Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1851-06-19


equity seeking simply possession of the place wasted
and damages prayer for Injunction for discovery
or account woGld have given jurisdiction. Decree
versed will leave to complanants to amend.
ROsIceH " Simonton. Error. Elkhart Circuit Court.
PERKINS, j. Bill by Roswell against Simonton. Bill
dismissed. Epson & Doan owned 80 of land, |
Slmonton held mortgage on 1t. Epson Doan divid-
ed 1t, Epson sold his share to Roswell. Smonton after
this foreclosed his mortgage making Epson & Doan
only defendants Sold all the land, and obtained judy
ment in eiectment. Roswell prays injunction re-
strainng the enforcement of this Judgment and that
Simonton release to him his land.
Held That the whole tract was liable to be sold that
would be nequitabe subject the share of debtor
to the payment of the whole mortgage debt. That az
ter the sale under the decree of foreclosure he might
have filed his bill and redeemed the whole land by paving
decree and costs That the mortgagoTs should have been
made parties as the plaintiff demanded new account
ing of mortgage debt. Bill properly dismissed. De-
affirmed
Broun ct aIv King ct al Error Ohio Probate Court
BLACKBOARD ]. The Clerk of the Ohio Probate Court,
in January 1880 granted Jerusha Brown Tapley and
Dodd letters administration upon the of Daniels
letters bonds oaths and report of Clerk regular Motion
by Brown confirm appointment. She presented
count sworn to, to the amount OF 1852 Also notice
to the Clerk claiming the appointment the largest
creditor of the estate. King objected, produced no.
tce the clerk that he intended apply for letters and
presented accounts to the amount of $500.
The Administrators produced the sworn account of one
E. G. Brown for Sl49. The declared the Clerks
appointment void, and appointed Kimpton and North
Held First-That the Clerk had the authority grant
the letters the right administer being conrovered
by King, it not appearing that he applied the
Clerk for letters showed him by verified
according the Statute, that be creditor Of the
estate Sccond-It is not discretionary entirely with
the Probate Court ratify aside the Clerks ap-
pointment the Court being bound raty unless
valid objection made against it, In this the lsrg
creditor entitled to letters of Administration. The
Probate Court erred in setting aside the Clerks appoint
ment. Judgment reversed.
King v. The State. Appeal Jefferson Circuit Court.
BLACKBOARD, j. Indictment for retailing. Judgment for
the State Error assigned that the Indictment concludes
contrary the form of the Statute in the singular instead
of against the form of the Statutes, in the plural.
Held, That this is an offence in violation Of the 93d
That the Statute of 1913 Or. S. S43 p. 1851 Stat
ute of lS47, (Acts Of lS47, p 49, Statute of 1S49
Acts of 1S49 p s3) have relation to the description
of the offence in question the quantu of the pun
ishment Those Statutes only regulate the operation
said 93d section. Judgment affirmed, with FIVE per
cent. damages.
Martin " Williams. Error. Decatur Circuit Court
Dismissed by agreement
THURSDAY, May % 1851.
! Rogers V. Smith Error. Dearborn Circuit Court.
SMITH ]. Notice and motion, under the statute, by
Smith. sheriff. against Rogers, purchaser at an exc
cuon SALE to the difference between the
that he bid and failed to pay, and the amount Tor which
the property was subsequently sold 10 another by said
officer. Pleas: First-No such Judgment as described
of execution defendant. Judgment for the amount
claimed, and ten per cent. damages. 1t was proved
that Rogers before the sale and his bid, knew the title
was in dispute, and had conversed about il.
Held That the rule emptor applies strictly
execution sales that the sheriff sells only what interest
the execution defendant has that If one chooses 20 bid
for property in dispute this fact is defence to motion
by sheriff to pay over the money Judgment affirmed.
The Board-Qf ComnlissiOaeTs Of johnson County v
Hicks. Error. JOhnson Circuit Court SMITH, J.
Motion by Hicks for 1sqaofaass to compel the CON-
mis- ma
auditor. Rule to show granted. Commissioners
answered Answer demurrcd TO. Judgment that the
plaintiff entitled TO compensation for the services
perlorned commanding the commissioners TO make the
allowance. question to the construction OF
certain statutes prescribing the duties OF county auditor
and his compens alton.
be tried on the motion for maadamuS. Second-Ihat II
any thing due for said services, the plaintiff had
another remedy than motion for maHdamus, which
was improper in this Judgment reversed.
Prutt ct al v. The SheIbyrHe Lateral Branch Rail
road Co. Error. Shelby Circuit Court. SMITH, j.
Motion in the Circuit Court. Feb. ls49 to grant ap
peal from the award of appraisers, made in Feb 1913,
through the land of plaintiffs. Motion overruled
Held, That under tie Statute providing that such APP
peals shall be taken in thirty days, this ruling
No improper conduct the part Of the appraisers
of the Company, and unavoidable circumstances be-
ing made to appear. Judgment affirmed:
=. Lane V. Leet Error Tippccanoe Circuit Court.
PERKINS Canal boat Trenton, lached by Leet Lane,
Master, summoned appear, boat discharged: Lane
filing bond to release her. At trial Leet and Lane APP
peared judgment against the boat. Lane appealed
Mace Attorney for boat moved to dsmiss-overruled
Offered 90 to trial behalf of boat The Couri
tried the between Lane and Leet Judgment
against Lane
Held, That the appeal from the Judgment of the Jus-
tce vacatcd The cause standing in the Circuit Court
as cause between Lane and Leet de moro. Motion to
dismiss properly overruled and Judgment rendered
{ for plaintiff. Judgment affirmed.
The CentraUiHe and abingdon Turnpike Company v.
Barnett ct al. Appeal Wayne c. C. PERKINS. j
Bill in chancery by said company against Barnett ct al
contractors, stating that they performing their
contract in unworkmanke manner and would fail to
complete il in time. The contract contains clause pro-
vidng that tie Engineer and President may declare II
void upon failure perform it according its stipu
laon. This was done and ratified by the company
The defendants kept of the road, had few
; hands at work insovent, were doing complainant
rreparabe injury Prayer torestrain and enjon defend
from committing trespass and lnermeddns
with said road. Injunction refused
I'll Held Frst-That the contract being forfeited the de
PENDANTS trespassers court of chancery ha
jurisdiction enlon trespass in this case, lrreparab
: injury being likely from the acts of two in
e solvent men and few hands. Second-That in
solyehcy IA tespassef will not give court oil chancer
IS Jurisdiction. Judgment affirmed
$ Burgess v Burgess ct al. Appeal Union Circui
Court. PERKINS, j. Bill for partition by JAS M. Bur
CESS aud Basil Burgess against John L. Burgess, alleg
ing that 10 1910, Martha Burgess the mother of bot
parties and others died. seizedn fee of the land sough
: TO be divided. The show that the father
r. these heirs died. leaving farm; that Jas. NJ and Bas
Is sold in 1923 and 1896 their shares in this farm that
1885 the other heirs sold their shares their mothe
$1,000 of the proceeds of this SALE with which she bough
lie the land in which JAS NJ. and Basil each claim sbar
heirs Of their mother. The below decreed the
,: were entitled 20 such shares.
III Held, That compainantsh have interest in the land
g that the mother held trustee for the heirs who's
'e money expended for it and that they only
Of titled to partition Decree reversed