The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-10-29
Suprene Court.


The following decisions were rendered Oct. %;
No. 1904 Howard Foltz VS.. Edwin A. West
ct al. Marion S. G. Affirmed. Mitchell, q. j.
-Q.) The assignee of a Judgment takes no rights
greater than those held by his assignor e.
The general lien of judgment creditor upon
the lands of his debtor is subject to all equities
which existed against such lands in favor of
third persons at the time of the recovery of the
Judgment. g. Courts of chancery will SO con-
troll the legal lien of the judgment to restrict
it to the actual interest of the judgment debtor
in the property, so as to protect the rights of
those VINO have prior equitable interest
in such property or its proceeds. "a. A will pro-
vided that all of the testators property, real and
personal, should go to the widow during her nat
ural life, and at her death to the children IN
equal shares; provided, that until the youngest
child reac he'd majority the others should have
no power to sell the property, and that none of
the realty be sold unless in case of strict neces-
sity. The widow advanced out of the personally
various sums to the sons under an oral agree
ment, mutually entered into between the mother
and sons. to the effect that anaccount be kept of
the moneys, and in the final distribution the
sums should be charged against his share. After
the agreement and distribution Hereunder. the
mother resigned as executrlx and an admins
traitor de bonis non was appointed Three years
later he reported and was discharged. The
mother and sons signed writing attached to the
report ratifying the report Suit for parti-
ton and petition that the Announcements
be taken into account against the
sons Held: ~ That it would be
presumed nothing appearing to the contrary,
that the youn gest child had reached maturity
before the agreement and distribution were
made (2.) That the sums advanced would
be treated as ARRANGEMENTS in equity, and that
there was not thereby created either mortgage
by parol or parol trust on the land of each son.
H.. That the widow could surrender her rights
to the personally, and that the agreement sub
stantially accomplished the intention of the
testator. "a. That the agreement need not be
in writing to be equitably enforced. (5) That
If the agreement was void at the time it was
made 1T has been far executed as that the
personality was distributed under it, and having
been ratified, BENEFICIARY is not in position to
interpose the statute of frauds. (5. In such
case, where the land of one son was sold at
sheriffs sale, his wife would take onethird in
terest under the statute.
l2035 Martin Hughes ct al. vs.. The State
Fayette c. G. Reversed. Niblack, i'll
Where prosecution for malicious trespass is
based upon injury to land, the title to the land
should be shown to be in prosecuting witness.
(2) civil action for trespass may be main
tanned in class of for the purpose of test
ing and settling question Of title. but charge
Of malicious trespass cannot rightfully be prose-
cuted for such purpose, since however con-
elusive the evidence OF title in the prosecuting
witness may he. the defendant may, nevertheless
be acquitted on proof of bona fde claim of title
and the absence of malicious intent.
12035 John Botherwel vs. Frank M. Mii-
kin. Morgan G. G. Affirmed. Elliott, J.-I)
The statute authorizing the levyng of taxes for
constructing gravel road is constitutional. e.
Such taxes may be collected by the sale of
property. 81 Where the sale does not convey
title the purchaser secures lien for taxes
paid, together with statutory penalty. A. A
party must make a tender of the amount due
the purchaser before he can have relief, and the
sum is capable of exact computation, and such
must be made. That he rendered the purchaser
court to determine
1897 Moses Bradford vs. School Town of
Marion. Grant c. c. Certioriari granted.
1850. James w. Anderson VS.. James G.
Endcott Decatur G. c. Motion to retax costs sus-
tanned.
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