The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-06-10
THE COURT RECORD.
Supreme Court-June 8, 1885.

Supreme Court-June 8, 1885.
POINTS OF DECISIONS.
No. 1913. State ex rel Frank M. Howard,
prosecuting attorney, VS.. Charlottesville d Oar
lington Turnpike Company. Montgomery G. G.
Affirmed Howk. J.-Appellee, a turnpike com
pany. was organized and Incorporated in 1865,
and it built seven miles of road at an expense of
So. 900. In 1865 it attempted to consolidate
with another company. the boards of directors
and stockholders agreeing The consolidated
company elected new officers and carried on the
business of both companies In 1873 this organ
ization attempted to consolidate with another
company, the old certificates of stock were can
celed, new ones issued, a new board
elected under new name. In 1873
the Supreme Court decided that the consolida-
ton illegal, and in 1882 the companies
fell apart and took up their old franchises
From 1865 to 1882 appellee did not carry on its
business under its incorporation. Relator insists
that it voluntarily abandoned its property to a
stranger, and as it has not exercised its privi-
leges for sixteen years. therefore it has forfeited
its franchises. Thelaw encourages gravel roads,
and will not exclude them from their franchises
except for weighty reasons The facts do not
show surrender intention to surrender
Appellee expended money and operated its road
for year before this suit was brought without
objection from the State There is no forfeiture
under the facts.
No. 1880. John NJ Birk ct al vs. James
Abbott. Marion S. c. Affirmed. Mitchell, G.
j. Elliott, j., dissents.-The facts briefly are
that a judgment was recovered against one
Church, and became lien on land which he
afterwards conveyed the grantee, assuming the
incumbrance. Other conveyances of the land
were made, when one Kelly, a grantee, mort
gagged 1T, no assumption of the lien appearing in
his deed to one Abbott to secure ST. 900. Kelly
sold to one Witt, who assumed the judgment
lien. After the conveyance Witt discovered the
Abbott mortgage The had constructive notice.,
and, instead of paying off the Judgment lien, he
purchased and took an assignment of the certifi-
Gates of sale on the one and permitted the land
to go to sale on the other Subsequently he OBJ
tanned sberiff's deed on both, doing this to pro
tect his title Ordinarily any person may acquire
title to land through sherffs sale, but there
may be cases in which the purchaser
from his relation to the land sold or to the
judgment upon which the sale is made is pre-
cluded from acquiring title under such judgment
or sale. When the complete legal title is already
in the purchaser another title obtained through
if it appears that the title formerly held
and that acquired by the sale held in
the same right, with no intervening title
in a third person. If the title so obtained was
procured to cut off the intervening title it will
be kept foot or merged, depending on
the relation in which the purchaser
stood to the judgment sale on which the title
is predicated. If the purchaser is primarily liza
BILE to pay the incumbrance on account of which
the sale was made, he cannot build up an addi-
purchaser of real estate, as part of the consider
ton. by express contract agrees that he will pay
membranes on the land, he thereby comes
under personal obligation to pay them. Thence
him, he is the principal debtor, and
they stand in the relation of sureties
to him and he could not thereafter defeat in
cumbrances between his title and other liens
which he had agreed to pay. The liability of a
grantee who assumes prior membranes de-
and pntI ha lin
bility of his grantor. Subrogation takes place
only when he has performed the obligations of
another, or paid his own debts, the burden of
which had been assumed for a valuable consid-
GRAFTON by another, or when he has paid incurn-
brances for the projection of his title, the pay
ment of which he has not assumed by contract,
No. $500 Vincent A. Quarl VS.. Oliver HI. p.
Albeit. Marion S. G. Affirmed. Elliott IA
personal Judgment is which binds the de-
PENDANT, while Judgment which operates on
in rem. The process of courts may reach and
seize property within their jurisdiction. Prop
erty of non resident defendant within a courts
jurisdiction may be seized upon process issued
upon constructive notice as publication. Where
property, such as stock in company, is trans
terred to defraud creditors, the rights of the
parties in the property be tried upon construct
i've notice. Where jurisdiction once attaches,
1t extends over the whole case and the
court will determine all questions necessary to
be adjudged. The authority to determine
whether property is liable to be seized under
attachment confers jurisdiction to determine
the amount of the Indebtedness. Where there is
some notice, although defective, the Judgment is
not void. If there is notice. although irregular
and defective, there is jurisdiction. The rule
applies to summons and publication. The
fraudulent transfer of capital stock of corpora
ton may be set aside by creditor against the
debtor and assignee in equity Property fraudu-
lently conveyed can be attached.
No 1208l. Lewis w. Hasselman ct al VS..
Joseph Carroll ct al Hamilton c. y. Rehear-
ing asked.
No. 10567. George w. Stockwel VS.. State ex
rel johnson. Gibson c. C. Rehearing denied.