ported to have been served on the attorneys of the plaintiff, and upon which an agreement with the plaintiff's attorneys was indorsed, consenting to the setting aside of the default. He states that Pickler told him to go to the court, and, when the motion should be called, to state to the court that it was an agreed motion, and that he did so, and that the default was set aside. An expert witness, who swears that he is acquainted with the handwriting of the respondent, Pickler, and has seen him write, also swears that the name, Richard Curran, signed to the affidavit of merits, is in the handwriting of the respondent, Pickler. We think that the testimony of Curran and Branaman, of Henry L. Tolman, the expert, and of Dorn, taken together, overcome the denial as to this matter of the respondent, Pickler. We can come to no other conclusion than that he prepared and filed the sworn plea, dated September 11, 1896.

But if there are any doubts about the correctness of the statement already made upon this branch of this subject, there can be no doubt about the guilty participation of the respondent in what subsequently took place. The attorneys for the plaintiff in the suit against Curran made a motion on September 17, 1896, to vacate the order entered on September 12, 1896, which set aside the default, upon the ground that the attorneys of the plaintiff had had no notice of the motion to set aside such default. In resistance of the motion to set aside the default, the respondent prepared and presented to the judge of the superior court an affidavit purporting to have been signed and sworn to by Richard Curran on September 19, 1896. The signature to this affidavit was forged; the proof being clear that Curran did not sign it. Before, however, the presentation of this affidavit, and on September 14, 1896, a paper purporting to be a withdrawal of Branaman as attorney for Curran was filed in the cause, and on the same day the appearance of the respondent as attorney for defendant, Curran, was filed in the cause. An order was entered on the respondent, Pickler, to produce the affidavit of September 19th, but he did not do so. Respond

ent claims that the affidavit of September 19th was lost; that it must have been left on the clerk's desk, or swept away by the janitor, or taken away by some one, and that he was unable to produce it. Respondent admits that the signature to the affidavit was not the signature of Richard Curran. He states that he drew the affidavit for Currar to sign, and called at Curran's office, but Cu ran was absent, and that he left the affidavi there upon Curran's desk with a note requesting that the same be signed and returned to him; that he found the affidavit in an envelope on his desk next morning, and that he read the affidavit before the judge of the superior court. The motion to set aside the order vacating the default was continued until October 10, 1896. When this motion came on for hearing, the respondent resisted the same,

and presented, in resistance thereof, two affidavits, one purporting to be signed by Richard Curran, and purporting to have been sworn to by Richard Curran before David E. Towne, notary public, on October 7, 1896, and the other purporting to be signed by one Tim Dean, and purporting to have been sworn to on the 8th day of October, 1896, before David E. Towne, notary public. At this time Branaman, according to the testimony of the respondent, was not in Chicago, but in Indiana, or somewhere out of the state of Illinois, and therefore could have had nothing to do with the preparation or presentation of the affidavits of October 7th and 8th. These affidavits were read by the respondent before a judge of the superior court of Cook county on October 10, 1896. The evidence is clear and conclusive that the body of these affidavits and the indorsements upon the back thereof were in the handwriting of the respondent Pickler.

As to the affidavit of October 7th, purporting to be signed by Richard Curran, the testimony is clear and overwhelming that the signature thereto is not the signature of Richard Curran, and that Richard Curran never signed the affidavit. As to the affidavit purporting to have been made by Timothy Dean, no such man is known, or ever was heard of by anybody, so far as the record shows. Towne, the notary before whom the affidavit of October 7, 1896, purports to have been sworn to by Richard Curran, is not willing to say that the Richard Curran who is the plaintiff in this suit appeared before him and signed the same. He says: "I have no distinct recollection who came before me when I drew this jurat. I would say that my mind was an absolute blank as to who came before me at that time. I have no distinct recollection as to the next affidavit purporting to be signed by Timothy Dean. I do not know anybody personally named Tim Dean or Timothy Dean." Richard Curran swears that he never signed the affidavit, and that the signature thereto is not his signature. At this time Pickler had an office on the eighth floor of the Marquette Building, and the office of Towne was on the same floor, though four or five doors removed from the office of the respondent. The respondent denies that he signed the names of Richard Curran and Timothy Dean to these affidavits. He makes the same statements, in regard to the manner in which he came into possession of the affidavits after the jurats were attached to them, which he makes in regard to the affidavit of September 19th. The testimony of the respondent is that, after preparing the affidavits, filed October 10th, of Richard Curran and Timothy Dean, he left them at Curran's office, unsigned, upon Curran's desk, with a note that they be signed and sworn to and returned to him; that before October 10th, when the affidavits were used to resist the motion, he found them on his desk among his mail, signed and sworn to, as they appeared when they were presented

in court. He says that he does not know who signed the affidavit purporting to be signed by Curran, or who signed the affidavit purporting to be signed by Timothy Dean. He says that the affidavits, after be ing signed and sworn to, were left on his desk, but whether they came by mail or by messenger he is unable to state. Curran, however, says that he never found on his desk, nor anywhere else in his office, the affidavit of himself sworn to before Towne on October 7, 1896, and the affidavit of Tim Dean sworn to on October 8, 1896, before Towne; and that he never saw the affidavits until he saw them in the superior court. He swears clearly and positively that he never took these affidavits, either before or after they were signed, or sent them, to the office of Charles Pickler, the respondent. He furthermore says that he never knew such affidavits had been made or filed in the case until he was cited to appear before the superior court in answer to a charge of contempt of court. Mr. Tolman, who was acquainted with the handwriting of the respondent and had seen him write, testifies that the signatures of Richard Curran and Tim Dean to these affidavits were in the handwriting of the respondent, Pickler. The respondent says that he drew the affidavits from information given to him by Branaman. The affidavit purporting to be signed by Richard Curran states that he (Curran) is not the person who signed the note sued upon, and never had any dealings with the plaintiff in the suit. The testimony of Curran shows that this statement was untrue. Curran, in his testimony, says, in substance, that he had no defense to the suit, and that he did sign the note, but that he merely wanted time to raise money to pay it. The affidavit purporting to be signed by Tim Dean assumes to state the substance of a conversation which Dean is alleged to have had with Branaman at Hammond, Ind., on October 5, 1896.

This affida

vit bears internal evidence contradictory of the statement made by the respondent, that the facts stated in it were furnished to the respondent by Branaman. If any such interview took place between the man named Dean and Branaman at Hammond, Ind., on October 5, 1896, the respondent must have been informed of it by Dean. Dean does not appear in this case, and does not appear to have been known to anybody in the case. The respondent has not explained his knowledge of Dean, or his connection with him, or how he happened to draw an affidavit which was to be signed by Dean. The name Timothy Dean, as the name of the affiant, appears in the body of the affidavit in the respondent's handwriting, and no explanation is given by him as to how he obtained the name Dean, or how he learned what Dean could swear to, so as to draw the affidavit. Curran did not give him the name of Dean, because Curran had never heard of any such man. He says in his testimony

that he "based those affidavits upon my memorandum of facts which had been communicated to me by Branaman." It is difficult to understand how this could have been so, when Branaman was out of the state, and when the matter set up in the affidavit purporting to have been signed by Dean could not have had any existence before October 5, 1896.

After a careful examination of all the evidence in the record upon both of the charges made against the respondent, we are of the opinion that those charges are sustained by the proofs. Let the rule in this case be made absolute, and let an order be entered striking the name of Charles | Pickler, the respondent herein, from the roll of attorneys of this court, in accordance with the prayer of the information herein filed. Rule made absolute.

(155 Ind. 702)

LARNED v. ELLIOTT et al. (Supreme Court of Indiana. July 10, 1900.) CONSTITUTIONAL LAW ELECTION - TOWNSHIP OFFICERS-TERM OF OFFICE.

Acts 1897, p. 64, providing that the election of township trustees and assessors shall be changed from the general election in November, 1898, to the general election in November, 1900, and at the general election every fourth year thereafter, and that they shall qualify and enter on the duties of their office at the. expiration of 10 days after such election, is not a violation of Const. art. 15, § 2, providing that the general assembly shall not create any office the tenure of which shall be longer than four years, and trustees and assessors are to be elected at the November election, 1900.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Action by James M. Larned against George B. Elliott and others. From a judgment for defendants, plaintiff appeals. Affirmed.

J. J. M. La Follette and W. W. Thornton, for appellant. W. L. Taylor, Atty. Gen., and Merrill Moores, for appellees.

PER CURIAM. If the laws of this state provide for the election of township trustees and township assessors at the November election, 1900, this case must be affirmed; otherwise, it must be reversed. An act of the legislature approved February 25, 1897 (Acts 1897, p. 64), provides "that the time for holding the election of township trustees and assessors shall be changed from the general election in November, 1898, to the general election in November, 1900, and at the general election every fourth year thereafter, and that said trustees and assessors shall qualify and enter upon the discharge of the duties of their respective offices at the expiration of ten days after such election." Appellant insists, however, that said act is unconstitutional and void, be cause it extended the terms of office of township trustees and assessors beyond the period of four years, in violation of section

2, art. 15, of the constitution, which provides: "But the general assembly shall not create any office the tenure of which shall be longer than four years." The same objection was urged against the validity of said act in State v. Menaugh, 151 Ind. 260, 51 N. E. 117, 357, and this court held that said act was not in violation of said provision of the constitution. See, also, State v. Burke (Ind. Sup.) 57 N. E. 509; Scott v. State, 151 Ind. 556, 561, 52 N. E. 163; State v. Compson, 34 Or. 25, 54 Pac. 349. After a careful consideration of the question involved, we adhere to the conclusion reached in the case of State v. Menaugh, supra, that said act of 1897 (Acts 1897, p. 64) is constitutional, and that township trustees and assessors are to be elected at the November election, 1900, and enter upon the discharge of the duties of their respective offices, as provided in said act. The judg ment of the court below is therefore affirmed.

(155 Ind. 575)

MARK V. NORTH,1 (Supreme Court of Indiana. June 29, 1900.)

APPEAL AND ERROR-RECORD-FILING-VENUE-CANCELLATION OF INSTRUMENTS-ASSIGNMENT BY PERSON OF UNSOUND MINDPLEADING-MISJOINDER OF CAUSES OF ACTION-OBJECTION.

1. Horner's Rev. St. 1897, §§ 2454, 2455, authorize an appeal to the supreme court from a decision connected with a decedent's estate, provided the appeal bond is filed within 10 days after the rendition of the judgment complained of, and require the transcript to be filed within 30 days after filing the bond. Section 633 authorizes general appeals to the supreme court to be taken within one year after the rendition of judgment. Held, that an action by an administrator to set aside an assignment of a lease held by his decedent was not an action relating to the estate, and hence an appeal might be properly perfected, under section 633, at any time within a year.

2. An action by an administrator to set aside an assignment of a lease made by his decedent on the ground of fraud and want of decedent's capacity is an action to recover personal property, and may be brought in the county where defendant resides; for, since it does not involve the validity of the lease, no interest in the lands is involved, so as to require the action to be brought in the county where the land is situated.

3. A complaint, in an action by an administrator to set aside an assignment of personal property for want of decedent's capacity and for fraud and undue influence, alleging that deceased assigned and delivered the property without consideration, and that at the time she was an old woman of unsound mind, and incapable of managing her estate or making a contract, as defendant then well knew, and that she remained a person of unsound mind until her death, was not demurrable, as failing to state a cause of action.

4. Where a complaint to set aside an assignment by plaintiff's decedent, on the ground of unsound mind, stated a cause of action on that ground, the fact that the complaint also stated facts sufficient to authorize the relief prayed for, on the ground of fraud, will not render the complaint demurrable as failing to state a cause of action.

a

5. Where defendant failed to object to complaint at the trial on the ground of misjoinRehearing denied.

der of causes of action, and made no objection that different grounds for relief were alleged in the same paragraph, he cannot object on ap peal that the complaint did not state a cause of action.

6. Where a complaint to set aside certain assignments by plaintiff's decedent alleged that they were procured by defendant while decedent was of unsound mind, which fact was known to defendant, and that defendant induced decedent to leave her home, and live with defendant, by fraudulent representations, etc., and that decedent, while incapable of understanding the nature of the act, and wholly without consideration, assigned the property to defendant, the allegations regarding decedent's living with defendant must be construed merely as setting forth a part of the fraudulent scheme pursued by defendant to subject intestate to the dominance of her will, and not as a consideration for the assignment, and hence the complaint was not demurrable for failure to offer to restore to defendant the value of decedent's maintenance.

7. Where an offer of proof is made subsequent to the entry of an exception to a ruling sustaining an objection to evidence called for by a question, no question is reserved for review on appeal, though an exception is taken to the ruling sustaining an objection to the offered proof.

Appeal from circuit court, Delaware county; W. O. Barnard, Special Judge. Action by Jasper North, as administrator, From a judgment in against Lydia Mark. favor of plaintiff, defendant appeals. firmed.

Af

Gregory, Silverburg & Lotz, for appellant. Templer, Ball & Templer, for appellee.

HADLEY, J. The appellee, as administrator of Amelia H. Luther, deceased, brought this suit in the Delaware circuit court against the appellant, a resident of Delaware county, to set aside the assignment of a lease, held by the decedent as lessee for a term of years, on three camp-meeting lots owned by the Indiana Association of Spiritualists, for which she had agreed to pay five dollars per annum rent, situate in Madison county, and also the assignment of two promissory notes, and mortgage securing one of the same on real estate situate in Marion county, for unsoundness of mind, fraud, and undue influence. Demurrer to the complaint was overruled. Trial upon the general issue. Finding and judgment for the plaintiff. The errors assigned call in question the jurisdiction of the court over the subject-matter of the action, the sufficiency of the complaint, and the action of the court in overruling appellant's motion in arrest of judgment and for a new trial.

We are first confronted with appellee's motion to dismiss the appeal for the reason that the transcript was not filed in this court within 30 days after the filing of the appeal bond, as required by sections 2009, 2610, Burns' Rev. St. 1894 (sections 2454, 2455, Horner's Rev. St. 1897). The transcript was filed in this court within one year from final judgment, but not within 30 days from the filling of the appeal bond. The statutes relied upon in this motion are special provisions pre

scribing the procedure in the settlement of decedents' estates, and apply only where probate jurisdiction is being exercised, and not to appeals in actions authorized by the Code. Koons v. Mellett, 121 Ind. 585, 590, 23 N. E. 95, 7 L. R. A. 231; Walker v. Steele, 121 Ind. 436, 445, 22 N. E. 142; 23 N. E. 271; Mason v. Roll, 130 Ind. 260, 29 N. E. 1135. This action by the administrator to recover the possession of assets of the estate taken from the decedent by the alleged wrongful act of the defendant did not "grow out of a matter connected with the settlement of a decedent's estate," and its prosecution did not invoke the exercise of probate jurisdiction, but it belongs to that general class of actions authorized by the Code, and might have been brought in any county and in any circuit or superior court of the state where the defendant resided (Heller v. Clark, 103 Ind. 591, 3 N. E. 844), and is governed by section 645, Burns' Rev. St. 1894 (section 633, Horner's Rev. St. 1897).

It is argued that since the lease was on lands in Madison county, and the mortgage on lands in Marion county, the circuit court of Delaware county had no jurisdiction of the subject-matter of the action. We think otherwise. A lease of lands for a term of years is personal property, the title to which, upon the death of the holder, passes to the administrator, and not to the heirs. Smith V. Dodds, 35 Ind. 452, 456; Schee v. Wiseman, 79 Ind. 389, 392; Cunningham v. Baxley, 96 Ind. 367, 369.

There can be no question about the character of the notes and mortgage. An administrator succeeds to the title of his decedent in all personal property owned at the time of death. Section 2446, Burns' Rev. St. 1894 (section 2291, Horner's Rev. St. 1897), confers upon an administrator full power to maintain any suit, in any court of competent jurisdiction, for the recovery of possession of any personal property of the estate. Section 314, Burns' Rev. St. 1894 (section 312, Horner's Rev. St. 1897), provides that all actions except those before specified shall be brought in the county where the defendants or one of them reside. This action was brought in the county where the estate is pending, where the assignment complained of was made, where the defendant resides, and where she holds in possession the property in controversy.

The gist of the action is to recover the possession of personal property, assets of the estate. The ownership of the chattels is the real question. The validity of the assignment is an incident. In no sense does the action affect the integrity of the lease and mortgage themselves, or the rights of the lessor and mortgagor. The Delaware circuit court had jurisdiction. Tyler v. Wilkerson, 20 Ind. 473; Galentine v. Wood, 137 Ind. 532, 536, 35 N. E. 901.

The sufficiency of the complaint to state a cause of action is challenged by demurrer,

and by motion in arrest of judgment. Among a large amount of historical and useless matter, it is alleged in the complaint that the plaintiff's decedent, "on the 15th day of October, 1897, assigned and delivered, wholly without consideration, to the defendant" the certain notes, mortgage, and lease, and that at the time of said assignment "the said Amelia H. Luther was an old woman, feeble in body and of unsound mind, and incapable of managing her estate, and of making a contract, as the defendant then well knew and long had then well known, and the said Amelia continued from the time of making said assignment to the time of her death a person of unsound mind, and incapable of entering into a contract or managing her estate, as the defendant well knew, and still well knows." The complaint also abounds with averments of weakness of mind and fraud; and notice of disaffirmance by the plaintiff in his representative capacity, on the ground of mental unsoundness of his decedent, is also alleged.

The only question presented by the demurrer and by the record is, does the complaint state facts sufficient to constitute a cause of action? The objection that the complaint does not count upon any definite and certain theory is without substantial merit. The complaint is clearly grounded upon the unsoundness of mind of the decedent, and unquestionably states a good cause of action upon that ground; and the averments of weakness of mind and fraud, even if sufficient to state another cause of action upon this ground, will not accomplish the overthrow of the former. A complaint is good upon demurrer for insufficient facts, if from all its averments it states a single good cause of action. It is still good if it states a dozen. If the defendant had been in doubt, before the trial, as to the theory of the complaint, it would then have been an easy matter to clear the doubt away by a demurrer for misjoinder or by a motion to separate into paragraphs, and her failure to do either removes all just ground for complaint.

It was alleged in the complaint that Mrs. Luther had for many years been an ardent believer in spiritualism, and a public lecturer of national repute upon spiritualistic subjects, and the defendant, professing herself to be a spiritualist and a medium, and an acquaintance and friend of Mrs. Luther. by certain specified false and fraudulent representations induced Mrs. Luther to make said assignment of the notes, mortgage, and lease, and to deed to defendant certain real estate, and to quit the home which she then had with a granddaughter, and go with the defendant and make her home with the latter for the remainder of her life, and to receive from defendant care and maintenance and protection against evil influences; that, being so induced by the defendant, Mrs. Luther removed to the

defendant's home, taking with her all her personal belongings, and on November 15, 1897, pretended to execute said assignment and deed, and continued to live with the defendant to the 26th day of December following, when she died. Appellant further insists that the complaint is bad for want of an averment that the plaintiff had tendered or offered to restore to the defendant the value of the decedent's maintenance from November 15th to December 26th. Under the positive averment that said assignment was made wholly without consideration, we think the allegation of the complaint, with respect to the decedent's going to and remaining with the defendant till her death, must be construed, not as stating a consideration received for the assignment, but merely as setting forth a part of the scheme pursued by the defendant to bring and keep the decedent subject to her will, and cannot, therefore, be considered as going to the merits of the complaint.

Appellant complains of the ruling of the court in excluding certain testimony by Dr. Whitney. The record shows the following: "Q. Have you ever had any talk with her [Mrs. Luther] about her business or property? If so, tell the court what it was and what was said;" to which question the plaintiff objected, and the court sustained the objection; "to which ruling of the court the defendant at the time excepted." After having entered her exception to the ruling of the court, the defendant proceeded to state the tacts she proposed to elicit by the question, and the record proceeds: "To which the plaintiff objects. Thereupon the court sustained the plaintiff's objection, to which ruling of the court the defendant by counsel at the time excepted." The precise question arising here was before the court in Gunder v. Tibbits, 153 Ind., at page 607, 55 N. E. 768, where it was held, following many decisions of this court there cited, that such procedure presents no question for review. The principle is this: When objection is made to a question, it forms an issue upon the propriety of the question, and when the court rules upon the issue thus formed the incident is closed. A subsequent offer to prove goes for nothing, because the question is no longer open. То make an offer to prove effective, it should follow immediately after the adversary's objection, and before the court has ruled. When thus timely made, it enables the court to rule advisedly upon the pending question, and, when postponed until after the ruling, it can serve no useful purpose, and presents no question for further consideration. See, also, Rinkenberger v. Meyers (Ind. Sup.) 56 N. E. 913; Whitney v. State (Ind. Sup.) 57 N. E. 398, and cases cited. We find no available error in the record. Judgment affirmed.

BAKER, C. J., did not participate.

(155 Ind. 176)

HANSON v. CRUSE et al. (Supreme Court of Indiana. June 28, 1900.) LANDLORD AND TENANT-CONTRACT FOR REPAIRS DAMAGES-DEMURRER-JUDGMENT. 1. Damages for breach of contract by a landlord to repair obvious defects does not include damages to health of the tenant by exposure from absence of the repairs, such damages be ing too remote.

2. A general order sustaining all the demurrers of defendants to the complaint will not be reversed, where the complaint is bad. though the demurrer, for want of jurisdiction, is not well founded, and some of the demurrers are improperly drafted.

Appeal from superior court, Marion county; L. M. Harvey, Judge.

Action by Susan A. Hanson against James S. Cruse and another, executors, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

G. R. Estabrook and W. V. Rooker, for appellant. Kealing & Hugg, for appellees.

BAKER, C. J. Appellant set forth in her complaint substantially these facts: On February 26, 1898, appellees owned a dwelling house in Indianapolis, which was out of repair, in that an outside door at the rear of the house was missing, some panes were broken out of windows, and certain locks were gone, so that doors could not be closed. On that day appellees proposed to appellant to repair the house in the particulars mentioned, and to rent it to her for one month from that day for nine dollars, and appellant thereupon accepted the proposition, paid the rental, and moved into the house. As soon as appellant had moved in, appellees failed and refused to make any of the repairs, except to place and hang the outside door, which was done on March 5, 1898. By reason of appellees' failure to repair the house, appellant was subjected to great exposure, and her health was permanently impaired, all without fault on her part, and to her damage $10,000. All of the appellees demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action; some, on the further ground that the court did not have jurisdiction over them. A general order sustaining all the demurrers was made, and, on appellant's refusal to plead further, final judgment was rendered for appellees.

In this case there was no misrepresentation or concealment of the defects complained of. The defects were of the most obvious nature, and were open equally to the knowledge of both parties. There was no express warranty that the house was habitable. The relation of landlord and tenant raises neither an implied warrant of habitability nor an obligation to repair on the landlord's part. Purcell v. English. 86 Ind. 34; Lucas v. Coulter, 104 Ind. 81, 3 N. E. 622. In the absence of a contract that