The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-10-16
Supreme Court-Oct. 49,
Hon. W. q. Niblack, Chief Justice.
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fhlNClPAL AND SURETE-EQUlIG.
10,4s6. ThOs. Madgett VS., Joseph N, Fleenor.
Bicknel, c. C.-Can a principal, who refuses TO
pay his debt and buys the surety's land at a sale
under an execution against both, be permitted
TO hod the land as against the surety, and thus
compel the surety to paw the debt which princi-
pal ought TO have padl As between the priu-
elpal ana surety III such a case, the principal
merely pays his debt to the amount of his bid
and equity requires that the surety shall hold
tho title 10 the land, uuclouded BY such a pur-
chase. Us Barb, 526J Judgment affirmed.
JUDGMENT FOR cosTs-TRANscRIPT.
1o12O. Abner 2. Dufour VS.. Jos. II. Kious
White Z. G..
Black, C.-Appelee's complaint alleged that
lie had purchased certain land in White county,
upon which the sheriff had levied an execution
Tor costs in an action in Switzerland county
against appellee's grantOr; that transcript of
the Judgment was filed in the White Cir
cunt Court, which showed costs taxed at 1875 in
sald cause, which sum was paid and that the rec
ora dld not show any other costs. Prayer that
me levy be set aside, etc. If the transcript be
auiy MED and recorded in another county, the
Judgment becomes a lien on the land of the
debtor though before the receipt of an execution
III mat county the land be sold to another with
out fraud. $50 Ind, 34S; rs i'd, 314.) II ia not
necessary IN Judgment for COSTS TO specify the
amount, and II definite sum be specified either
as the amount of the costs or as for a particular
Item thereof, it will not follow that the iudg-
Inent debtor is not further liable for the costs.
Inc Judgment Will embrace those costs which
have not yet accrued AT its rendition, "a well as
those then accrued as Ind, 529; 10 i'd, 306l
Inc complaint was naU Tor failure TO show that
the land was not owned by Judgment defend
ant when the transcript filed, or when the
appellee became the owner of II, or that the
amount or costs paid was the whole amount of
the Judgment or costs IG should have been
SHOWN either that kle Judgment did not consti-
tute lien on the land, or that IL had been fully
paid. Judment reversed.
1919 Eliza NJ. Dufour VS. joseph H. Kfous
White C. G.
Franklin, C.-The questions involved in THIS
case the same as those in the ease above
Judgment reversed.
INFoRMATIoN-AFFIDAv
11,O11. Taylor loops vs. The State. Clinton
Elliott, Jan affidavit upon which an inform
alton is founded may be made unOn information
and belief (S5 Ind 90; 81 ID GU Where the
evidence shows that the ditch ubstructed was
constructed under the order of the board of
county commissioners, the State is entitled to
treatlt as having been established in accordance
with law. Where accused voluntarily be-
comes a witness his testimony may be com
mented upon like thar OF other Witnesses. The
statutory provisions concerning defendants VINO
decline to testify has no application to such a
case, Judgment affirmed.
DEED OF TRUsT-coNsTRUcTIoN
1O,790 Nathan NJ. Coy VS.. Jacob Monte Jay
Best. C.-Appellees purchased land and
caused the same to be conveyed to them in
trust for the benefit of Joseph Srroble son of
the appellee, Mary, during his life. and in case
OF his death leaving children. then in trust for
them, and in trust for the heirs of appeees in
the right or the arpellees to sell and convey the
land, with the consent OF Stroble and invest the
proceeds in other land for his benefit. Where
the title of the trustee is nominal only the stat
ute executes the use. Il Perry on Trusts sec
29S0 Here the entire estate is not given to
strobe, but only a life estate, and the remain
der Is for the use of his heirs, if any, anG if not
for the heirs of the trustees. In such case the
statute Will not execute the use so as to confer
on him title in fee simple, no such estate
was conveyed to his use. The right of the
trustees TO sell the land, with the advice and
consent of Strobe, imposes duty on them that
they cannot discharge without retaining the le-
gal tite, and In such case the statute never exc
cutes the use. Strobe could not convey the
land to appellant. Judgment affirmed.
CITIEs-sTREET IMPROVEMENTS
1o.967. John W. Ray VS.. City OF jefferson
vile. Clark G. G.
Bieknell, c. C.-Section Of the act of April
ID, 1881, (acts 1881, chap. 39), is not unconsti-
tutional, because IL requires all lands within
hfty Feet back of a street improvement to be as
sessed therefor. Such provision is more equit-
able than the former law under which lot
owner could enjoy tho benefit OF street i'm
proYemenG without paying for it, by conveying
away strip of his lot along the street. The as
seSsments required by said section TO he made
by the city engineer are ministerial acts only
and 1t was in the power of the Legislature to de-
clare that the assessments should be made by
such an officer. IL is not his act il making the
assessments that deprives the lot owner of his
property in case of sale, but the property ia
taken by legally authorized proceedings, in the
course of which It's owner may have fair trial
by appeal to court of general jurisdiction.
q Ind, 32.) Where Improvement Is
ordered by two-thirds vote of the Council IN
der sec. 90 of the act of 1867, no petit
tlOn or notice of the application is required
nor is any notice of the assessment required
The complaint AYERS that the order to improve
was made without appellants knowledge, but
does not allege that he not duly notified of
the precepts pursuant 10 section II of the act
Judgment affirmed.