The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-10-12
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.
Supreme COurt-Oct. ii.
Hon. W. E. Niblack, ChiefJustice.


the lot in controversy, and demanding it as eX-
empt. The sheriff appraised and set apart the 1
personal property, but did not appraise the lot.
1t was the duty of the sheriff to appraise the real
estate we'll as The personal. and his failure to
do so did not affect the validity of the claim for
exemption. (6l Ind, 641 1t was shown that
appellee had other real estate, which he falled
to include in his schedule; but although the
claimant owns other property, and is liable tor
perjury upon such false statement IN the affi-
davit, he is not precluded from claiming and
holding the property levied on as exempt from
execution. $50 Ind, 536; 81 i'd, 5549 Juog"
ment affirmed.
TENANTS IN .coMMoN-ADEERsE POSSESSION.
l0,303. Mary Elliott VS.. Thomas Frakes.
Howard C. c.
Hammond, J.-Action by appellant to recover
possession of real estate. The facts are that in
1854 John Sipe died. owning eighty acres OF land,
and his widow Elizabeth, who took one-thlrd
of the lana, died in 1856, devlsing one-halt OF
her interest 60 Isaac Sine, who conveyed to ar-
pellant After the death of 1ohn Stpe his ad-
mnlstrator, under an order OF court, SOFA the
whole eighty acres to Ziiox, who sold TO appel
lee, and the latter claimstO have been in adverse
possession of the land when the Veyance from
Isaac Sipe TO appellant was made. Held: Slpes's
administrator could only sell two-thirds OF the
land "a Ind, 412J, and appellee and appellants
grant0r Were tenants in common at the time OF
the convey ance to appellant. Inc rule OF al
verse possession does not apply TO the convey
.anCe of "a tenantin common. 10 lnd., Zol.l Inc
deed to appellant from Isaac SIpe therefore
valid. RI An answer of adverse possession
which merely states that the defendant holds the
land under warranty deed, but faffs TO snow
murrer. GA Ind, 8l) Judgment reversed
wIFE's INcHoATE INTEREsr-CoNvEYANCE
10.397. Albert Vest VS.. Simeon B. Hayes.
Henry c. c.
Morris, C.-In November 1873. certain land
owned by Petty was Sold under an execution
against him, to Sharpe. Two months after the
sale Petty and wife conveyed the land by deed
TO Hayes. HEIDI The deed of Petty and wife to
Hayes passed their respective interests IN the
land TO him, and he occupied the same relation
to the land that his grantors would have occu-
pied had they not executed the deed. The land
not having been redeemed, Mrs. Petty would
have been entitled TO one-third of it in fee es
against the sherf's grantee, and this right
either passed to Hayes by the JOINT deed OF
Petty and wife, or it remained in her If 1t re-
NAMED In her she became entitled to One-third
OF IL at the expiration of the period for redemp
tion, and the title thus subsequently acquired
by her would enure through her deed to Hayes
(56 Ind, IL Judgment affirmed
DAMAGEs-CosTs-sET-o
10,45O. Sylvanus Moore VS.. Mahlon Newlin
Franklin, C.-Action by appellants for work
and labor in making a we'll The plaintiffs
witnesses placed the value OF the well at
from 500 TO SLIGO those for the defendant
testified that it was valueess. The verdict was
for So in favor of plaintiffs In such case
this court can not say, without weighing the
Under the contract set mp in the second answer
appellee was TO have sixty days within which to
test the WE'LL and If not satisfactory he was not
to accept OF pay for it, and upon trial he refused
to accept it. The third answer was breach of
warranty. Held. THESE answers We're not IN Jne
nature OF a setof or countercialm, and the costs
were rightly taxed against the plaintiff g Ind,
53s; 20 i'd, so; SO i'd, 1856; 80 i'd, 216) Judg-
ment affirmed.
DEMURRER TO NEUTRALITY-SUSPICIOUS..
1o,863. Samuel Kincaid VS.. Elizabeth Nicely.
Boone G. G.
Black, C.-The question in this case was
whether the grantor in deed was of unsound
mind, and the defendants demurred to tine plain
lifts evidence There some evidence lend
ing though perhaps slightly, to prove the grant
or's unsoundness of mind. On demurrer TO evil
dence, If there is any evidence tending to sus-
tain the party having the burden, it can not be
weighed by the court, but the demurrer must be
overruled. Where II ls allowable to jury to
decide in favor of the party whose evidence is
demurred to, it is the duty or the court to do
Judgment affirmed.
RIGHT OF HEIRS TO sUE-PLEADING.
1913. Elk rel Parnen vs.. LUCINDA Sanders.
Hendricks, q. G.
Best, C.-Suit by appellants on the bond of APP
pellee as administrators OF the estate OF Benz:
James Paruen, deceased, The complaint
averred that James Parnell died in 1876 intes
ate, leaving no debts, that no administration
was had on his estate, and that the REALTORS are
his heirs at law. In such case the complaint
must show that the decedent left no wid9w, or
that she has relinqushed her clam. (34 Ind,
524l The averment that the relators 'Jhe
heirs at law" of the decedent cannot be con-
strued to mean that the deceased left no widow,
or that one OF the REALTORS Is such widow. Judg-
men5 affirmed.
NEUTRALITY-SUSPICIOUS.
1884. Ebert johnson vs.. VIM. Brlscoe.
Spencer, G. c.
Norris C.-Where the parties submita cause to
the court for trial upon an amended
complaint such submission valves an
issue, and the pleading not answered is regarded
as denied. (65 Ind, l; so i'd. 95) In an action
to recover possession of real estate and dam
ages for its detention, damages may be recOv-
cred up to the rendition OF Judgment. $50 Ind,
52) Admissions made in open court are con
elusive for the purpose of tue trial. 70 Ind.
323.) Judgment affirmed.
STREET Observation-Disclosures
1o,56s. James Goring vs., James McTaggart.
Elliott, IA sale upon void writ or precept
for The collection of assessment for street i'm
proveinenrs may be enjeined. Equity interferes in
Sen eass upn TO @ wape no es
mate for the cost of the improve
ment has been made valid precept
can issue Appellant could not give force to his
void precept by showing that the work was in
fact done in front of the appellee's lot. The
remedy for the enforcement of street assess
menIs is a summary statutory one, and the pro-
visions of the statute must be pursued. Judg-
ment affirmed.
PRACTICE-ERRoR IN INSTRUCTIONS.
1o,440 Allen G. Wells VS.. Henry Y. Morrison.
Howard G. G.
Bicknell, Con petition for rehearing. yer.
diet in accordance with the weight of the evil
dence and justice VIII not be set aside because
OF error in the instrue ions, bnJ where the error
embraces the controlling feature of the case.
and undoubtedly misled the jury, and was fol-
lowed by a verdict not IN accordance with the
weight of testimony or with Justice, the judg-
ment will be reversed. Petition overruled.
The following were also decided:
William j. Holiday VS.. William 0. Thomas.
Hancock G. G. Morris, C.-Affirned.
Nathan B. Hogg VS.. James NJ. Link. Laporte
c. C. Black, C.-Rehearing denied
Superior Court.
Room No. 1-Hon. Napoleon B. TAYLOR. Judge.
James L. Mooney VS.. Vinton Iron Works; suit
on note Judgment for S159.77.
Gray Bros, etc, VS.. Frey q Mag; suit on ac-
II tri,.l Ivy inrX