river; that he (decedent) was stationed at the end of the bridge next to the plant to prevent persons from going over this bridge; that, on the evening in ques along the road where workmen were walking, he walked 10 or 15 feet from the road on the side next to this watchman; that the watchman saw him and told him to get back on the road; that thereupon a physical encounter occurred between the two; that both went into their pockets for knives; that the watchman got his knife out first and struck several blows; that one blow above appellant's eye caused blood to run down over his face; that appellant broke away from decedent; that after this first encounter, and at the time appellant broke away from the decedent, they were 10 or 15 feet apart; that a foreman, who was in an office about three hundred feet away from the controversy, seeing this first combat, came out and remonstrated with appellant and decedent and told appellant to go home; that decedent paid no attention to appellant at this time, but was standing still some distance from appellant; that after this foreman had gone, or while he was going, back to his office to call some one up on the telephone, appellant kept walking towards decedent, with his right hand in his pocket, talking to the decedent and gesticulating with his left hand; that at this time decedent stood in the roadway with his hands at his side, and apparently paid no attention to appellant; that appellant kept walking towards decedent and talking; that finally he suddenly lunged at decedent and struck him a back-handed blow with his right hand; that decedent did not move while for an instant after the blow was struck; appellant was thus going towards him, nor that appellant slowly backed away after delivering this blow; that some one in the crowd of workmen called decedent's attention to a knife sticking in his breast in the region of his heart; that thereupon decedent plucked this knife from his breast, pursued appellant, striking him in the back; that appellant kept running and escaped decedent; that decedent turned around and walked back a short distance in a zigzag manner, sank down, and died from this knife wound. All of the evidence showed that there was a very appreciable time between the first encounter and the time appellant struck the fatal blow; that decedent indicated by his conduct that he considered the encounter over; and that appellant, out of anger and in a spirit of revenge, came back and struck the fatal blow when there was no occasion for self-defense at all. The above circumstances were testified to by several witnesses with such slight variation in details as to show truthfulness and disinterestedness. Even appellant's own testimony, when taken all together, does not sharply contradict this. True, he claims it was all one encounter, but he admits that (125 N.E.) he was away from decedent three or four or five feet at the time between the first encounter and the second, when he drew his knife and struck the fatal blow, but claims the decedent was holding him with his left hand and striking with his right. In this connection, it is important to note that the evidence shows that appellant is 36 years old, 5 feet 5 inches tall, and weighs from 150 to 152 pounds; that decedent was 29 years old, 5 feet 8 inches tall, and weighed about 136 pounds. [7, 8] We have thus touched upon the main points in the evidence to throw light on the previous discussion of error, and also that it may be kept in view in what we shall say on another error claimed by appellant. charge the jury. This we need not decide, for, while we hold that the remark of the court was improper and was error, it was harmless error in this case. If the evidence in this case were close on the subject of self-defense, we would have a different question; but it is far from close. As we said before, appellant's own story taken as a whole is not sharply in conflict with the circumstances detailed by the state's witnesses. This pathway, near which this fight took place, was filled with many persons who saw this encounter. No one was produced to corroborate appellant's weak claim of self-defense. Appellant immediately after the killing went to one of the counsel who defended him in the trial. This counsel went with In the course of the cross-examination, ap- him to the prosecuting attorney and to the pellant was asked: "Q. After you got loose from Mr. Spradley (decedent), what did you do? A. I saw myself all full of blood, and I was excited, and I put my hand in my pocket and pulled out my knife and struck him. "Q. What was he doing while you were taking out your knife? A. He was holding me, coming closer." Counsel for the defendant interposed at this point, saying, "Give us everything." Whereupon this further answer was made by appellant, through the interpreter: "A. He said about three or four feet from him." Then came this question by the state: "Q. He was not holding you then, if he was three or four feet from you? A. He says, his arm is long enough to reach three or four feet, he says. Then this question on cross-examination, through an interpreter: "Q. How far away from Spradley were you when you got your knife out? A. About four feet, he says, or five feet." Then this question followed immediately by the state: "Q. Did you talk to him (Spradley) when you were going up to him just before you stabbed him? "Counsel for the Defendant: I object to the question. The question assumes that he walked up to him. "Court: Answer the question; take an exception if you want it. "Defendant's Counsel: The question assumes something, Judge, that is not fair. "Court: I do not think so. He testified about going forward and going away and going back. "Counsel for the Defendant: I take exception to the remarks of the court and his interpretation of what the evidence was. "Court: You can take an exception." court and arranged for recognizance. Thus, from the very beginning, appellant had an opportunity to see and interview witnesses, and to have counsel do so for him. Under the evidence in this case, with perfect instructions and exemplary conduct every instant of the time on the part of both the court and counsel, twelve honest men of ordinary intelligence could not have found appellant guilty of a less offense than voluntary manslaughter-exactly what they did find him guilty of. There being no reversible error in the record, the judgment of the trial court is affirmed. Where a wife died intestate, her husband, by Burns' Ann. St. 1914, § 3016, became seized immediately of an undivided one-third part of her realty, but, his interest being subject to a mortgage executed by her to secure part of the purchase price, in the execution of which he had joined, the court, on petition of her administrator, had authority to order the whole of the realty sold to pay the mortgage debt. 2. EXECUTORS AND ADMINISTRATORS 39REALTY SUBJECT TO DEBTS. Under the statute the real estate of an intestate is as completely subject to his debts as his personal estate. 325 3. EXECUTORS AND ADMINISTRATORS SALE FOR PAYMENT OF DEBTS; WASTING OF ASSETS DOES NOT RELIEVE REALTY. Wasting of the personal assets of the decedent's estate by the executor or administrator does not relieve the realty from liability The state contends that appellant presents no question because he did not move to withdraw the submission of the case and dis- to sale for the debts. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. 407- or lien on the land, and have the same determined. 4. EXECUTORS AND ADMINISTRATORS CHARGEABLE TO PURCHASER. An administrator's malfeasance in misapplying the proceeds of a sale of realty to pay debts cannot be charged against the purchaser. 5. DESCENT AND DISTRIBUTION 133-PURCHASER FROM HEIR TAKES SUBJECT TO SALE FOR PAYMENT OF ANCESTOR'S DEBTS. A purchaser of real estate of a decedent from the heir is bound to know that until the estate is finally settled sale of the real estate may become necessary to pay debts, and in the event of such a sale the purchaser's title fails wholly. 12. EXECUTORS AND ADMINISTRATORS 336PETITION TO SELL REALTY FOR DEBTS. Petition by an administrator to sell realty to pay his decedent's debts, which substantially complies with Burns' Ann. St. 1914, § 2854, is sufficient. 335 13. EXECUTORS AND ADMINISTRATORS On petition to sell a deceased wife's realty parties to the proceedings persons holding judgto pay her debts, it was not necessary to make ments against the surviving husband, who had 6. DESCENT AND DISTRIBUTION 153-RIGHT a third interest in the land under Burns' Ann. OF JUDGMENT CREDITOR OF HEIR. Judgment creditor of decedent's heir has no greater rights in decedent's realty than the heir. 7. EXECUTORS AND ADMINISTRATORS 327SALE OF REALTY TO PAY DEBTS; DEVISE. Where a testator has devised real estate, charging it with the payment of his debts, his personal representative, if the personal estate be insufficient, may obtain an order to sell the lands, the devise being no obstacle. 8. DESCENT AND DISTRIBUTION 75-WILLS mm 836 — REALTY SUBJECT TO DECEDENT'S DEBTS. St. 1914, § 3016, and they were not entitled to any notice of the proceedings. Appeal from Circuit Court, Jay County; Jacob F. Denney, Judge. Action by the Globe Mercantile Company against Perry D. Perkeypile and another. From judgment for defendants, plaintiff appeals. Reversed, with instructions to restate a conclusion of law, and to render judgment for plaintiff thereon. Superseding former opinions (App.) 121 N. E. 844; 123 N. E. 647. James R. Fleming and Malcolm V. Skin Heirs and devisees take realty subject to the ner, both of Portland, for appellant. indebtedness of deceased. RIGHTS OF CREDITORS OF SURVIVING HUS- S. A. D. Whipple & Son, of Portland, for appellees. WILLOUGHBY, J. This was an action by Where deceased wife's land was sold for appellant against appellees for damages for payment of the purchase-money mortgage, in breach of the covenants of warranty in a which the husband, successor of the wife in deed to certain real estate. The complaint ownership of one-third of the land under Burns' was in one paragraph in the usual form. The Ann. St. 1914, § 3016, had joined, the hus- appellees filed an answer in four paragraphs. band had no interest as against the purchase- The first is a general denial. The second money mortgage, and his creditor had a lien admits the execution of the deed set out in on no greater interest than he had, and no appellant's complaint for the consideration right to collect his debt out of any interest ex-named, and then alleges in detail the source cept the husband's, which was only the right of their title to the real estate described to the balance of the fund after payment of therein, which is the same as is found in the purchase-money mortgage. An administrator's sale to pay the ancestor's debts, properly petitioned for and regularly conducted, destroys the lien on the land of any judgment against the heir. 11. EXECUTORS AND ADMINISTRATORS 335 SALE OF REALTY FOR DEBTS; HEIR OR DEV ISEE NOT NECESSARY BUT PROPER PARTY. more general terms in the special finding of facts hereinafter set out. The third is a partial answer, pleading payment of certain of the alleged liens in question. The fourth is also a partial answer, alleging that appellant, as part of the consideration for said real estate, retained from the purchase price thereof the amount of certain liens in question, and agreed to pay them. Appellant filed a demurrer to the second paragraph of appellees' answer for want of facts, which was overruled. It then filed a Burns' Ann. St. 1914, § 2854, defining the reply in general denial to all paragraphs requisites of a petition to sell realty for pay-thereof except the first. The issues thus ment of a decedent's debts, does not require the holder of a judgment against the heir or devisee of the realty to be made a party to the proceeding, though, under section 2800, any person not a party to the petition may be admitted as a party, and set up any interest in formed were submitted for trial, and upon request of the parties the court made a special finding of facts, and stated its conclusions of law thereon. The finding of facts is as follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |