The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-04-28
= THE COURT RECORD.
Supreme Court-APril "a.
Hon. Geo. V. Howk, Chief Justice.

SALE OF ACKNOWLEDGEMENTS TO PAY LIENS
10472. Enos Harshnan VS.. Amos Heayilon. Gin
ton G. G.
Elliott J.-Appelsnt sued on a written contract
for the purchase of real estate alleging that appellee
had refused to pay the purchase money according to
the terms IN the contract Answer, that there were
certain judgments and mortgage liens on the land at
the time the contract was entered into. which appel
LIANT had agreed to pay and which exceeded the pur
chase money that appellant failed to pay one OF the
liens, under which the land sold and the title OF
both the parties dvested 1t being the duty of the
appellant under the contract pay off the lien and
having failed TO do he cannot recover the purchase
money for land which he unable to convey. Judg
ment affirmed
PROMISE TO PAY ANoTHER's DEBT-CoNsIDERA-
TIoN-sfAINTENANoE.
1928; John W. Smith Joseph F. Flack
Colerick, J.-Smith had contract for street i'm.
proyements and assigned to Hammops the estimates
therefor, he agreeing to pay for all materials used
The assignment of the estimates to Hammons
stitued valuable consideration for his promise to
pay for the materials and the promise could be en-
forced by one who had furnished materials for the
work. Us Ind, A; G9 i'd, 449 20 id, l24) The
answer averred that the material had entered
into contract with the bondsman of Smith that he
would prosecute his claim against Hammons, the
9ondsrnan agreeing to pay attorney fees and costs
If the material man should fail in his suit and if
Judgment was obtained and was not paid within thirty
days, the material man to assign it to the bonds
man, who would pay it in full Under this contract
the material man was the real party interested and
the agreement not void for maintenance because
the bondsman of Smith was Interested in enforcing
SO Ind, 1911 Judgment affirmed.
COUNTY Observation-Disclosures TERM-ELEC-
TION
l0975. Philo ]. Pharmater rel. Drake,
Franklin, O. AT the election in 1873, Mather was
elected commissioner of the first district of the county
for the term of three years, from October 1879
After serving nine months he resigned and appellant
was appointed to fill the Office until the next general
election At the general election i'll 1850 appellant
elected for said district and entered the duties
of the Office. In 1882 Smith elected and at
tempted to take his seat, but appellant claimed that
his own election in 1880 was for three years Held
Appellants term of Office closed after the general
election Of 1882 and for the unexpired term of
Mathers. Where there is vacancy in the Office of
commissioner, it is to be filled by appointment until
the next general election, when Some shall be
elected to ill the unexpired term. The vacancy Gre
aed is for the whole Of the unexpired term but the
appointment is expressly limited to the next general
election. (Sections 1913, r. S. See % Ind. 24S; 80
i'd SIT; "a i'd. 1860 The term of office being fixed by
statute the notices of the election could not affect it,
Appellant could not set up defense TO appellees
action to recover the office that another had received
agreaer number of votes at the election and that the
colateraly attack appellee certificate of election. (61
Ind 1872; % Kan, 259; McCrary, Elections. Sec
221i 25 H., 1885, 46 Wis. 56J Judgment affirmed
SUPREME CoURT-APRII. 25.
APPEALs-FAnURE TO NOTIFY co-DEFENDANT.
1O999. John Shultes VS.. Cyrus H. Keser Whit
ley G. @.
Best, C-Appellant asks that this case be rein
stated the ground that it was not submitted as to
James H. Harrison, one of the appellees But this
fact only furnishes an additional fo- The dis
and should have named Harrison an appellant
and notified him TO join in the appeal. R. s., sec
O3oi 80 Ind, $685. SS i'd, 1881 Motion to reinstate
overruled.
NEUTRALITY-SUSPICIOUS. CONSIDERATION.
10969.-Thos. B. Reeder VS.. Elias Ney. Henry C.
Franklin g. The giving of new note iu order to
get an extension of a loan is not a PAYMENT of the
debt but merely changing the evidence of the ndebt
edness which still remtns. But where the first note
IS secured by mortgage and when the new one is
and third party buys the property in good
faith. it is not a good answer to him that there
made by mistake. Such purchaser who has not
actual notice, has right to rely upon the record and
will be protected by it. Judgment reversed.
REcoRD-EvIDENCE-DUTY TO INSTRUCT IN
WRITING.
:, 1885,. Jonathan Broadway vs. Polly Waddel.
Elliott mo matter by whom the evidence is
taken down it is in the record if fully and accurately
embodied IN the bill of exceptions duly signed by the
judge and fled. The statute requiring to give gener
al instructions to the jury in writing, if properly
and the refusal to do so is not merely a
1928 Ind, 1856; 16 i'd $40; % i'd, 394; SO i'd 283;
SO i'd, $40; 6S i'd, 32s; 1O4 u s., 631; 81 Mo- 81;
50 ILL.,. $40 "a Mich, 407l The bill of exceptions
shows that the court at the time of reading the writ
ten instructions to the jury orally instructed them
upon the subject of nominal damages and as to the
form OF their verdict and that the appellant at the
time excepted thereto Judgment reversed.
GRANTEES ASSUMPTION OF Grantees DEBTS
PRACTICE.
-, 11155; Elizabeth Hamilton VS.. Henry BarnicklOw.
Franklin, C.-Where the purchaser of real estate
agrees, part of the consideration to pay the grant
or debts and support him during life the creditors of
the grantor may enforce their claims charge upon
the land and demand before suit is not necessary
The grantor is also entitled to have his support de-
q he 1aDd (Ex 81
Kelso, decided March %, 1884.) As to Lena
Barnicklow, she had dismissed her of action
Y, process upon the eross-complaints and
did not appear to them. She was not therefore, be-
fore the court and the finding and conclusions of law
as to her were erroneous. The judgment to her is
reversed and as to the other appellants affirmed.
CHARGE IN LAND DEvIsED-LIABILITY OF DE-
vIsEEs.
1883 Edwin S. Porter VS.. Samuel L. jackson ct
collars IA will provided that as a condition of
the acceptance OF the property devised the devsees
should support Eliza Andrews during her natural life
or widowhood. Such condition becomes an equit-
able charge upon the Land. as Ind 553; n i'd, |
437; 62 i'd, 1l6; Sc i'd, 244) The acceptance Of
the land also imposed personal obligation upon the
devisees to furnish the support and the BENEFICIARY
could enforce the obligation by suit and recover per-
sonal judgments. q Paige 421 60 Ind 11G So i'd,
l36; 70 n. Y, 1861 And such judgments are not
limited to the value of the land. Whore the land
was sold by commissioner in partition proceeding
and the proceeds of the sale in his hands the
charge on the land remained equitable charge on
the fund and the beneficiary could enforce the
charge thereon. 49 Ind. 446: IS i'd, Ga
The purchaser of the land at such sale who had no
actual notice of the charges thereon NAV have such
fund first exhausted for her support before the land is
resorted to and he is entitled to such decree as will
accomplish this either by compelling the devsees to
give bonds before drawing their shares of the fund to
its application to such purpose by the APP
poItment of a receiver to hold the fund. I'll Paige
334; 40 Ind $685. 50 Barb, 500; Story Eq. sec
1927; Const., 298.) The doctrine that there is no
warranty in judicial sale does not overthrow this
equitable doctrine g Bikf,, 293i 2 Ind L. Mag,
116.) Judgment reversed.
SUPREME OOURT-APRII4 26.
NEUTRALITY-SUSPICIOUS..
11107. George w. New vs. John c. New Haml
ton c. G.
Elliott Ut has long been the rule that where the