The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-03-07
The Court Record.
SUI 1A4z11L SOO NJ 1IHsCLD1O4Vos
Hon. J. A. 4. Mitchell. Chief-justice.

Hon. j. A. d. Mitchell, Chief-justice
1868. Morgan j. Quick administrator ETC. .
hrmed Mitchell. G. J.-VVhen In q suit q
note a counter-cairn is filed setting up that the
note was for balance OF purchase money on land,
and that prior to such purchase railroad had,
by certain condemnation proceedings under the
laws of the State, located it's right OF way over
strip of the ground purchased. it shows that
the railroad acquired easement under the
statute The existence of al easement or right
of way of a railroad which excludes the owner
from the beneficial use and enjoyment of the
land affected thereby. constitutes such in
cumbrance as will support action even
though the grantee knew of it's existence at the
time he received the conveyance There was
an incun brance, ana the counter-claim was sufi-
cient.
1907. Benjamin r. Blair VS. Julietta Smith
ct al. Dekalb =. @ Reversed. Elliott J.-Me-
morAndum BY Nblack j. Norman Smith was
the debtor of appellant In theSsum of 81. 0OO
for which Judgment recovered Executions
were returned properly found. Prior to the
time the judgment rendered Smiths wife
owned eighty acres of land, and part OF the
purchase money she agreed TO pay liens on the
land amounting to the SUM of 81, 00G. This
sum her husband paid. although he had no prop
erty subject to execution, as his wife knew. He
paid the money with the fraudulent purpose of
cheating his creditors IN which his wife col
luded Since it paid she has sold the land
and has, as the complaint charges, possession of
the proceeds of the sale. and has 81, 900 above
the value of her interest IN her possession. When
the husband pursuant to the corrupt scheme in
vested 81, 900 IN the land he acquired as
against creditors but not as against the
wife an interest upon which equity
would fasten the lien of the Judgment, but the
lien did not dsplace the prior equity OF the wife.
Where the wife is guilty actor in the fraud
she cannot defeat the claim OF her husbands
creditors, although the creditors cannot destroy
her prior equities. The proceeds of the sale
in the hands of Mr. Smith In OF her in
terest in the land were held 0y her trustee
for the creditors of her husband. and she can
Re required to account to them such trustee
Property subject to execution may be followed
by creditors. although changed In kind into the
hands of one who occupies the position OF
fraudulent grantee. An affidavit in attachment
which does not show that ths property sought
to be reached was subject to execution il in
sufficient
l3Os3 Thomas p Hackstt VS.. the State for
usee of Jesse L. Martiudale commissioner etc
Fulton q. c. Affirmed. Niblaek, J.-Wheu a
complaint for drainage assessment shows some
notice. a collateral attack against the JUDGMENT
will not lie 2 Section 42T7, r. s..
means that the commissioner of drain
quire assessments TO be paid IN installments,
not exceeding 20 per cent. drring each calendar
month. and times dxed for the ayment of such
irstallments need not necessarily be exactly one
month apart
1861 Elihu W. PsmbersOn ct al. va
Jesse johnson; Grant g. G. Affirmed.
trial the ground of newly dis
covered evidence which states that the
as would be likely to know about the facts ia
said cause, and that she did aot know and did
not learn that said WITNESSES knew could
swear 10 said facts tstatedl until after the trial"
is too general and Indefinite show proper dill
gence to discover the evidenoe-
14267. Macy Warner State. Clark. @. G.
Affirmed. Eltott An indictment for murder
which charges al assault as part OF the crime of
murder charges only single offence. and is not
therefore bad for dnplieity. 2. An affidavit for
continuance which states conclusions and not
material facts is bad. A defendant cannot Sc
cure continuance upon TN affidavit which,
without stating that the Witnesses will testify
10 any specific facts. insanity. states that the
absent witnesses will testify that the accused
was OF unsound mind. The mAferalty of the
testimony is not shown. It is not sufficient to
state that absent witness wonid, II present.
testify that threats were made by the deceased