The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-06-04
THE COURT RECORD.


| property Of the Judgment debtor in the hands of
must have been issued, and there must be an
| afhdaVlt that sueh person or corporation mas
property of the debtor or is indebted to MIN In
| an amount which, together with other property
! Claimed by him as exempt from execution ex-
| ceeds the amount exempt by law. In this case
| IL WAS alleged that an execution had issued ana
was still in the hands of the sheriff unsatisf1ed,
| but 1t was not made to appear that the judgment
debtor had claimed any property AS exempt
| from execution. 1t was alleged that the property
sought to be reached. together with that already
IN the hands OF the debtor subject to be claimed
| as exempt from execution" exceeded the
amount exempt by law. Exemption
| Is privilege that is waived by not claiming
| it. Ii may have been that the debtor had prop
| erty which he had not refused to apply upon the
Judgment. and which he had not claimed as ex-
empt, sufficient to satisfy the execution, upon
which no return had been made, but was still Ill
the hands of tine sheriff. Judgment affirmed.
! PAYMENT OF cosTs-vExATIoUs LITIGATION.
| 9,245. Sarah Kits VS.. William d. Wilson ct
al Ripley G. G.
! collars. J.-snit by appellant to qniet her title
! to one third Interest IN certain land of which
| she claimed her husband had died seized.
motion TO stay proceedings until the costs in n
| former case should be paid by appellant WAS
Sustained, and an order made perpetually enioin-
| ing the further prosecution Of the action II the
costs were aOt paid within six months. The for
| iner suit WIS upon the same cause of action and
/ between the same parties except thst the ac-
ministrauOr of Cavens, the former owner of the
4 land, was omitted as defendant in
the second action, and Thomas L.
/ wilson, the purchaser of part
| Of the land, added. This difference of par
ties would not prevent the application OF the
| rule staying proceedings until the payment of
! costs in the former action. (6 Hill,
l. 49, Pa st., AS; 5 Cow, 90 To the motion
| appellant answered under oath that upon the
trial of the cause she learned for the first time
| that Thomas &. Wilson claimed any interest i'll
the land, and that she dismissed the action I'M
| der the advice OF her counsel; that she is owner
| of one-third OF the land, and is prosecuting the
suit for the sole purpose of securing her rights
and with no malicious purpose. In such cases
the order staying proceedings is made upon the
ground that the second action Is without merit
| and vexatious, and this will be presumed until
| the Inference 10 removed by showing to the
contrary. (64 Ind, is; john. Chy., 46l;
Paige 3D. Appellants answer was sufficient to
| rebnt TINS presumption. In n proper case the
| court may fix reasonable time within which
the costs shah be paid, hut the penalty for fail
| ure TO pay within that time should be dismissal
| OF the action and NOT perpetual injunction. Il
Paige Gu, 53J Judgment reversed
TAXATIoN-PERsoNAL PROPERTY IN TRANsTU
1908. Standard Oil Company VS.. Lemuel
Bachelor Wells c. G.
Niblack, 1.-The question presented is whether
| "A lot of slaves purchased in this state by an
ONO corporation and awaiting shipment to the
latter, can be taxed as personal property owned
| by nonresident in this State. Personal prop
erty In transit through, temporarily within
a State other than that III which the owner re-
sides, cannot be taxed in the State in which 1t is
so found, on the principle that for the purposes
of taxation 1t belongs To the State i'll which the
owner has his residence. Burroughs on Tax 40,
Al; % N Y, 224;2 II Ind.. S35; 27 i'd, 2S8 50 i'd
472) Tho Act OF 1872 Il r. s., 1876, 75) which
State owned by persons not residing within this
STate" snail be subject to taxation. must be con
strned to mean al personal property having a
permanent sltus In this State. (57 Ind 472@
In this case the slaves had lost their
situs as taxable properly in this
State and were, in legal contemplation, in
transtu from the points where appellant
had purchased them TO Cleveland, O., their ultI-
mate destination. aud had become part of the
taxable property OF ONO. Judgment reversed.
DIvERTING MISUNDERSTANDING.
q
son e. Harvey, TippeeanueS s. G,
Bieknell. faction by appellee against appel
liant to recover damages for erflowing ais land
The real question IN the was whether the
body Of water called Lake Headley was q run
mug stream or mere surface water 1t is well
setted that for ohstructing natural water
course an action will lie. (75 Ind, 241; II id.
3o2, 364) But a landowner has II right TO ward
off surface water from his own land. Us Ind,
279) The Instructions we're appropriate 10 the
evidence. and fairly pointed out the distinction
between permanent water course and mere
surface water. The evidence showed that the
| lake was fed by living streams and whether the
water passed away by an outlet on the surface
downward 5ArOugh bed OF gravel siIoh pass
age would still be the natural channel
| ot the current which the defendant would have
no Right 10 0DStruob. Judgment affirmed
DETERIORATION SUBSEQUENT.
10,192. Lafayette, etc, GraveI-road Company
vs.. Mary Vanclain. TppecanOe s. e.
| Black. Gin 1864 one Cox conveyed certain
1 land reservinga strip used by appellant for a
toll-house, upon condition that "when the pres
ent place Of collecting toll is removed from said
land then said strip IS To revert to and belong
\ tn the tract above described" Afterward the
| road established new l-gate at some distance
from the old one and not upon said strip, where
nearly all the tolls of the road were collected,
but continued to keen the old gate in nominal
/ use, the property being occupied by person
who paid the road company S25 year for the
| use thereof, and the tolls collected amounting to
/ only about 81 month. Looking to snbstanpe
| and not inere form the event contemplated In
\ the deed had occurred. The use of the old
house for other beneficial purposes than
shat of gathering tolls. and the collection Of q
/ merely nominal amount OF tolls there.
\ white the substantial revenue OF the COMPANY
| WAS collected at another place, amounted TO a
onange OF the place or collecting toll as conten-
plated in the deed. Judgment affirmed.
MARRIED woMEN-MoRTGAGE-PRAc
10,22s. Elizabeth Fitzpatrick VS.. William
| Papa. Alien c. c.
Elliott. J.--suit by appellee to foreciose "A
mortgage Appellant answered that when the
note aud mortgage was executed she was a mar
| ried woman; that they were executed TO secure
| a debt OF her husbands. and that she was the
owner by gift and devise OF the land mort gagged
| Reply: That the consideration OF the note and
mortgage was the surrender OF former MORT
gage lien and the extension OF time on the debt
1 The act or 1879 was In force. The reply was
| gond. wife who executes a mortgage to Sc
cure the release of valid lien ca mot escape the
mortgage was executed to secure the debt
| OF her husband. The benefit moves
to her. for it relieves her property of
burden. A cross-eomplaint filed in a
! foreclosure suit, asserting title to the land
described IN the NOR gage. ts essentially an oc-
ton to quiet title. If the crOss-compaint sue
ceeds 10 is upon the ground that he owns a title
| which he ia entitled To have quieted The plead
| tngs and practice in such cases are essentially
the same rs In action to quiet title to land. 80
Ind, 55J The appellee was therefore entitled TO
give In evidence under the general denial ali le-
ultimate matters OF defense to the cross-cOm-
plaint. Judgment Affirmed.
MoRTGA AssIsNMExr--PAEr1Es- -aEeoRprSe
1o.19o Thomas j. Nichol VS.. Jesse L. Heury
Madison c. c.
Best, C.--The statue requires a MORTGAGE, in
an action by assignee, to be made a defen danJ
unless the mortgage has been assigned by in
! dOrsement In writing. This Endorsement must
| he made by the mortgage. In case the mort
gage Ia assigned by delivery and such as
signee again assigns by Endorsement TO sec
ond assignee, tho latter, In an action