The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-02-26
RECORD OF THE COURTS.
Proceedings i'm the Various Courts Of
Record, Friday.
Fun Abstract of the Opinions Rendered
by the Judges OF the supreme Co-:rt
Work i'll the Local Courts.
supreme Court-Feb. rs.
Hon. William A. Woods, Chief Justice.


PARTITIoN-PLEADING-vE LIEN.
9.S73. John NaJter VS.. Ellen Foueh. Upton
C. &.
Black, C-suit by appellee for partition and
TO quiet her title to real estate. Answer thaU APP
peliant sold the land to appeliees husband; that
a portion of the purchase money remaining I'M
paid, appellant obtained a judgment FOR the
amount due against appellee'E husband, ana
bought in the land at sheritfS sale for the fulI
amount OF his Judgment. This answer was In
sufficient. Ii il showed that appellant mad
vendors hen on the land il dld not show that
his equitable right had ever been entcrced'
and tue mere right to enforce vendor len
constitutes 20 defense to an actI0n by the owner
of the landifor partition. q Ind, 492) Re
garded as a counter claim to enforce vendors
nr rn show was also ba d Sa TOR husband
left no other property out OF which
the debt could have been made. BY showing
the levyng of the execution upon the land on
which the hen existed, and the sale Of l. 10 APP
pellant, it showed his election 10 release his
lien on the land sold. even II tho debt had not
been fully paid by this SALE butit showed, also,
that the claim for purchase money was fully
paid. Judgment affirmed.
AeENcY~sEcuRITY BoND-coNsTRUcTIoN.
9,372, Columbus Burns Singer Manufac-
turing Company. Decatur c. C.
Bicknell, C.-Complaint for review, The orig
inal suit was on bond executed by appellants
as sureties of Fnrsy to the appellee, and 1t
was answered that Forsyth was appointed the
agent of the appellee, and the bond was given at
the same time 10 secure his faithful performance
OF the duties of such ageney that the claim in
suit accrued after the agency had been terml-
mated and the liabilities OF said Forsyth as such
agent were fully settled The bond by its terms
embraced "every Indebtedness now existing or
which may hereafter exist The bond and con-
tract of agency should be construed together;
and so Construed the words above mentioned
have reference only to Indebtedness IN the
business of the agency, and do not contemplate
Indebtedness for the purchase OF goods after the
agency was terminated (22 Ind.,. 3SS: "a i'd,
ia; d i'd, ITO; IS i'd, 494; l6 Gray, 4z4, so
Ind, 500. Judgment reversed.
DECEASED OBSERVATION-DISCLOSURES BY SURETY TO
SUE
9,s17. Harrison Daily VS.. Jacob Robinson.
Black, C.-Suit by appellant on note An
swer that appellee executed The note as surety
for Philip Daily, who was the principal; that
Phtlp died leaving large estate, ana that APP
pellant was appointed his administrator; that
the estate was still pending unset
tied; that appellee gave appellant a
legal steps for the collection of the note, but APP
nellant failed so to do. The question presented
statute applies to eases where the principal is
dead. His Honor discusses the principles of the
statute, and holds that the case made BY the au-
swer is within the meaning of the statute
Judgment affirmed.
CITIEs-DEFECTIvE NEUTRALITY-SUSPICIOUS..
9,427. City of Washington vs.. Tabitha Small
Daviess C. G.
Morris, C.-The complaint of the appellee al
legged that appellant constructed ditch along
the sidewalk and removed the props and sup
port under the south side of the walk, causing it
/ TO become tlpDeu duu SiantlHR anu u ylbltl uil-
der the weight of person walking on 1t; thar
while passing it with due care and in
ignorance of the defect, she fell and was
injured. 1t cannot be said, a matter
of law, that the defective condition
of the walk was patent that
with reasonable care the plaintiff must have seen
it. The ayerment that she was injured without
fault ON her part equivalent to averring
that she could not, by reasonable diligence, have
been removed. (76 Ind. 291: &C i'd, 1856 AZ i'd,
$40 The evidence tends to support the YER
dict, and where this is so the verdict cannot ne
disturbed. TOO Ind, 73; 16 3D. 2S2) There was
evidence showing that the walk had been IN Its
then defective condition for months, and II this
were the law would imply notice on the part
of the city. (6l N. y, 5O9) Judgment al
firmed.
LOCATING OBSERVATION-DISCLOSURES
9.998 Peter Breitweizer vs.. James Fuhman.
Dubois C. g.
the county board and there failed to demonstrate
against the locating OF a highway cannot after
wards do so on appeal to the Circuit Court. Such
person can object to and htigate only the mat
tiers litigated before the county board. (75 Ind,
70: 81 i'd, 154.) In this case it was shown by
affidavit that when the viewers made their re-
port to the county board appellants gave notice
that they would object to the report, and the
board fixed the next day for hearing the same,
al which time a motion to vacate and set aside
he report was filed, and the board stated that
they would give their decision at
. O'Clock on that day; that at 2 o'clock ap-
pellants appeared and offered to file re-
monstrance on the ground that the road
would not be of pubic utility, but
too late, and would not permit the filing
OF their remonstrance. This wrongful action of
the board must be deemed 10 have prevented APP
peliants from filing before the board remon-
strances for damages. The appellants had a
right to defeat the petition, If they could. by
remonsrance for want of public utility and, fail
ing In that, might then claim damages. t66 Ind,
310.) II not necessary for them 10 claim
damages before the other remonstrance was de-
termined, for, II the road should fail for want of
public utility, they wouldneed no claim for dam
ages. Appellants, being thus. wrongfuliy de-
prived of their rights, such appearance as they
were permitted TO make did hot waive anything
that took place after the appointment of the
viewers. The court erred in refusing to permit
appellants to file their remOnstrance claiming
damages. Judgment reversed.
FORECLOSURE OF LIENS RES ADJuDIoATA A.
SEGREGATION.
1o,16l. Israe! Ulrich VS.. Jacob Drisehel
Wayne G. @.
Elliott J-Wherein a suit to foreclose a mort
gage appears, answers and pleads by way of
cross complaint, asserting title by mortgage, and
obtains a decree establishing the seniority OF his
lien aud directing payment to he made first OF
his hen, second of the plaintiffs lieu, the sur
plus to be pain to the mortgageor, the decree CON
Guides him from atterward asserting titIe under
another mortgage held by him at the time of
filing his cross complaint as against one who
has bought from the mortgageor and redeemed
from the sales made on the judgments and orders
embodied in the decree. I'll Tnd, 1856; IS Iowa,
46l; 10 Paige, 395; Sd n. ", $40; 80 ind, 4l0;
IS i'd. 243 So i'd, 410J But where the intro
ductory decree shows that the other mortgage
held by the erosscom plainanb was an unpaid
and subsisting hen, and in the body OF the de-
cree no provision is made for its payment, the
cross-cumplainant is not concluded by the former
decree, but may fOreelose the mortgage. In
such case the person who has purchased the
land from the mortga geor and redeemed from the
prior liens is entitled TO be subrogated to the
n ghts of the senior lienors as against such cross
complainant, who may proceed to fOreclOse his
mortgage but cannot treat the senior liens as
tnguished. Jones Mort 500; Sheldon Sub,
SI2.l Judgment reversed.
CITIEs-PowER TO ESTABLISH WATER WORKS.
1929 CITY of Vincennes vs.. John X. Callen-
der Daviess c. o.
Howk, 1.-The act of March %. 1879. author
Izing cities and towns to construct water-works,
does not repeal either III terms or by implication
the power conferred by clause 20 of section
3,1o6. r. s., 1881, to authorize by ordinance any
Incorporated company to construct water-worss