The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-28
Supreme COurt-Nov. 80.
Hon. Geo. v. Howl. Chief Justice.


Gre. Huntington G. C.
Hammond, 1.-THE court may properly say to
the jury thar, in considering the credibtlity OF
witness, certain things may be considered ny
them. But tits error to say that such things,
the interest of the witness. etc, musr, as mat
ter Of law, he regarded i'll determining the qneS-
tion of eredihiIity. (55 Ind, 455; Sc i'd, 179;
Ga i'd, 1877: IS i'll, 1S1.) Appellant offered TO
read in evidence the testimony of the appellee
"purpOrting to have been given by him on a
former trial of the case and taken down ana
saved by demurrer to the evidence. Without
proof or admission that the evidence was in fact
the appellee's evidence at a former trial, as
shown by record of the court TO be the demurrer
containing such evidence, il was rightly exclud-
ed. The evidence given at former trial by
witness not deceased and who IS not party TO
the suit, is not admissible except for the pur-
pose of impeachment. and for such purpose
bill OF exceptions or demurrer to tho evidence
purpOrting to contain his evidence at the former
trial Is not admissible. (46 Ind, 368; Sc i'd,
1922 Judgment affirmed.
NEUTRALITY-SUSPICIOUS. MUST SET Up THEIR
LIENS.
9,8l2. Barbara Hose VS.. Franklin P. AL
vein. Whitley c. G.
collars, J.-AppeIlant, as heir of Teresa Win
ter, inherited certain land which Mrs, Winner
had purchased upon foreclosure of mortgage
on the land executed to her by Jacob Hose and
wife. and for which she had obtained sheriff s
deed. This action was by appellant to enjoin
the sale of the land execution in favor of
Ulerick against said Jacob Hose Ulerick was
made defendant to the foreclosure suit, the
complaint alleging that his liens were inuior to
the Winter mortgage. This complaint chal-
1enged him to set up whatever liens he had and
TO disclose their nature Being the owner OF
the Judgment upon which the sale is now threat
ened, and not having set IL up in the foreclosure
suit, 1t is too late now than it is lien upon the
real estate superior to the Winter mortgage. II
was his duty TO set up in that case whatever
claim he had. whether senior or junior. 1t was
alleged In the complaint that his liens were
junior, and it was so adjudicated In the Tore
closure of the Winter mortgage. tSS Ind. 354;
Woodwork vs. Zimmerman. No 9,767 last erm;
Buchanan va. Berkshire Life Insurance Conn
N o.. last COMPLAINT
good. Judgment reversed.
PUBLIC sTREEr-DEDIcArIoN BY OWNER.
10921. William G. Faust the City of
Huntington. Huntington G. G.
Elicit, J.-Appellanu in his complaint alleges
that In 1874 he plated addition 10 Hunting
ton and dedicated to the public use. part OF
Market street, sixteen feet, thus Increasing the
with nf that street TO sixtyslK feet and that the
city authorities about TO improve said street,
locating thirty-three feet instead Of sixteen on
the plaintiffs land, without any grant therefor
or proceedings to condemn said land. The COM
plant shows that the city had not acquired
right by grant or by the exercise of the right of
eminent domain, but does not show that the land
was not acquired by implied dedication. II APP
pellaDt by open and visible acts Indicated that
he intended 10 and did throw open street to
the public, and the citizens and public acted
upon the faith that there was dedication, the
law will treat the acts of the owner consti-
tufing an irrevocable dedication. (96 u. s.,
716; 81 Ind. 235: SO i'd, $50; 81 N. Y, 474l In
such the right of the public Will vest by
user for even a short period. q Dill. Nun.
Corps.. 81 ed. sec $685. 81 Ina, 20l; 66 i'd, III;
70 i'd, 90) The acts of pnblie officers pre-
sumed TO be legal until the contrary is made to
appear, and IL devolved upon the appellant TO
show by direct averment that the officers were
proposing to do an unlawful act. Judgment az
firmrd.
FORFEITED REcoGNIzA NcE-DoCKET ENTRIES.
10,S12. Thomas L. Fowler VS.. the State. Henry
C. C.
Niblack. J.-Appelant was arrested on
charge Of selling liquor to a minor and entered
into ree0gnizaDcr before the Justice "to an
swer TO a charge of selling liquor TO minor and
abide the Judgment OF said court" Appellant
did appear hut took a change of venue TO aneth-
er justice. whereupon thu first ordered appellant
to execute new recOgniZance to appear before
Justice Dunbar. Failing TODD his rec0gni-
nizance was declared TO he forfeited. Held. the
reeognizance In legal effect an undertaking
that appellant would abide by all lawful orders
which might be made by tine justice IN the cause
and when he failed to enter into a new reeOgDi-
zance TO appear before Dunbar he forfeited MIS-
undertaking to abide by the JUDGMENT Of the
court (Moore's Grim. Law, Sec 235; 62 Ind, 367.)
The statute requiring docket entries by Justices
in civil cases to he made within a limited time
does not apply TO criminal cases. Wright vs..
Fausler No. $500 1t is sufficient in such cases
that the entries he made up in time to serve the
purposes for which they are lawfully designed.
Judgment affirmed.
FRAUDULENT CoNvEYANeE-oUIETING TITLE
LIMITATIONS.
8.16s, John G. Eve vs. julius Louis ct al
Floyd C. C.
Black C-Complaint by appellant to foreclose
a mortgage. Appellee fled cross COMPLAINT
alleging that the mortgaged land was owned by
Bobert Gresham Who became insolvent ana the
land was bought in at a sheriffs sale by Frisbie;
that it was agreed between Ftisbie and Gresh-
am that the latter might redeem fr0m the sale
whenever he was able 10 repay the money due
Frisbie with interest; that in order to defraud
other creditors of Gresham lie had the land CON
veyed hy Frshie to E-singtOn who executed the
nofes and mortgage in suit to Frisbie, by whom
they were assigned to Gresham's wife and by
her to their daughter Mary, who assigned them
TO appellant; that all these transactions were
fraudulent and without any cons deratiou; that
apa-IlnP, as one of Greshani's creditors. had the
!sor sold on execution and bonght 1t IN for his
debt. Prayer that his title he quoted as against
the mortgage. Answer, that appellee's claim
did not accrue within six years before the
bringing of the action nor within six
years before the cross complaint was
filed These answers were held good The ap-
pellee's crOss-complainr was bad for failure TO
alege that at the time of the sale to apnellee
Gresham did not have other property sufficient
TO pay his debts. No distinction is made to
this requirement whether the conveyance be
made by the debtor himself CT the land is pur-
chased by him and conveyed to another. (72
Ind rs; IS i'd, 1885, o. i'd, TS; i'd, 56.) The
appellee acquired title by his purchase, but the
fraudulent conveyance renamed n cloud upon
his title and in order to remove i5 he must show
it's fraudulent character. which requires proof
of the fact above mentioned. Appellee could
not assail the mortgage without impeaohing the
conveyance, as otherwise lie would have no suf-
ficient interest TO do So Where II defendant has
a cause of action against the plaintiff. not barred
when the suit is commenced, IL will not be de-
feated by the fact that at the time OF filing his
pleading the period for instituting an indrpend-
ent action thereon has run OUT. Appelee's right
to uossessiou accrued when he received his
sheriff's deed and continued for twenty years
from that time. t27 Ind. 263; II i'd, l84) At
any time for twenty years. If still out of
possession. he had n right to have his title qui-
eted against any adverse claim 0f title infer
est asserted at, or withn the fifteen years be-
fore the commencement OF his suit The limta-
ton of six years was not applicable (62 Ind,
1450 Judgment reversed.
NOVEMBER q.
SUPERIOR Observation-Disclosures
VERSION.
8,706. W. II. II. Terrell ct AL VS.. John W. But
terrified, executor. Marion 8. G.
HOwk, jim providing for the organization of
the Superior Court. it was the intention of the
General Assembly that It's modes OF procedure
should lie governed by the provisions OF the code
applicable in like in the other courts of he
State Of original or appellate Jurisdiction. (46
Ind, 2s6; 55 id, asa; II i'd, 1881 The court
may, after the decision of a case in general