The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-21
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record, Friday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.
Supreme Court-April 10.
Hon. william A. Woods. Chief Justice

MARRIED woMEN-AcT OF 1875 CONSTRUED.
$3.50. Mary A. Kocher VS.. Daniel Christian.
Huntington c. q.
Morris, C.-Tbe act of S75 which forbids
wife to mortgage or incumber her real estate
acquired by devise, descent, gift security
for the debts of her husband, does not prohibit
her from conveying such real es cate In payment
or her husbands debts. Such conveyance IS
not a mortgage or incumbrance of the estate In
any sense The object of the act was not to proElb-
1t the wife from assisting her husband in paying
his debts, but mainly to protect her from the
risks arising from credit given the husband
based upon her separate property. Upon the
evidence new trial should have been granted,
as the appellant was entitled to larger damages
than the jury awarded her. Where husband
procured deed from his wife for her third In
land sold under a judgment against him, she was
entitled TO recover from the grantee the full
value of her interest in the land Judgment re-
versed
SALE UNDER THE DITCH LAw-CoLLATERAL
ATTACK.
9,424. David Simonton VS.. Mary ]. Hayes.
Black, C.-suit by appellees to set aside as void
sale OF land for delinquent taxes on account OF
the making of a ditch, under the act of 1879.
The only grounds of the action we're that the
contractor who excavated the ditch did not
properly perform the work, and that the ditch
was not public benefit, etc. The contrary not
appearing it must be presumed the commission
ers acquired jurisdiction in the proceeding to
establish the ditch, ami having jurisdiction 1t
was implied by their action that they found the
work to be of public utility, and 1t was not
necessary that their record should show aflirma-
tively that they so found. $50 Ind, 63) So the
DOW er to decide when the work was completed,
and to accept it, was given to the commissioners
or the auditor, and the proper officer having
accepted the work the question whether the
work was properly done cannot be raised by a
collateral attack. ga Ind, 4O9) Judgment
reversed.
HUSBAND AND WIFE-JolNT ACrIoN-DAMAGES.
9,643. John j. Section vs.. Catherine Mann.
Grant G. g.
Bicknell, C.-Appellees owning land incumber-
ed by mortgage, appellant paid off the encum-
DranCe. aDnellee9
any portion of the land within year for enough
| TO reimburse him for the money paid with IN
ness of appellee, George W. Mann, the latter
| should have the excess Of the money received,
| and the land remaining uns0ld should be decided
| to Manns wife. In suit upon this contract
| the husband and wife were rightly joined as
| plaintiffs so far as the unsold land was con-
| cerned, the wife being the meritorious cause of
| the action. (52 Ind, I71) Under the contract
the jury had right TO lind separate damages for
the husband and wife in the same action. Code
of 1852, SEQ 36s; 26 Ind, 23s; 10 i'd, 204; II
| i'd. 352; % i'd, 523) Judgment affirmed.
ACKNOWLEDGEMENTS OF LANDs-EJECT-
MENT.
1883; Lake Erie, etc, Railway Company vs..
Henry Kinsey. Jay G. C.
Franklin, C.-Under the law for approprating
land for railroads the payment of the damages
awarded by the appraisers gives the railroad
right to immediate possession and nrima facie
title, subject to an appeal within ten days after
the award is made. II an appeal is taken no
title vests and the corporation is mere ltcensee
to hold possession for the purpose of construct
ing Its road pending litigation, and when the
damages have been finally fixed, on appeal, the
company must pay or tender the amount fixed,
and upon failure to do so it acquires no title,
and its rights as q licensee cease The intention
to take an appeal to this court does lot continue
the litigation or interfere with the tinality of the
Judgment as to compensation. mills EN-. DOM,
sect. 1877; 80 Iowa. 327; Is Kan. 574; 8 Watts
& s.. 1885, 80 Ind, 1898: AZ i'd, 178; 81 i'd, 260;
SO Id, 463 Cd Mo-, 453.l Where the damages
assessed on appeal are not paid
the landowner may maintain an action
Of ejectment q Hill. 629 IS Kan, 496.
20 Wis, 1856; 10 Iowa, $40; 66 Pa. ST., 404; 81
Mo-, 1856 90 ill.,. %; "a Bari, 500 Nor is the
landowner liable to pay for the road and its
improvements. Until the question of just com
pensation is finally settled he cannot Interfere
with the construction OF the road. He does all
he can by taking his appeal. al iowa, 419; 80
| i'd, 34O Mills Enl. DOM, SEQ. l43. Judgment
affirmed.
9,1S9. Berghoff VS.. Mcdonald. Koseiusko c. c.
Franklin, C.-Where an amended complaint Is
| filed and new answer is filed thereto, error
cannot be assigned on the sustaining of a de-
murrer to the original answer. The action of
replevn sounds in tort. (5S Ind, 27S.) And
in torts the relation of principle and agent does
not exist. All are wrOng-dOers and may be sued
| Jointly or separately. Rehearlng denied.