The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-06-17
THE COURT RECORD.
supreme Court-June 16, 1885.


No. 1902 Simeon Flint ct al vs. James M.
Cook Hancock C. c. Reversed Mitchell,
C. J.-Suit on q contract for a wind mill The
contract provided that if the mill did not work
well for sixty days after erected the purchaser
was to notify the seller and give him ninety days
to remedy the defect, and then if it did not work
we'll he was to remove it ana release the pur
chaser from the contract. On the reverse side of
the contract there was written, THE condition
of this sale is that ID. I'll. Goble erects the mill,
and after ninety days if the mill suits James M.
Cook he agrees to settle the conditions
named in that written ORDER The whole OF the
contract must be construed together. and when
so construed it means that if the mill should not
suit the purchaser, on account OF any defect or
failure. to perform which the seller failed, upon
notice. to remedy, then he was to be relieved
from keeping it.
No 117S8. Martin Y: Marsh VS.. Lemuel III.
Thompson. Marshall G. G. Affirmed. Niblack,
J.-Where deed is made and accepted, and
possession taken under it, want of title will not
enable the purchaser to resist the payment of
the purchase money, recover more than
nominal damages on his covenants while ne re-
talns the deed and possession, and has been
subjected to no inconvenience or expense on ac-
count OF the defect of title. Generally, the pur-
chaser of land not fully paid. for bears to the
vendor the same relation as that between land
lord and tenant SO far as estoppel is involved.
No. 1860. Frederick Vandervook vs. Lyman
r. Williams Steuben G. c. Affirmed. Howk
J.-Section 64l6 r. S. 1881, authorizes the
county auditor to place on the tax duplicate
omitted taxable property, but there is no statu-
tory authority for a board of commissioners to
enter into a contract with such auditor agreeing
to pay him so per cent. of taxes collected. But
one whose property is so placed on the duplicate
by an auditor under void contract has no cause
of action unless he shows that he did not own
the omitted property, that it was not lawfully
subject to taxation, and that the valuation of
such property by the county auditor was unjust
and excessive
No 1172L James r. Bodkin ct AL VS. Adolphus
E. Merit. Switzerland G. c. Affirmed Elliott
I'LL The payment of debt by purchaser
at an invalid tax sale subrogates the purchaser
to the rights of the creditor. The invalidity of
the sale does not destroy the right of subroga-
ton. t2.) A purchaser at sheriff's sale is not a
volunteer. H.. Facts, not epithets, are neces-
sary to plead fraud. a. Fraud without dam
age gives of action. (5) Judgment
appointing receiver cannot be attacked in an
answer to complaint in separate action pray
ing for the enforcement of decree of fore
closure.
No. 11414. Robert Scott VS.. State ex rel
Alice D. Hale. Wabash G C. Affirmed. FOL
lars, J.-In bastardy proceedings the trial proper
ends with the finding that the defendant is the
father of the child, and that hence no question
will be raised upon ruling in the proceeding
subsequent to such finding by assigning such
ruling as the cause for a new trial. u An Of
fer by the defendant that he had no property to
pay the amount found is not so connected with
the trial proper as that ruling upon it will be
raised by motion for a new trial
No. 1928. Walter L. Fosdyke vs. John T.
Nixon. Fountain c. c. Motion to dismiss over
ruled.
No. 1853. Abijah F. Henry VS.. Samuel Gil
liland. Montgomery c. G. Motion to dismiss
oyerruled.
No 1928. Western Union Telegraph Compa-
ny vs. George A. Yopst Cass c. c. Certiorari
issued