The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-12-01
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Yesterday.
Full Abstract of the Opinions Rendered by
the Judges of the Supreme Court
Work in the Local Courts.

Dearborn c. G..
Colerick, C.-Action by appellant agant APP
| pellee and three Others for an injunction. The
defendants demurred TO the complaint and their
demurrer was sustained. To his appeal TO this
court appellant made SimOnsOn alone the APP
! pellee. For failure to make tho other defend
ants parties to the appeal the appeal must pe
dismissed. (Hunderlock Dundee Mortgage
ana Trust Co., No. S,S32, last term) Appeal dis
| missed.
INDEMNIFYING Observation-Disclosures
1882. John o. D. Lilly VS.. William Max
Dunn. Marion s. c.
Franklin, C.-The question presented III this
case is whether an inGemnifying mortgage con
tanning no express promise by the mortgager to
| pay after the debt indemnitied against has be-
come barred by the statute OF limitations, can
| be foreelosed or redemption be made by the rep
resentatlves of the mortgage from "A sale under
prior mortgage. In States where the distlnc-
| ton between law ana equity has not been abol-
| ished, and where the debt aud mortgage are
distinct causes of action and distinct
remedies may be pursued upon them,
| 1t has been held that the fact that the
debt is barred does not necessarily prevent
! an action on the mort gage. (Jones Mort, sec
l,2O4) In other States, where suits in equity
are limited the same as suits at law, it has been
held that, the debt being barred, the statute IS
| in effect eXtin Guished Jones Mort, sec. POI;
! % Cal 16. 142; % Tex, $50; 80 Iowa, 303; 81
ILL.,, 400 In this STATE mortgage passes no
title, but only a lien. The debt is the rIncipal
thing, and when the debt is barred the lien Is
gone. al Ind, 299; II i'd, 1922 70 i'd. 80 In
! this case the mortgage contains no promise TO
pay the debt, and there is no promise in writing
10 pay 1t. IL stood as an open account for money
! paid by the mortgage for the use of the mort
eager If the collection Of the debt is barred,
! the mortgage, as mere security for its pay
ment. can not be enforced. The sixth answer,
which pleaded the SIX years statute of llmlta-
tlOns, was a good defense to the whole cause OF
action. Judgment reversed.
MARRIED woMAN-sEPARATE BUSINESS
| 1o,S97. Elmira Wallace vs. Julius Rowley,
administrator. Fulton G. G.
BickneI c. C.-The question presented is:
Was the note of married woman, given for
money borrowed and used in carrying on her
|
Under 2, 3 and 8 of said act married
| woman may carry any business on her sole
and separate account; may enter into any con-
| tract i'll reference to such business and may con-
| tract debts for which she will be personally liza
| able. The provisions include the power To Dor
| row money TO lie used In such separate business
and to promise to repay it by valid prOmissOry
note The special findings show, however, that
| the note sued on in this case was settled in n
claim which appellant filed against the estate of
the deceased holder OF the note. Judgment re-
versed.
| PRoMISsoRY OBSERVATION-DISCLOSURES
1O,390. Stephen C, Keesling VIM +. Wat
| son. Delaware G.. G.
| Best, O-The averment that a note was exc
| cuted implies delivery, aud is equivalent to an
| express averment that the note was signed and
| delivered, and this is so even though the note
at the time OF suit be in the hands of the defend
| ant. rs Ind, 1922 That tho note is in the
hands of the defendant is sufficient excuse for
not filing copy OF ii, and it is not necessary to
state how the defendant obtained possession OF
| IL. Il Works Prac., u. 1922 A prOmissory note
| imports n consideration, and in an action upon
it 1t Is not necessary to state what the considera
| ton was. (l9 Iuu., 29l; 81 ia, 1860 Judgment
affirmed.
GRANT OF LAND-CoNDTIoN sUBsEQENT.
| 1924. c., c., c. & l.. Railway Company vs.
Mary A. Coburn ct al. Marion s. C.
Bicknel, G. C.-ActiOn by appellant to obtain
| possession of a strip Of land and to acquire its
title thereto. The charter of the railroad com
| pany provided that of land acquired by
domination "thev shall be seized III fee simple of
the right of said land" etc. These words have
| been construed to convey a fee simple title But
where the company does not proceed by con-
domination, but accepts "A REIMBURSEMENT
coupled with conditions subsequent, a failure
! TO perform the conditions may work forfeiture
OF the estate. a IGd, 62S; 45 id, 552) In 1S49
Henry z. C0burn decided the land in controversy
| TO the company for Alright OF way, ON condition
that the company would locate it's depot on out
block l81, and would permanently maintain its
track on the ground relinqulshed i'll outlook
1S2. Afterward the company sold its
depot for a car factory and abandoned the track
leading to 1t through Outlot 1872, and COburn
leased the company from all claims by reason of
such removal and abandonment. Held: The
Abandonment by the company of it5 old track
to the land conveyed. g Wash.
r. P, $40; 4 Kent Com, 1872; 2 Pars.
the release which transfers any interest in the
land from Cobnrn 10 the appellant or which
valves any right of Coburn's aGcruing upon the
breach of the condition subsequent. Judgment
| affirmed.
| SUPERIOR COURTS APPEAL - CITIES - EEGLI-
GENCE-NoTICE
9,441. Stanton Turner VS.. City of Indianapolis.
Marion 3. @.
Franklin. C.-Appellaut had Judgment at
special term which reversed by the genera,
! term, and appellant then prayed an appeal TO
this court. The case was remanded to the
| special term, where the demurrer to the COM
| plant was sustained, appellant excepting and
| declining to plead further Upon the reversal
by the general term the first decisive act of APP
| pellant was to pray an appeal to the Supreme
Court After that he mad one year in which TO
peI feet his appeal. When the case went back to
| special term had he amended his complaint or
done any other act eyincing All intention TO pro-
coed further with his case in the special term it
would have been construed as an abandonment
OF his appeal and waiver of his right to appeal.
| (Bigelow Estop., 1922 But his acts did not
| amount to so doing and did not cut off his right
| to perfect his appeal. Members of the fire de-
| partment ana of the street department of a
| city are not co-servants within the meaning Of
| the rule that the negligence Of the one will
ieve the city from liability for injuries sustain
! ed by the other. Appellants complaint was bad,
| however. for failure to aver that the city
had no tice of the obstruction in the street, or
| its continuance for such length of time as to
constitute constructive notice. DC Pick, Sal:
| AT Ind. 391-) Judgment affirmed
DRAINING WET LANDs-coNTRACr OF CITY.
| 9.476. City of Peru vs.. Newell Clemson. Mi
| ami g, c.
Black, C.-The complaint of appellee
owners of separate tracts of swampy LAND adj
| joining the city of Peru. and for the purpose of
| draining them, as well as some wet land within
| the city limits, the land owners and the city
| tered into an agreement whereby the city be-
| came bound to enlarge and keep in repair
ditch on Benton street, through the city, for car
\ rying off the water, and the land owners to dig
| at their own expense ditch connecting there
| with from their lands; that appellee performed
| his part of the contract, but the city, after
| enargtng SAID ditch, failed to keep
| IL open, 10 his damage, etc The BentOn-street
! ditch was an artificial water.course conducting
| water from the lands of the appellee and others
outside the city into aud through the city to the
| canal. The appellee had no right to have his
| land so drained unless he acquired such right
! under the contract 1t is nor shown that his
lands have been Injured but only that the ditch
| made by the city does not carry off all the
! waters that accumulate on his land, and that he
| has not therefore been benefited TO the extent
! contemplated by the contract The city could
! not make binding contract to construct and