The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-05-26
THE COURT RECORD.
Supreme Court-sray s5, 1885.


No. 1910. Fountain County Coal and Mining
Company VS.. Levi Beckleheimer ct al. Fount-
ain C. C. Affirmed. Elliott, IA deed recited:
This indenture witnesseth that Isaiah FERGUSON
III consideration of natural love and affection
which he bears to his daughter, Nancy West
and her present heirs and the sum of S., the
receipt whereof is hereby acknowledged, does
give, grant and convey to the said Nancy West
and her present heirs, forever, the following
real estate. Description. To have and to
hold the same to the said Nency West and her
present heirs forever the grantor, his heirs
and assigns eovenanting with the grantee. her
present heirs and assigns. that the title so con-
veyed is free, clear and unincumbered." Held:
a. That the deed was not within the rule In
Shelley case, and Nancy West did not take a
fee ~ That the words present heirs were
words descrptio personarum. ana meant heirs
apparent. 81 That Nancy West did not take
an estate tail a. That Nancy and her heirs
apparent take an estate in common.
No. 1908. John Dawson VS.. Ebert FL. Shirk
ct al Howard G.. c. Affirmed. Mitchell, c.
1.-The code, Section 565, provides that the court
shall render proper judgment on the general or
special findings of the jury. If a special finding
contain data from which it clearly appears that
the amount assessed by the jury is the re-
suit of an error or grows out of some omission,
the proper Judgment to be rendered by the court
would be the amount which correct computa
ton made from the data furnished would indi
cate. The facts found must be irreconcilably
inconsistent with the amount assessed to jus
tify the court il disregarding the assessment.
No 1923 Wiley Lucas vs. Elhu Hawkins,
sheriff Hamilton G. c. Affirmed. Niblack, j.
Where sheriffs return to writ of habeas
corpus shows that the petitioner had been con-
victed under charge of bastardy, before jus
tIce, that he had escaped, that during his alb
sence judgment had been rendered against him
by the Circuit Court, the regularity of the l1dg
ment and the jurisdiction of the court will be
presumed, although the return does not afirma
lively show that the justice pursuant to Section
9I9, H. S. 1881 had transmitted a transcript of
the proceedings before him and the other papers
to the clerks office, and that there was "a trial
and finding against him in the Justices court,
upon which the judgment set out might have
been properly rendered. (2) Section $50 au-
thorizes the Judgment above stated Peterson
VS.. Pressly, 60 Ind, "a criticsed)
No. 1913. Clarissa Harbaugh ct al. VS.. VIM.
Albertson. Hamilton G. G. Reversed. Howk, j.
--Appellees executed repevin bond before a
justice and obtained the goods sought. In an
action on the bond ne set up that the justice and
he were related by blood. Held that as he had
voluntarily submitted to the Justices jurisdiction
and the Justice having had jurisdiction over the
subject-natter of the action, that the answer
insufficient
No 1856. Edwin L. Furnas VS.. Henry Fri
day. Porter c. G. Reversed. Elliott. J.-I)
When fraud is claimed facts showing it should
be alleged. (2) When the facts indicate an
honest purpose, neither recklessness nor care
leSsness. there is no fraud.
No. 1912. John R6tach VS. John w Nc
Carly. Marion S. c. Affirmed. Mitchell, j.
Action for damages for breach of contract. At
hrmed on the evidence.
No. 1909 VIM. Rome vs. Francis B. Pea
body. Starke G. G. Reversed Howk, J.--(L)
complaint seeking to enjoin the county auditor
from making and the purchaser from receiv-
ing tax deed, on the ground that the sale was
aprlvate one, without notice, etc, but which
fails to aver that plaintiff had rendered the
amount of delinquent taxes to the purchaser is
bad. e. When judgment has been rendered
upon a complaint of two or more paragraphs
and one is clearly bad, but has been held good
on demurrer, the judgment will be reversed un
less it appears afirmatively by record that the
judgment rests solely on the good paragraph.
No. lO605. Alexander Gordon VS. Mary e.
Lee. Ekhart G. G. Affirmed. Niblack, j.
Appellant held senior mortgage, and during
the pending of his proceedings to foreclose it he
bought the junior mortgage Without seeking
to foreclose the Junior mortgage, he suffered
the premises to pass into the hands of stran-
ger under the foreclosure sale. Held: That he
was estopped to redeem under his junior mort
gage after the statutory year had expired.
No. l1767. Monroe Mayer, ct al, VS.. Isaac
Brand Tippecanoe S. G.. Reversed. collars,
J.-Suit on note executed by appellants jointly.
Answer by A. that the note was executed with
out any consideration as to him; by b. that the
note was without consideration. The rule is
That if separate answer by one of several de-
PENDANTS goes to the merits of the case it will
enure to the benefit of all Held: Although the
answer of B. went to the merits of the case and
that A. would reap benefit, from it, yet the
answer of A. was separate and personal one
and he was entitled to defend by it so that sus,
tanning a demurrer to it error.
No. 12246. Samuel Hunter vs. the State
Warren G. G. Affirmed collars, jim crim-
nal prosecutions bills of exceptions must be filed
at the time of the trial or within such time as
the court may then allow. (2) Under Section
1925, r. S. 1881, an affidavit charging person
with having sold liquor on Sunday NAV be
sworn to- before notary public.