was immaterial. The proof of said allegation was unnecessary. Taylor v. State, 130 Ind. 66, 29 N. E. 415. Finding no available error in the record, the judgment is affirmed.

(25 Ind. App. 244)

STATE ex rel. HANNA et al. v. HITCHENS et al. (Appellate Court of Indiana. June 29, 1900.) APPEAL-RECORD-PRESENTATION OF QUESTION TO TRIAL COURT-CONSTABLE-COMPENSATION-FEES-NECESSARY EXPENSES.

1. The appellate court will not consider an alleged error of the trial court in overruling a motion for a new trial, where the record discloses no ruling or exception thereto on which a motion for a new trial could be predicated.

2. A constable is entitled to retain from the proceeds of an execution sale of goods levied on under an execution issued to him, as a part of the expense of the levy, in addition to his fees, reasonable sums necessarily expended by him, in good faith, in storing the goods, in procuring a watchman to protect them, in purchasing a lock for the room in which they were stored, and for the lighting of the room evenings while he was conducting the sales; but he is not entitled to reimbursement for sums expended in securing the services of an auctioneer and clerk to make the sales, since the law imposes on the constable such duty, and allows him compensation therefor.

3. In an action by a judgment debtor to compel a constable to turn over to him a sum of money alleged to have been unlawfully retained by the constable from the proceeds of an execution sale, the constable is entitled to credit against the sum received from the sales sums which it clearly appears from the evidence he is entitled to, though he did not itemize the services for which he charged in the return of the execution under which the sale was had.

Appeal from circuit court, Cass county; D. H. Chase, Judge.

Application by the state, on relation of Charles M. Hanna and others, to compel George W. Hitchens and others to pay over money collected by the respondent Hitchens, as constable, under certain executions. There was a judgment in favor of respondents, and from an order denying a motion for a new trial relators appeal. Reversed.

Frank Swigart and Nelson & Myers, for appellants. McConnell & McConnell, for appellees.

COMSTOCK, J. This action was prosecuted against the appellees, George W. Hitchens, constable, and John Mitchell and Andrew Ray, his bondsmen, to recover money collected by Hitchens, as principal, and retained from appellants. Nine creditors of appellants (relators) obtained judgment before a justice of the peace against them, and caused executions to issue to appellee Hitchens, as constable. He levied the executions upon the store of the relators, in the city of Logansport, Ind., and sold a portion of the goods to satisfy the same. The relators claim that the total amount due on the judgments, interest, fees, costs, and accrued costs, at the time they were paid, was $821.72; that the constable charged and retained the

sum of $1,033.77, being $203.14 more than he was authorized by the statute of Indiana to charge and retain. The cause was put at issue, trial by, the court, and judgment rendered for costs in favor of appellees. The action of the court in overruling appellants' motion for a new trial is the only error assigned. There are four reasons assigned in the motion for a new trial. The first is, "The finding of the court is not sustained by sufficient evidence;" the second, "The finding of the court is contrary to law." The record discloses no ruling, nor exception thereto, upon which to base the third and fourth reasons for a new trial. It remains only, therefore, to consider the first and second reasons for a new trial.

The following is the return made to the writ by appellee Hitchens: "I received this writ on the 1st day of June, at 1:30, 1897, and on the 23d day of September, by virtue thereof, and also of eight other writs against the same defendants, in my hands, from the dockets of David Laing and Geo. W. Fender and J. H. Walters, justices of the peace of Cass county, Indiana, I levied all of said writs upon a certain stock of notions, picture frames, and toys, etc., belonging to the defendants, situated in a storeroom at 421 Market street, Logansport, Indiana; and I proceeded to have the stock appraised according to law, which was done by Frank M. Polk and Jas. A. Day, and thereafter, on, to wit, the 4th day of October, I advertised the said goods for sale as required by law; and when the time of the sale arrived, the said stock having come into litigation by the claimants against the property, to wit, a suit by William Douglass in the Cass circuit court, I suspended said sale until the issue of that case was determined, and after the same had been determined I again advertised said stock for sale according to law, by posting three written and printed notices in the city of Logansport, at public places therein, and one on the door of the building in which said goods were contained; and at the time appointed for the sale I proceeded to sell said stock of goods, under said writs, at public auction and outcry, beginning on the 6th day of November, and continuing the same from day to day, as required by law, until the 2d day of December, when, having realized the sum of $1,042.10 upon the sale under said writs, I suspended the sale, leaving a portion of the goods levied upon still unsold, and having sold sufficient of the stock to satisfy said writs against said defendants in my hands, and out of the proceeds thereof I paid the judgment of $118.20 in favor of Gustave Burgman, which, with interest, costs, and accruing costs, amounts to $167.15, and also another judgment in favor of Gustave Burgmau, of $117.35, which, with interest, costs, and accruing costs, amounts to $166.34, and also another judgment in favor of Gustave Burgman, of $117.91, which, with interest, costs, and accruing costs, amounts to $166.60,

and also another judgment in favor of Gustave Burgman, of $119, which, with interest, costs, and accruing costs, amounts to $167.21, and also another judgment, in favor of the National Jewelry Company, of $35.46, which, with interest, costs, and accruing costs, amounts to $59.24, and also another judgment, in favor of James E. Patton & Co., of $22.66, which, with interest, costs, and accruing costs, amounts to $46.08, and also another judgment, in favor of Daniel P. Rhoads, of $13.33, which, with interest, costs, and accruing costs, amounts to $37.35, and also another judgment, in favor of Wilson, Humphrey & Co., of $92.29, which, with interest, costs, and accruing costs, amounts to $114.88, and also another judgment, in favor of the Toledo Manufacturing Company, for $85.88, which, with interest, costs, and accruing costs, amounts to $108.94, making in all the sum of $1,033.79; and I have paid the rent and storage room for said goods so levied upon for the period of seventy days, amounting to $70, and also the appraisers; and the stock of goods being situated in an eligible room, in a good locality, to realize the largest possible price, and it being necessary to the economical and safe management of the sale to employ an auctioneer, and it being necessary for the purpose to employ a clerk, I have paid the services of both, as part of the costs herein; and I herewith return this writ satisfied in full, and I further certify that the surplus of goods levied upon under this writ, and the proceeds thereon, are held at this time under other writs against the defendant Charles M. Hanna. Geo. W. Hitchens. Constable."

It appears from the record that appellee Hitchens retained from the proceeds of the sale of which he made return, in addition to the fees provided by statute, the amount expended by him for rent of storeroom; the amounts paid the auctioneer, clerk, and watchman; the amount paid for lock for door of the store; and the cost of lighting the room by night. The proposition that an officer can retain for his services only such fees as are allowed by law requires the citation of no authorities. The principal question presented by this appeal is whether he is entitled to the amounts thus retained, or is limited to the fees fixed by statute. The act providing for fees for constables went into force March 8, 1897. Acts 1897, pp. 217, 218. This fee bill is intended to provide compensation for personal services which the law imposes upon him. While the decisions are not in harmony, from the weight of authorities we think the proposition may be deduced that a constable is entitled to be reimbursed for necessary and reasonable expenditures made by him in good faith in taking care of and preserving property seized under valid process. It was said in Cramer v. Oppenstein, 27 Pac. 713, by the supreme court of Colorado, that "the ordinary fees allowed by statute evidently were not intend

ed to cover all extraordinary disbursements which the sheriff may be compelled to make in the faithful discharge of such duties." The constable's return, which we have set out, shows the date of the levy, the expenditures, the appraisement of the stock, the advertisement of the sale, the suspension of the sale because of litigation involving the title to the property, the further advertisement after the determination of said litigation, and the sale of said property from day to day at auction until the sum of $1,042.10 was realized therefrom; that he applied, of the proceeds of said sale, the sum of $1,033.79 to the payment of the several executions in his hands; that between the time of the levy of the executions and the conclusion of the sale he paid rent for the room in which the goods were stored (the room in which the judgment defendants had done business) and sold, at the rate of $1 per day, for 70 days. The return further shows the employment of an auctioneer and a clerk, but does not state the amounts paid the appraisers, the auctioneer, the clerk, and the watchman, nor the cost of advertisement. As to these items the return is defective. These items, however, for which the constable retained pay from the money realized, were testified to by the constable, and were not disputed. It appears from the record that it became necessary to procure a lock for the door of the storeroom. He testified that he employed and paid a watchman to guard the goods for a time, and that he paid for lighting the storeroom while the sale of the goods was in progress at night. In C. B. Rogers & Co. v. Simmons, 155 Mass., at page 261, 29 N. E., at page 581, it is said: "There are strong reasons against allowing an officer to use his discretion in making charges against property beyond those expressly allowed by the statute, and such expenses as are necessarily incurred in the performance of his legal duties. In this state, when the property is of such a kind that it is necessary for the officer to procure and pay for storage for it, he is allowed such sums as are properly so paid;

but

for all the other personal services, whether ordinary or extraordinary, the fees expressly provided by the statute are intended to be the only compensation." Neither the necessity for the storage of the goods, the procuring of the lock, nor the reasonableness of the amounts paid for the use of the storeroom, or for the lock or the watchman, is questioned. The sale of the property was a personal service, the duty of performing which the law cast upon the constable, and for which the fee bill allowed him a commission. The law would not authorize him to charge the parties for the additional cost either of an auctioneer or a clerk. The duty of selling the goods devolved upon the of ficer. An office is accepted with its burdens. In some cases in which its incumbent is called upon to act, the compensation made

by statute seems small. In others it is ample.

Counsel for appellants argue that inasmuch as the constable did not itemize, in the return of the writ, the services for which he charged, he is entitled to no fees. This claim of counsel might be allowed, did not the various items for which he retained the money in question fully appear from the evidence before us. The valid may readily be separated from the invalid. The law cast upon the officer the obligation of protecting and taking care of the goods. The storage and the securing of the lock and the watchman were necessary to the discharge of this obligation for which the fee bill made no provision. See Smith v. Huddleston, 103 Ala. 227, 15 South. 521. The finding of the court allowed appellee to retain the amount paid to him for auctioneer and clerk hire. As to these items, the judgment was contrary to law. Many cases are cited by counsel representing the adversary parties. When applicable to the facts shown by the record before us, they are not in conflict with the opinion herein expressed. Constructive fees are not allowed in Indiana, but reasonable and necessary allowances for the care of property held under a valid execution cannot properly be considered fees. They are expenditures for the protection of the property, payable out of the fund realized from its sale. The watchman was employed and paid to guard the property pending litigation. The judgment is reversed, and the trial court is directed to sustain appellants' motion for a new trial.

(25 Ind. App. 252)

COX v. ROBERTS. (Appellate Court of Indiana. June 29, 1900.) STATUTES OF FRAUDS-CERTIFICATE OF SALE

-AGREEMENT TO TRANSFER-DEMURRER.

A certificate of sale of real estate on foreclosure represents an interest in land, and a contract to transfer it is within the statute of frauds, and must be in writing.

Wiley, J., dissenting.

Appeal from circuit court, Whitley county; Joseph W. Adair, Judge.

Action by Louisa Roberts against Mary E. Cox. From an order overruling demurrer to the complaint, defendant appeals. Reversed.

A. A. Adams, for appellant. Marshall, McNagny & Clugston, for appellee.

HENLEY, J. It is assigned as error that the lower court erred in overruling the demurrer to the complaint. The complaint is in one paragraph, and is as follows: "Plaintiff complains of defendant, and says that one Margaret Roberts, in her lifetime, was the owner of the following described real estate, in Whitley county, Ind., to wit, the southwest quarter of the northeast quarter of section eighteen, in township thirty-one north, range nine east; that said real estate was incumbered by a mortgage to Christian D. Waidlich, executed by the said Margaret Roberts;

that said Margaret Roberts died testate, at Whitley county, Ind., and devised said real estate in fee simple to the children of this plaintiff and her husband, Jonathan Roberts, with a life estate to said Jonathan Roberts, and conditioned, further, for the payment of certain legacies to the defendant and others in said will named; that Christian D. Waidlich assigned said mortgage to Charles Cox, who is the son of the defendant; that said Charles Cox foreclosed said mortgage in the Whitley circuit court, and said premises were duly sold by the sheriff of Whitley county, Ind., on the 22d day of January, 1898, to the defendant, Mary E. Cox; that subsequently said Mary E. Cox agreed with this plaintiff that she would assign said certificate of purchase to the plaintiff for the sum of $750, and that she would make said assignment at the Farmers' Bank, at Columbia City, Ind., whenever this plaintiff procured and was ready to pay said sum of $750; that it was afterwards agreed that Jonathan Roberts, husband of this plaintiff, could enter upon said premises in the fall of 1898, and sow the same to wheat; that in accordance with said agreement said Jonathan Roberts and sow on said premises thirty acres of wheat; that prior to the 31st day of January, 1899, this plaintiff procured $750, and was ready and willing to pay the same at the Farmers' Bank, at Columbia City, Ind., to the defendant, Mary E. Cox, for an assignment of said certificate of purchase, and notified said Mary E. Cox to that effect; that said Mary E. Cox, defendant, failed, neglected, and refused to go to said bank and receive said money and assign said certificate of purchase, but, disregarding her said contract, has presented said certificate of purchase to the sheriff of Whitley county, and has obtained from him a deed of conveyance for said real estate, and is now claiming to be the owner thereof, and is giving it out in public speech that this plaintiff and her husband have no right to, and shall not, harvest the wheat crop now growing on said premises, and that they have no right to, nor has the plaintiff any right to or interest in, said real estate; that said real estate is fairly and reasonably worth the sum of $1,500; that this plaintiff obtained the money with which to purchase said certificate at great cost, damage, and expense to herself; that, by reason of the failure of said defendant to assign said certificate of purchase to the plaintiff, she has lost said real estate, and the surplus remaining therein over and above said $750, and she has been damaged by the failure, neglect, and refusal of said Mary E. Cox to comply with the terms of her agreement in the sum of $1,000, for which she demands judgment, and for all other proper relief."

It is argued by counsel for appellant that the agreement declared upon is within the statute of frauds, and is not enforceable. On demurrer, it will be presumed, the contrary not being alleged, that the agreement counted.

upon was verbal, and, if the agreement is such as is required by the statute of frauds to be in writing, the objection may be taken by the demurrer for want of sufficient facts. If the contract declared upon be one for the sale of lands, or interest therein, then it falls within subdivision 4, § 6629, Burns' Rev. St. 1894, and, to be enforceable, must be in writing. The owner or holder of a sheriff's certificate of sale of real estate is the owner of an interest in the real estate described in the certificate, and it is an interest which the holder can transfer and protect. Gable

v. Seiben, 137 Ind. 155, 36 N. E. 844. In the case last named, Howard, J., speaking for the court, said: "Section 6466, Rev. St. 1881, provides that the owner or occupant of any land sold for taxes, or any other person having interest therein, may redeem the same at any time within the two years next ensuing. That the owner of the sheriff's certificate of sale of real estate has an interest in said real estate seems too plain for argument. The fact that such interest may not ripen into ownership, by reason of redemption from sale or other cause, does not show that the interest is not a real one."

The contract sued upon in the case at bar was a contract by which appellant was to part with whatever interest she had in the land, and it is immaterial whether that interest was a legal or equitable interest. Thus, it is said in 8 Am. & Eng. Enc. Law, p. 695: "Clearly, every contract for the sale of the legal title to real estate is within the statute; but it applies to contracts for the sale of the equitable title as well; thus, for the sale of an equity of redemption, whether from a mortgage, a trust deed, a judicial sale, a tax sale, an execution sale, or however such an equity of redemption may arise."

That the fourth section of the statute of frauds extends to and embraces equitable as well as legal interests in land is well settled. Browne, St. Fr. § 229; 2 Reed, St. Fr. § 723. In the case of Hughes v. Moore, 7 Cranch, 176, 3 L. Ed. 307, in the opinion by Marshall, C. J., it was held that an agreement between A. and B., by which B. was to pay A. a certain amount of money to compensate A. for damages done him on account of B. having procured a patent for land in his own name, when it should have been in the name of A., is a contract within the statute of frauds, and must be in writing. In the case of Scott v. McFarland, 13 Mass. 309, it is held that "the right in equity of redeeming real estate mortgaged is such an interest in land as cannot by our statute of frauds be passed by parol." That the owner of a sheriff's certificate of sale is a proper redemptioner is settled law in this state. Gable v. Seiben, 137 Ind. 155, 36 N. E. 844. In Junkins v. Lovelace, 72 Ala. 303, it was held that an agreement to redeem from a sale of mortgaged lands under execution, and to allow the mortgagor the benefit of said redemption in

case the mortgagor paid the redemptioner the amount expended by him, with interest, is within the statute of frauds, and not enforceable unless in writing. In the case of Clark v. Condit, 18 N. J. Eq. 358, it is held that an equity of redemption is such a right or estate in lands as cannot be released or conveyed except in writing. To the same effect was Van Keuren v. McLaughlin, 19 N. J. Eq. 187. An agreement which amounts substantially to a transfer of any interest in lands has always been held to be within the statute. Agnew, St. Fr. p. 151. In the case of Smith v. Burnham, 3 Sumn. 435, Fed. Cas. No. 13,019, Justice Storey says: "A contract for the conveyance of lands is a contract respecting an interest in lands. It creates an equitable estate in the vendee in the very land, and makes the vendor a trustee for him. A contract for the sale of the equitable estate in lands, whether it be under a contract for the conveyance by a third person or otherwise, is clearly a sale of the interest in the lands, within the statute of frauds. A partnership to buy contracts for the sale of lands is a partnership for the purchase of an equitable interest in those lands." In Whiting v. Butler, 29 Mich. 122, it is held, in an opinion by Justice Cooley, that the equitable interest in lands acquired by the purchaser at an execution sale was an interest capable of assignment and sale, but the contract for such sale or assignment was within the statute of frauds, and, to be enforceable, must be in writing. See, also, Grover v. Buck, 34 Mich. 519. In the case of Daniels v. Bailey, 43 Wis. 566, it is held that the sale of an interest in a certificate of sale of standing timber is a sale of an interest in land, and, if by parol, is void by the statute of frauds. The contract for the transfer of the certificate of sale declared upon in appellee's complaint was voidable merely. It was not void. The statute simply prohibits the bringing of an action to enforce it. The parties may fully execute their contract if they desire, but they cannot be compelled to do it by any action in law or equity. Hadden v. Johnson, 7 Ind. 394. It was early held in this state that the closer the provisions of the statute of frauds are adhered to, consistent with control of judicial authority, the better. Ball v. Cox, 7 Ind. 453. The certificate of sale of real estate representing, as it does, an interest in the real estate, it necessarily follows that a contract to sell or transfer such certificate is a contract to sell or transfer an interest in the land. Such a contract is within the statute of frauds, and, to be enforceable, must be in writing. It follows that the court erred in overruling the demurrer to the complaint. The judgment is reversed, and the cause is remanded, with instructions to the lower court to sustain the demurrer to the complaint.

WILEY, J., dissents.

(25 Ind. App. 250)

CITY OF HUNTINGTON v. BOYD. (Appellate Court of Indiana. June 29, 1900.) CITIES-POLICE COMMISSIONERS-POLICE OFFICERS WAGES COMPLAINT- ANSWER ARGUMENTATIVE DENIAL APPEAL BILL OF EXCEPTIONS.

1. Where the complaint in an action against a city avers that the board of police commissioners was "organized and acting as such under the laws providing for such board," an objection that the complaint does not aver that the board was a legally constituted one is not well taken.

2. In an action against defendant city for wages as a patrolman, the defense that there was no such office to fill at the time plaintiff claims his appointment cannot be raised by demurrer, but must be raised by answer.

3. Where plaintiff seeks to recover wages as patrolman, an answer alleging that plaintiff was never appointed an officer of defendant city, and that defendant never agreed to pay him for any services, and so notified him, amounts to an argumentative denial, and, when pleaded with a general denial, is bad on demurrer.

4. Where judgment was rendered against defendant on October 17th, and 60 days given to present a bill of exceptions, such bill, presented to the judge and signed and filed on December 17th, is not within the time given; and hence, the evidence not being in the record, an alleged error in overruling defendant's motion for a new trial is not before the court.

Appeal from circuit court, Huntington county; C. W. Watkins, Judge.

Action by Jefferson M. Boyd against the city of Huntington for wages as patrolman. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

France & Dungan, for appellant. Spencer & Branyan, for appellee.

ROBINSON, C. J. Appellee's complaint avers that on July 1, 1897, he was appointed to the office of patrolman for the appellant by the board of metropolitan police commissioners of the appellant, "then and there duly appointed, organized, and acting as such under and in pursuance of the laws providing for such board," at a salary of $550 per year; that he entered upon such employment, and discharged the duties thereof for six months and six days, when, with the consent of his superiors, he retired from the service; that the services were accepted by appellant as rendered, and were of the value of the salary fixed; and that such salary, to the amount of $285, is due and unpaid.

The first and second assignments of error question the sufficiency of the complaint. It is argued that there is no averment that the board was a legally constituted one, but that it is only averred that the board was acting as such. But the averment is that appellee became such officer through appointment by a board then and there duly appointed, organized, and acting as such pursuant to the laws provided for such board. The demurrer admits that the board appointing appellee was duly appointed and organized. Much of appellant's argument upon the complaint is directed to a question

not presented by a demurrer for want of facts, but could be raised only by answer. If it be the fact that there was no such office to fill, and that therefore appellee was not such officer, this could be raised by answer, and not by demurrer, or an assignment of error that the complaint does not state sufficient facts. The demurrer to the complaint was properly overruled. See Reubelt v. School Town of Noblesville, 106 Ind. 478, 7 N. E. 206; School Town of Milford v. Powner, 126 Ind. 528, 26 N. E. 484; Acts 1897, p. 90.

Appellant answered in four paragraphs. The first was the general denial. A demurrer was sustained to the second paragraph, and this ruling is assigned as error. But this paragraph does not confess and avoid the complaint. Its allegations are to the effect that appellee was never appointed an officer of appellant; that he was at no time such officer; that appellant never agreed to pay him for any services, and notified him when he began the services that appellant would not be responsible for his pay; and that he never performed such services. This paragraph is no more than a special or argumentative denial of the complaint, and, having been pleaded with the general denial, under which the facts pleaded were provable, there was no reversible error in Henderson sustaining the demurrer to it.

v. Henderson, 110 Ind. 316, 11 N. E. 432; Nixon v. Beard, 111 Ind. 137, 12 N. E. 131; Mason v. Mason, 102 Ind. 38, 26 N. E. 124.

The remaining error assigned is overruling appellant's motion for a new trial. Whether the question argued under this assignment can be considered depends upon whether the evidence is properly in the record. Counsel for appellee insist that it is not. The motion for a new trial was overruled and judgment rendered October 17th, and 60 days' time given to present a bill of exceptions. The bill containing the evidence was presented to the judge, signed, and filed December 17th. As this was not within the time given, the evidence is not in the record. Rigler v. Rigler, 120 Ind. 431, 22 N. E. 776; McCoy v. State, 121 Ind. 160, 22 N. E. 986; City of Plymouth v. Fields, 125 Ind. 323, 25 N. E. 346. Judgment affirmed.

1. Burns' Rev. St. 1894, § 7268, providing that, whenever any person shall intrust to any mechanic or tradesman materials to construct, alter. or repair any article of value, such mechanic or tradesman, after six months from the time the charges thereon became due, may sell the same for the payment of such charges, of the article be completed, and not taken away by the owner, and the fair and reasonable charges thereon paid, does not give a lien to one who saws lumber for another on the