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Nove Dudley was convicted of keeping och The facts that, after being asked for

(146 N.E.) Appeal from Circuit Court, Grant County ; there is no proof that appellant did keep inJ. Frank Charles, Judge.

toxicating liquor with the intent to dispose of it in

[1] whisky with the intent to unlawfully sell, something stronger to drink by the two cusbarter, exchange, give away, or otherwise | tomers, the appellant went to the rear of the spose of it, and he appeals. Affirmed.

saloon and in a concealed place was found Stricler & Messick and John A. Kersey, all with a quart bottle of corn whisky, and that of Marion, for appellant.

upon the appearance of a police officer one U. S. Lesh, Atty. Gen. (Cronk & Wilde, of of the customers suddenly dropped a glass Indianapolis, of counsel), for the State.

which contained some liquor when the po

lice officer reached to take possession of it, TRAVIS, C. J. This is a prosecution for are sufficient upon which to base the inferviolation of section 4 of the act, known as ence that appellant was guilty of the charge the “Prohibition Law," as amended, for keep-j of keeping whisky with intent to unlawfully ing whisky with the intent to unlawfully dispose of it. Sloan v. State (Ind. Sup.). 141 sell, barter, exchange, give away, and other. N. E. 321; Chaney v. State (Ind. Sup.) 141 N. wise dispose of the same. Acts 1921, p. 736; E. 223; Polonius v. State, 192 Ind. 664, 138 Burns' Supplement 1921, $ 8356d. The cause N. E. 259. of action was instituted in the city court of [2] The inferences to be drawn from the the city of Marion, and a trial bad, which re- evidence were peculiarly within the province sulted in a finding of guilty and judgment, of the trial court and jury for consideration. from which defendant appealed to the Grant | Granting the claim of appellant, that his tescircuit court, where a trial by a jury result- timony, when considered alone, would carry ed in a verdict of guilty, and judgment im- the inference that he was not guilty, this posing a fine of $150 and imprisonment at court cannot determine which inference the Indiana state farm, from which judg- should be drawn and adhered to; there being ment appellant appeals to this court. The er- ground for each. ror assigned is the overruling of the motion The amended section of the statute upon for a new trial, for the reason that the ver- which this action is founded was again dict is contrary to law.

amended in 1923. Acts 1923, p. 70. The defendant, appellant herein, was by [3] More than six months after appellant trade a glass-blower, who, because of a tem- filed his reply briefs, he requests to be perporary closing of the industry, had for a mitted to argue the case orally. While it is short time been employed in a poolroom and within the discretion of the court to grant soft drink saloon located in the basement of a request for oral argument of the case, when an hotel. Between 8 and 9 o'clock in the made after the time allowed for filing briefs, evening of the day the alleged offense was this case does not warrant the exercise of committed, two men entered the saloon and the exception to the rule. Rule 6 of Rules of bought a soft drink, but asked defendant the Supreme Court. at the time, "Is this the strongest you got?” Judgment affirmed. A few minutes later a police officer came in the saloon and found the defendant with the two men in an inclosure in the rear of the saloon, at which time defendant was holding a quart bottle of corn whisky, and one of the men was holding a drinking glass which

VANCE v. WADE. (No. 12026.) contained some liquor which looked like (Appellate Court of Indiana. Division No. 1. whisky. The officer took the bottle of whis

Jan. 28, 1925.) ky from the defendant and reached for the drinking glass, but the man who held it drop- 1. Waters and water courses Om89–Contract ped it to the floor, and it was broken. On

to convey with reference to nonnavigable their way to the police headquarters, after

river as boundary held to entitle grantee to the officer had arrested defendant, the de

riparian rights. fendant told the officer that he was taking a

A contract to convey land described as chance and got caught. This narrative is northeast of a named nonnavigable river enthe evidence of the police officer and appel will make him a riparian owner with all the

titles grantee to require such conveyance as lant. Appellant testified to contradictory rights of such ownership in the waters of such facts from which, if believed by the jury, an river. inference could be drawn that the two men with him in the rear of the saloon were of- 2. Specific performance 10(1)—Specific per.

formance will not be decreed to require pur. fering him a drink of the whisky in the bot

chaser to accept less land than called for by tle.

contract. Appellant's proposition, as stated in his brief, is that the verdict is contrary to law bounded by a named nonnavigable river, which

Performance of contract describing land as because it is not sustained by sufficient evi- made no mention of easements and rights of dence, and that, without the aid of inference, I way between river and balance of tract, will

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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not be decreed, with allowance for deficiency, of said river, on the northerly side thereof, since the court will not make a new contract at the ordinary stage of said water, there is for the parties.

a strip of ground 96 rods in length and of the

average width of 112 rods, which is the Appeal from Circuit Court, Noble County ; property of said railway company, and to Arthur F. Biggs, Judge.

which the plaintiff has no title; that the Suit for specific performance by William plaintiff does not own and cannot convey a J. Wade against Nelson Vance. Judgment merchantable title to a strip of land 1.31 for plaintiff, and defendant appeals. Re-chains in width east and west, and 7.145 versed and remanded, with directions. chains in length north and south off of and Grant & Foote, of Albion, for appellant.

across the west end of that part of the said Bothwell & Vanderford, of Ligonier, and quarter quarter section lying north of the

lands of said railway company; that since Luke H. Wrigley, of Albion, for appellee.

March, 1898, a fence had been maintained

along the northerly line of the lands owned ENLOE, J. The appellee, hereinafter by said railway company and between the called the plaintiff, brought this action lands of said company and plaintiff herein; against the appellant, hereinafter called de- that in September, 1917, the Indiana-Michi. fendant, to enforce specific performance of a gan Electric Company, a corporation, acquir. contract for the sale of certain land. On the ed by deed the right to erect a line of poles 10th day of October, 1922, the plaintiff, as and wires for the carrying of electric power the owner of said land, entered into a con- along the south line of plaintiff's said lands, tract with the defendant, vendee, by which together with the right to erect and maintain he agreed to sell and the defendant agreed all necessary braces, stubs, cross-arms, guys, to buy the lands in question, at and for a and anchors in connection with said lines,

certain specified sum. In said contract the and with the right to ingress and egress for lands so sold were described as:

such purposes, said poles to be erected as "That part of the northeast quarter of sec Dear as possible to the north line of said tion eighteen, in township thirty-five north, railway company's lands, and not more than range eight east, north and east of Elkhart 18 inches from the fence on the north line river."

of said railway company's lands; that actIt was further agreed that payment for ing under said deed said company had erectsaid land should be made, deed executed, ed and placed 16 or 17 poles along said fence, and possession delivered on or before March said poles being 16 or 18 feet in height; that 1, 1923. There were also other stipulations said company placed the necessary stubs, in said contract, but as a consideration of braces, cross-arms, guys, and anchors on them is not necessary to the decision of this said poles and also at once strung its wires case, they are not set out. The issues being thereon, and is now maintaining its said line settled, the cause was tried by the court, of poles and wires. Many other facts were which, a request therefor having been made, found, but, as they are not of controlling found the facts specially and stated conclu- force in the view we take, they are not heresions of law thereon favorable to the plain- in set out. tiff. There was a decree of specific perform The plaintiff herein is standing upon the ance as prayed. The defendant duly except-contract as made; there is no intimation ed to each conclusion of law, and, as we view that the contract reduced to writing and the case, these exceptions are the only mat- signed by the parties does not fully and acters necessary to be considered.

curately state the agreement of the parties The court found that the right of way and as actually made; and the question we have tracks of the Lake Shore & Michigan South- to determine therefore, is: Was the plaintiff, ern Railway Company extend across the said under the facts as found, entitled to a decree tract of land in question, diagonally, from the compelling the defendant to purchase and southeast to the northwest; that on March take the land of which the court found he 3, 1887, said railway company purchased of was the actual owner, and to which he could the then owner a strip of land 150 feet wide, give a merchantable title, notwithstanding lying immediately north of its right of way the fact that when the time of performance and extending entirely across said quarter came he did not own and could not give title quarter section; that thereafter, but prior to portions of the land included in his conto April 26, 1895, said railway company tract? In considering this question, we shall dredged and constructed a ditch on the said first direct our attention to the strip 14 strip of land so purchased and diverted and rods wide on the south, turned the waters of Elkhart river into and It will be noted that, by his contract, the through said ditch, and said ditch has since plaintiff agreed to convey to the defendant said time been the channel of the said river; "that part of the northeast quarter of the that between the north line of the lands of northeast quarter of section eighteen, said railway company-the northerly line *

north and east of Elkhart river," of said 150-foot strip-and the water's edge and the question now arises: Where is the

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(146 N.E.) south boundary line of the property so stip- 1 was able to perform his contract as made ulated to be conveyed ?

and as written. Under such circumstances, In Sphung v. Moore, 120 Ind. 352, 22 N. E. was he entitled to specific performance "with 319, the deed involved described the land con- a variance"? veyed as “that part of the northeast frac- In Foley v. Crow, 37 Md. 51, it was said: tional quarter of section 36,

which

“There is no doubt that the vendee of an eslies south of the Kankakee river." It was tate in an unexecuted contract, is entitled to contended by one of the parties that the have that for which he contracts, before he grantee took title thereunder only to the can be compelled to part with the considerameander line, and in passing upon the question he agreed to pay; and that the ability of tion the court said:

the vendor to convey should exist when his

duty by the contract arises to convey, or at "Counsel claim that the meandered line con- the time of a decree for a conveyance, where stituted the boundary line of the northeast time is not of the essence of the contract.” fractional quarter of section 36, and that line being a distance from the bed of the river the

In Reed v. Noe, 9 Yerg. (Tenn.) 282, it was plaintiff is not a riparian owner.

In this coun- said: sel are in error. The meandered line does not

“The bill admits that at the time it was constitute the boundary line, but the Kankakee river constituted the boundary, and the plaintiff filed, the complainant did not have a legal title was a riparian owner.”

to the entire tract agreed to be conveyed.

This being true, he was not in a condition to In Tolleston Club v. State, 141 Ind. 197, perform the contract on his part, and as, he 38 N. E. 214, it was said:

could not ask the defendant to take an imper

fect title, he had no ground of equity upon "The

* principal contention of coun- which to come here for the enforcement of his sel for appellee. in this petition is that the contract.”. meanders of the Calumet river are boundaries of the marginal lots in the several sections as In Freetly v. Barnhart, 51 Pa. 279, Freetly sold by the state. This cannot be admitted. It had agreed to convey to Barnbart certain is contrary to all the authorities. Meanders are leases; his title to some of the leases had not boundary lines unless expressly made so in failed, but he brought suit for specific perthe instruments of conveyance." (Our italics.)

formance. The court said: This court, in the case of State v. Tues- "A defect in any one of these leases would deburg Land Co., 61 Ind. App. 555, 109 N. E. feat the right to specific performance as against 530, in speaking of riparian ownership said: the defendant. He was entitled to all or none."

"Under this doctrine a grant or conveyance In Page v. Greeley, 75 Ill. 400, the court of land bounded by a nonnavigable stream car

said: ries with it the bed of the stream to its center, unless a contrary intention is manifest "The motives and fancies of mankind are so from the grant or conveyance itself”—and various, that the law, which recognizes the many authorities are cited as sustaining the right of parties to make just such contracts as rule as declared.

they choose, not prohibited, or against public

policy, will not call upon a man who has con[I] Under the averments of the complaint tracted to purchase one thing, to explain why in this case, the contract involved is to be he refuses to accept another. “read from its four corners,” and when we contract, as made by the parties, was definite, read that contract we find that it says noth- equal and fair in its terms. The moment the ing about my “meandered line," nothing proposition is admitted, that the court may about any "railroad lands," nothing about substitute any other mode of performance, and

a title of a different character, transactions of any "easement" for any electric power this character, no matter how definite and line, as in any way entering into the terms fair in their terms as made, lose both the qualthereof, but it is a plain, simple undertaking of definiteness and fairness. The purchasto convey all the land north and east of the er could have no idea, when he contracted for a Elkhart river in said quarter quarter section, particular kind of title, that a court of equity and under the authorities, said river being would have the authority to compel him to take nonnavigable, a conveyance of the kind bar- another and inferior kind of title. gained for would make the defendant a ri- It needs no argument to prove that the sub

stitution by the court of one thing for anparian owner with all the rights of such own- other, is subversive of the doctrine of the ership in and to the waters of Elkhart river. court as to definiteness and certainty in con

[2] Under the findings of the court, the tracts of which specific execution is sought. plaintiff, when the time for performance * * If, therefore, the court could disregard came, and also at the time of the trial, did the terms of the covenant, and compel him to not have and could not convey a merchan- take

less valuable title, it would not be fair table title, not only to the aforementioned and just towards such purchaser. So that it

would be against the fundamental rules govstrip along the Elkhart river, but also to a strip of land off of and across the entire erning courts of equity, to decree the specific

execution of the contract in this case in the west side of that part of said quarter quarter way proposed. It would be to enforce specific section lying north of the Elkhart river. In- performance by the purchaser, with relief deed, the plaintiff makes no claim that he therefrom on the part of the vendors. Such an

146 N.E.-26

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enforcement of the contract is not of the one the premises, and enjoyed the advantages and made, but of another, with terms framed in benefits to be derived therefrom, without com. the discretion of the court, and therefore not plaint, and made no attempt to rescind or efcertain and definite; with the substitution of fort to be relieved from the situation until something the purchaser did not agree to take, performance on his part became necessary unand therefore, not equal and fair."

der the contract."

In the instant case the defendant agreed In the Keepers Case, supra, the purchaser to pay for and take, and plaintiff agreed to had gone into possession of the land, used sell and convey to him, not the lands which and sold property received under the con. the plaintiff actually owned, only, as found tract after he knew of the alleged defects, by the court, but such lands plus the said and the court held that by his conduct he strip on the west side thereof, and plus the bad estopped himself to ask that the constrip on the southerly side thereof, and all tract be rescinded. There is nothing in this without any burden of any easement there- case which brings it within the law as deon; he agreed to purchase a farm which clared in those cases, and they are therewould give him, as the owner thereof, ripa- fore not controlling. rian rights in and to the waters of the Elk

The appellee also contends that this case hart river—a farm of which he would be falls within the rule as laid down in Colethe owner in fee, a farm not burdened with man v. Meade, 13 Bush (76 Ky.) 358, Farris any right of easement held by some other v. Hughes, 89 Va. 930, 17 S. E. 518, and Munperson or corporation, with right of ingress dy v. Irwin, 20 N. M. 43, 145 P. 1080, Ann. and egress across his lands, to be exercised Cas. 1918D, 713, in each of which cases there at any time the holder thereof might desire. was a deficiency in the quantity of land purThe findings conclusively show that the chased. The court found the deficiency to be plaintiff was, at no time, in a situation to slight, that it did not prejudice the use of convey to defendant that which defendant the remainder of the land, heard evidence had agreed to buy—that which plaintiff had and found as to the value of the deficiency, agreed to convey.

and decreed specific performance, with an But it is urged by plaintiff that the public allowance to the vendee on account of such records were open to the defendant, and that deficiency. The plaintiff in this case seems he knew, or by consulting such records could to have proceeded in reliance upon the said have, the extent of plaintiff's rights, and of cases last cited-and there are many other the rights of the other parties, as the lands cases of like character-as being authority in question were affected by such rights. If to sustain a decree of specific performance we grant the plaintiff's contention in this in his favor. The trial court seems also matter, still it is not decisive. A person to have been of that view. This brings us may, as between himself and another-a purto a consideration of the special findings chaser--make a valid agreement to sell and herein, as to whether they are sufficient to convey property which, at the time of the authorize a decree in plaintiff's favor, if we making of such contract, he does not then should concede that the plaintiff's position is own, and the only thing necessary for him sound. is that he shall be the owner of such proper The trial court found that the strip on the ty which he has agreed to convey when the west side of said lands—the deficiency heretime shall come for him to make his con- tofore noted—was not necessary to the use veyance as agreed upon. Foley v. Crow, su- and enjoyment of the remaining portion of pra; Nichol v. Nichol, 63 Tenn. (4 Baxt.) 145 ; said land, but the findings are silent as to Shaw v. Vincent, 64 N. C. 690.

the reasonable value of said strip. The Where the contract of sale has been partly court also found that the strip of ground executed, as where the purchaser has gone lying north of the channel of Elkhart river into possession of the property, and remains owned by the railroad company, as hereinin possession, using the property as his own before set out, was “not necessary to the after he obtains knowledge that the vendor use and enjoyment of plaintiff's said lands," cannot comply with his contract in its en- but the court did not find the value of said tirety, a different rule prevails, and in such strip of land. The court also found that the cases courts of equity frame their decrees Indiana-Michigan Electric Company, in 1917, according to the equities of the parties. The had paid to the then owner of said farm the cases of McCourt v. Johns, 33 Or. 561, 53 P. sum of $15 as the consideration for the execu601, and Keepers v. Yocum, 84 Kan. 554, 114 tion of the deed giving it the right to erect P. 1063, Ann. Cas. 1912A, 748, cited and re- and maintain poles, etc., upon and across said lied upon by appellee, are illustrative. In lands and the right of ingress and egress the McCourt Case the court said:

across said lands for the purpose of repair. "There is, however, another feature of the ing said poies, etc.; but the court did not controversy which militates against the plain- find how much the fair cash market value of tiff's position. He has long been aware of the said lands had been depreciated, if any, by defective title to these parcels, but with this reason of the placing of said poles on said knowledge he has remained in full possession of lands, and the existence of said easement as

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(146 N.E.) a burden thereon. Also, the defendant had , 4. Evidence. On 413–Admission of testimony contracted to purchase land which would that certain entry in judgment docket not give him rights as a riparian owner, in and

there when examined by witnesses held not to the waters of Elkhart river; but the

error. special findings are to the effect that the Admission of witness' testimony that certain plaintiff could not, at any time, convey to entry made by clerk in index to judgment dockdefendant any such right. Also, there is no

et was not there when they examined it, held finding that this right of riparian ownership, public record, but only to show when particu

not error, it not being an effort to impeach a such as defendant agreed to purchase, was of lar entry was made. no value to this farm. It therefore necessarily follows that the plaintiff herein, even 5. Execution Om 244—Mortgage lienors having under his own theory of the law, if we were

priority over judgment lienors held not af

fected by sheriff's sale pursuant to execution to concede that such theory were applicable,

on such judgments. which we do not, upon the facts found was

Where interest of mortgagor in lands was not entitled to a decree of specific perform- insufficient to satisfy all mortgage liens on it, ance of the contract in question, as against and whole of land together with interest of the defendant.

mortgagor's wife would have to be sold to satOther questions presented by counsel for isfy such liens, and, pursuant to execution isappellant need not be considered. As the sued on certain judgments, such land was sold court erred in its conclusions of law upon

as a whole and not in parcels, neither mortgathe facts found, and as there is no dispute gor nor his wife objecting, held that such sale herein as to the essential controlling facts, liens were prior to rights of judgment lienors,

did not affect rights of mortgage lienors whose this cause is reversed, with directions to the and hence vacation of such sale on complaint trial court to state as a conclusion of law, of mortgage lienors was erroneous. upon the facts found, that the plaintiff is pot entitled to the relief by him demanded, 6. Dower Om 36–Wife entitled to one-fifth if and that the defendant is entitled to recover

land $20,000, and one-fourth if less than $20,

000 against all creditors except mortgagees his costs, and to render judgment accord

and judgment creditors. ingly.

Where land owned by husband is worth in Judgment reversed.

excess of $20,000 upon sale of such land under execution issued on certain judgments, under Burns' Ann. St. 1914, $ 3014, wife is entitled to only one-fifth, of net proceeds arising from such sale, but if land should sell for $20,000 or less, she would be entitled to only

one-fourth as against all creditors except holdSULLIVAN STATE BANK et al. v. FIRST ers of mortgages in the execution of which NAT, BANK OF OAKLAND CITY

she had joined, and those holding judgments et al. (No. 11914.),

against her.
(Appellate Court of Indiana, Division No. 2.
Jan. 29, 1925.)

Appeal from Circuit Court, Gibson County;

Marshall R. Tweedy, Judge.
1. Judgment em 524-Judgment is purely stat.
utory,

Suit by the First National Bank of OakA judgment is purely statutory, and exist- land City and others against the Sullivan ence of judgment and rights of judgment State Bank and others. From a judgment creditors must be measured by statute creat- determining priority of liens among the paring it.

ties, defendants appeal. Reversed, with di

rections.
2. Judgment Om752, 768(1) Court cannot
create judgment lien.

T. Morton McDonald, of Princeton, and
A court cannot create a judgment lien, Lindley & Bedwell, of Sullivan, for appel-
that being a prerogative of the Legislature, lants.
and the right of judgment lienors to priority J. M. Vandeveer, of Oakland City, S. L.
depends on section of statute providing for Vandeveer, Sanford Trippett, and Baltzell &
recording of judgments in county other than Baltzell, all of Princeton, and A. L. Gray, of
one where rendered.

Huntingburg, for appellees. 3. Judgment ma 769-Judgment does not become lien where not repeated in judgment McMAHAN, J. Complaint by the First Nadocket under name of each defendant, tional Bank of Oakland City, on a note signed

Where a judgment was obtained against by appellee Claude Thompson and for forefive defendants, but was entered in judgment closure of a mortgage on certain real estate dockets only once and was not repeated under in Gibson county owned by said ThompDame of each defendant in alphabetical order, as required by Burns' Ann. St. 1914, § 609, son. Later a supplemental complaint was filheld that judgment not indexed under judg- ed alleging that since the commencement of ment debtor's name did not become a lien on the action the clerk of the Greene circuit his real estate located in such county.

court had issued to the sheriff of Gibson

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