The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-02

sale, the plaintiff must show judgment, exc
! cptiOn, sale and deed. ~ Ind, 5l1J mort
| gageOr in possession cannot, after decree of
! foreclosure barring all his rights and equities,
| set up title, in third person or in himself, to
defeat the title of purchaser at sheriH's sale,
| as Ind. 19l Where MAJ has different evil
dences Of title, it is sufficient if he possess one
! good and paramount title. Judgment affirmed
DEMURBER-PRACTICE.
10,5s5. Frank Mnlkan VS.. Orange H. Tenn
pie. Tippecanoe G. c.
| HOwk, J.-Appellee's complaint contained two
| paragraphs, and appellant demurred to the COM
| plant entirety, for the want of sufficient
| facts. After the appeal to this court was taken,
the parties filed an agreement in the cause waiv-
| ing any error as to the Overrullng OF the demur-
! rer to the first paragraph OF the complaint, the
| plaintiff having received all he claimed In that
paragraph. This agreemep must be construed
as admitting that the first paragraph is good;
and where there is one good paragraph, a de-
murrer 10 the complaint Us an entirety is prop
erly overrued. Judgment affirmed
sUMMONs-sPECIAL APPEARANCE.
1867. Samuel Sargent VS.. Charles D. Flaid.
| Franklin, C.-Where the defendant appears to
| a summons, and on his motion obtains a con
| tinuance of the cause, he cannot afterwards
enter a special appearance for the purpose of
moving TO dismiss the cause for insufiicency of
the summons. Judgment affirmed,
NOTE - cancellation - FRAUD NEGLIGENCE
- 1880 James G. Hardy VS.. Samuel Brier.
| Hammond, J.-Compant to procure the can
| collation. of note in the hands of an lndorsee.
| The first paragraph charges that the note was
| forged, and the second that its execution was
obtained by fraud. The right to cancel forged
| Instruments belongs to the jurisdiction of courts
OF chancery. Il Story Eq., secs. 700, 70l) This
flgnt Is not superseded or abridged by the stat
ute for taking and preserving evidence for
! future use. Tue mere right of defense at law
when II may suit the holder of forged note to
! Drlng suit, cannot be considered as an adequate
remedy, because of the mpOssibility of antici-
| patlng fabricated evidence that the forger of
note would be 1Eely to resort TO in order to
! sustain its pretended validity. C. John.
On. r, sic; 4S Ind, 5I7; 46 i'd, $50
| The first paragraph was good. The second
! given to Hewes who falsely represented that he
was agent for store in Chicago, and that he
was taking orders for goods, and that the paper
| signed was such an order. The averments do
| not show that The representation made by
Hewes that he was agent for Chicago house
was material. There Is no charge that the APP
| pellee did not know its falslty well Hewes.
| 1t does not appear that any cunning cOntriv
| ance was used to induce appellee to sign the
note, or that he could not read, or that ne in
strumelt was Incorrectly read to him under cir
| cumstances which gave him the right to rely
upon it read. The facts do not show such
fraud as TO amount to a good defense to the more.
| t5tOry Ed. 694, A. The second paragraph of
| the complaint was, therefore, Insufficient. Judg-
ment reversed
| APPoRTToNMENT OF DOG-LIcENsE MONEY.
1911. School City of South Bend VS.. Andrew
| Jaquith. ST. Joseph c. c.
| Best, C.-Under sec tion 4,438, r. s., the school
| township, and an Incorporated town or city SIT
mated within the township, are distinct and
| independent corporations for school purposes
| the one embracing the territory within the city
limits, and the other that outside the city limits,
| and each corporation has separate school
| fund. sections 44S6 4.44Il The act of A prIl
| IS, 1881. which authorizes the collection of IA
fund from the registration of dogs, provides that
the surplus above $50 shall be transferred to
the school revenue of the township and ex-
| pended as part thereof for tuition. This must
be construed TO mean that it shall belong TO the
| school fund of the township, and that no part of
| it shall be transferred the school fund of the
| town or city situated within the township.
| Judgment affirmed.
GRAVEL RoADs-REFUsAL TO PAY TOLL.
l0,690. The Wayne Pike Company VS.. Angus
| tus BOswOrth. Adams C. q.
Blcknell, g. C.-Action to recover the statute
| ry penalty for travelling on toll road and
| tusing TO pay toll. Rule of the company pro
| vided that for the violation of any rule of the
| company the vloator should pay not less than
| $50 nor more than 800. There could be
| right OF action for violation of said rule, be-
| cause the company had no right to Tx greater
penalty for noe payment of toll than that fixed
| by the statute. The evidence fails 60 show that
| the defendant passed through any tollgaJe, nor
| was there any proof that any rates of toll were
ever established by the company. (5l Ind, A.
| Judgment affirmed.
| UNFINISHED TURNPIKE-INJUNCTToN
1869. Joseph d. sdener VS.. Haw Creek
| Turnpike Company Johnson c. c.
| Franklin, C.-Action by appellants to enjoin
the appellee from collecting tolls on its turn
| pike, which is six miles long. The report of the
| Inspector, filed with the complaint, shows that
| for more than three consecutive miles the east
| the company had right to take tolls thereon.
This report, unless appealed from. 1s conclusive.
The complaint does not show that the appellee
| had erected tOll-gates that portion of the
| road which was reported unfinished and out of
| repair nor that the unfinished portion was upon
| appellants land, TO give them special in
terest in the subject-matter go Ind, 1917 If
| the road was unfinished or out of repair appel
ants could successfully defend against any suit
for tolls without resorJng TO the extraordinary
| remedy OF injunction. Judgment affirmed.
| sHERIFF's sALE-EQUITABLE TITLE.
1884 Chas. W. Conner vs.. Samuel t. Wells.
Jackson e. Z.
Morris, C.-suit by appellee to reform a deed
| executed by Conner and wife to Thompson, who
conveyed by the same erroneous description to
| Wells. The land was sold on execution against
Wells and appellee holds under the sheriff's deed.
| The complaint shows that al the time of the
sheriff's sale Wells had the legal title to sixty
acres of land and the equitable title to140
| The Corners had agreed to convey this 40
| acres to Thompson, but by mutual mistake it
| was not contained in the deed. The facts bring
| the case within the rule laid down in (6S Ind,
| SO; 4 i'd 100 and Bkf 420) II Wells had but
! an equitable interest in the 40 acres it could
moi, unless The title was fraudulently retained
by the vendor at the instance of the vendee, be
sold upon execution co Ind, 491; u i'd, 1929 1t
follows that no title passed by the sherffs sale
TO the 40 acres, ana that the deed could nou be
| reformed to 1t. The demurrer 10 the com
plant should have been sustained. Judgment
reversed.
INSTRUCTIONS OFFERED TOO LATE.
1866. Samuel Hege VS.. Joel S. Newsom,
Bartholomew G. c.
| Black, C.-The statute requires that party
VINO desires special instructions to be gwen to
the jury must deliver them to the court before
the argument begins, and he is not entitled to
have any consideration given TO such instruc-
tions rendered after the argument begius. (27
| Ind 3SS; 80 i'd, 273.) ComplanJ is made of
| several of the instructions given but they were
applicable TO the evidence, and stated the law
| correctly. Judgment affirmed
The following cases were also decided, of
which abstracts Will appear Tomorrow:
.TOhu f. PAYNE David lime MOntOOmarv
| G. c. Affirmed. Best, G.
Henry Chalfant WIN. Payton. Jay C. c.
| Affirmed Franklin c.
Wm. n. JnhnsORe's. Eugenius Ramsey. Shelby
| &. c, Affirmed. Bicknel, &. Z.
Superior Court,