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red light at the time of the two whistles. It two short and distinct blasts of his steamseems clear enough to me that the Vander- whistle, which the pilot of the other steamer bilt's pilot violated the established rules for shall answer promptly by two similar blasts navigation in such cases; and, because of of his steam-whistle; and they shall pass to that violation, the vessel in his charge must the left or on the starboard side of each be deemed, as matter of law, to have contrib- other." Rule 3. "If, when steamers are aputed to the occurrence complained of. Ac-proaching each other, the pilot of either vescording to his statements, he was ignorant of sel fails to understand the course or intention what the distant light was, and he knew of the other, whether from signals being nothing of the other vessel's course; but, given or answered erroneously or from other supposing it was a tow, he laid his course causes, the pilot so in doubt shall immedisomewhat to the eastward, to pass by. Then ately signify the same by giving several short he heard the signal from her, of one whistle, and rapid blasts of the steam-whistle; and, to go to the right of each other; and, know- if the vessels shall have approached within ing of the approach of a steamer on his half a mile of each other, both shall be imcourse, he at first agreed to her pilot's signal mediately slowed to a speed barely sufficient by giving the appropriate reply; but in a few for steerage-way, until the proper signals seconds he gave the signal, by two whistles, are given, answered, and understood, or unfor each to go to the left of the other, and, til the vessels shall have passed each other." receiving an assent to that, at once hard- We must assume that, from the absence of ported his vessel, sheering her more sharply central range lights and the inability to see to the eastward. He says he could not at the colored lights on the Yosemite, the Vanfirst see the yacht's colored lights, and there- derbilt could not determine what she was, fore, and in the absence of her central range or what her course; and equally must we aslights, could not tell her course; but he did sume that to the Yosemite the Vanderbilt have the one whistle to guide him in the and her course were known by the lights she first place, and he did see her red or port carried. Therefore, when the pilot of the light when the two whistles were given, and yacht gave one blast of the whistle, he did so thus knew her port or left side was towards with all the knowledge possible in such cases, him, and that she was approaching him and was first in deciding upon the course obliquely. Now, what his duty was, under of passing to the right or the port side of the the circumstances, is made clear by reference other. Under rule 1, this decision, having to the rules and regulations for the govern- been assented to, determined a course for ment of pilots navigating rivers, etc., which both vessels. In subsequently deciding to were adopted by the board of supervising in- take the opposite course, that is, to go to the spectors, as authorized by the act of con- left or the starboard side of the other, the gress, "to provide for the better security of Vanderbilt's pilot took the risk of his judglife on board of vessels propelled in whole or ment being right, or better. He must have a part by steam, and for other purposes," ap-known that to the stranger vessel his position proved February 28, 1871, and the acts amendatory thereof. Those rules are controlling in all cases of navigation of steamvessels, and have the force and effect of statutes, where they do not conflict with any special rule, duly made by local authority, relative to inland or river navigation. Their violation should be chargeable as a fault; for obedience to them is not only necessary, but insures safety. We understand the defendant's counsel to concede the binding force of these rules. I will cite here two of those rules which are applicable, in my opinion, to the state of facts: Rule 1: "When steamers are approaching each otherhead and head,' or nearly so, it shall be the duty of each steamer to pass to the right or port side of the other; and the pilot of either steamer may be first in determining to pursue this course, and thereupon shall give, as a signal of his intention, one short and distinct blast of his steam-whistle, which the pilot of the other steamer shall answer promptly by a similar blast of his steam-whistle; and thereupon such steamers shall pass to the right or port side of each other. But if the course of such steamers is so far on the starboard of each other as not to be considered by pilots as meeting head and head,' or nearly so, the pilot so first deciding shall immediately give

and course were indicated by his vessel's
light, while he himself was, if he is to be be-
lieved, ignorant of the yacht's. Now, was
not his duty, under the circumstances, de-
fined unmistakably by the rules by which he
was to be governed? He could do one of two
things. He could, and, as I think, should,
have adhered to his agreement with the
yacht's master to go the right of each other.
Or, under rule 3, if he failed to understand
the course or intention of the yacht, "whether
from signals being given or answered erro-
neously, or from other causes," he could have
given several short and rapid blasts of the
whistle, and slowed down until the proper
signals were given or understood, or the ves-
sels had passed. Under the state of facts,
the Vanderbilt's pilot had no right to give
the two signals after he had assented to the
course indicated by one whistle, and when he
was as yet in the dark as to any other indi-
cation of the yacht's existence or course.
may well be that the yacht should not have
answered the two whistles, and thus assented
to the change in the course; but that cannot
affect the Vanderbilt's responsibility for the
change. The Vanderbilt, in subsequently
giving the two blasts of the whistle, thereby
notified the approaching vessel that she (the
Vanderbilt) could keep out of the way by

It

(130 Ind. 590) BARR et al. v. VAN ALSTINE. (Supreme Court of Indiana. Nov. 6, 1889.) MORTGAGES-REDEMPTION-RIGHTS OF WIDOW. 1. Under Rev. St. Ind. 1881, § 2491, which is widow one-third of the lands of which her husband was seised in fee during their marriage, and of lands in which he had an equitable interest at his death, she may redeem from a foreclosure, had in his life-time, to which she was not a party, of a mortgage given by him alone for the purchase price of land.

2. An action by the widow to redeem from such foreclosure is not, under Rev. St. Ind. § 294, limiting real actions, barred until 15 years after the death of the husband.

3. Demand and tender before action to redeem

in such case are not necessary.

4. The decree in such case should be for the

sale of the two-thirds to pay any balance of the mortgage debt found due the purchaser under the foreclosure, after deducting rents and profits from the death of the husband, but such purchaser cannot object to an erroneous decree for the sale of the widow's one-third.

going to the left, and would do so, if the the yacht was in fault; but under the third other would agree to it; and the yacht's as-rule, which we have quoted, if the pilot was senting blasts simply meant that it agreed to bewildered, and failed to understand the other that, the risk to be the Vanderbilt's. If the vessel's course or intention, he should have Vanderbilt's pilot had obeyed the rule of the signified to that effect by the repeated short road, as laid down by the statutes of the state blasts, and have slowed down, or stopped. and of the United States, and adhered to his The Vanderbilt's pilot forgot or disregarded agreement with the approaching vessel, and the rules, and his mistake must be regarded had kept to the right, either the collision would as having contributed to the occurrence. I not have happened, or, if it had happened, think the judgment and order denying a new the Vanderbilt would not have been in fault. trial should be reversed, and a new trial orIn the absence of the expected and usual sig-dered; costs to abide the event. nals, a pilot should not be governed by impressions. If, in the exercise of discretion, he departs from the rules in such cases, in the absence of any necessity, and a collision is enabled to occur, he does so at his peril, and at the risk of charging his vessel with a liability. If it is claimed that if the Vander-section 27 of the statute of descents, giving the bilt's pilot committed a mistake it was one in extremis, it should appear that his faulty maneuver was caused by the error of the other vessel. The Elizabeth Jones, 112 U. S. 514, 5 Sup. Ct. Rep. 468. But there was no such producing cause in this case; for the Vanderbilt's pilot says he could only make out the one high light before he heard the one whistle, and only saw the red light, which indicated her port side was towards him, about the time of the two whistles. The manner in which the yacht cut through the Vanderbilt's bow presents to my mind some evidence that the yacht was attempting to comply with the Vanderbilt's signal to pass to the left. The evidence shows that the yacht's bow struck the Vanderbilt forward of her starboard gangway, cut through, and came out about the middle of her port gangway. The Vanderbilt's course was at the time sharp to the eastward. If the yacht had kept on pointing to the eastward, with the object of passing to the right of the Vanderbilt, they would have met on oblique courses, and the yacht would have cut through the other vessel on a line which would have taken her to a point forward of the Vanderbilt's port gang-signed are: "(1) The court erred in overrulway. But it is evident, from the fact of the line of the cutting through terminating at a point in the middle of the port gangway, that the yacht's pilot had already ported his vessel's bow, and attempted to comply with the changed signal. In the case of The City of Hartford, 11 Blatchf. 72, after that vessel had blown one whistle, for each to go to the right, the approaching vessel, the Unit, blew two, for each to go to the left, and the City of Hartford assented to the changed course. Judge WOODRUFF in his opinion agreed with the court below, that she ought not to have done so; that she ought to have kept off, or stopped. He held that "the maneuver was fatal. In the most favorable view for the Unit, the approaching vessel, it was an error in which both concurred." He decided that "the conclusion seems inevitable that both were in fault."

It is suggested in the general term opinion that the pilot of the Vanderbilt was bewildered. It may be. It is not disputed that

Appeal from circuit court, Allen county; A. A. CHAPIN, Judge.

J. W. Wilson and W. G. Colerick, for appellants.

BERKSHIRE, J. This was an action brought by the appellee against the appellants to redeem from a sheriff's sale. The cause was put at issue, and trial and final judgment rendered for the appellee. The errors as

ing the appellants' demurrer to the first and
second paragraphs of the appellee's com-
plaint, and each of them. (2) The court
erred in sustaining the appellee's demurrer to
the second, fourth, and fifth paragraphs of
appellants' answer, and each of them. (3)
The court erred in its conclusions of law on
the special findings of facts. (4) The court
erred in overruling the appellants' motion
to state other and different conclusions of
law on the special findings of facts. (5)
The court erred in overruling the appellants'
motion for a judgment in their favor on the
special findings of facts. (6) The court erred
in overruling the appellants' motion to dis-
miss the plaintiff's case after the announce-
ment by the court of what facts were fornd
by the evidence adduced on the trial.
The court erred in rendering judgment in
favor of the appellee on the special findings
of facts." We understand from the record
that on the 22d day of February, 1864, one
George W. Ewing, then in life, was the

17)

99

owner in fee-simple of lots 5, 6, and 7, in | viving wife is entitled, except as in section 17 Ewing's subdivision of lot 65, in the original excepted, to one-third of all the real estate of plat of the city of Fort Wayne, Ind., and on which her husband may have been seised in that day conveyed the same by warranty deed fee-simple at any time during the marriage, to one William Van Alstine for the sum of and in the conveyance of which she may not $1,834, and took his notes for the purchase have joined in due form of law, and also of money, secured by a mortgage; that the all lands in which her husband had an equitaterms of said mortgage were such that the ble interest at the time of his death: provided, notes all became due February 23, 1865; that that if the husband shall have left a will the said George W. Ewing died testate prior the wife may elect to take under the will into November 1, 1866; that on that day his stead of this or the foregoing provisions. executor brought suit in the Allen circuit Under this statutory provision, one-third of court to foreclose the mortgage, and on the the said real estate passed to the appellee 12th day of January, 1867, obtained a judg- by virtue of her marital rights, subject to the ment for $2,021.75, and a decree of foreclos- said mortgage indebtedness. May v. Fletchure; that on the 13th day of March, in the er, 40 Ind. 475; Bowen v. Preston, 48 Ind. same year, an order of sale issued upon the 367; Brenner v. Quick, 88 Ind. 546. Not judgment and decree to the sheriff of Allen having been made a party to the action, she county, who, after advertising the mort- was not affected by the decree of foreclosure. gaged premises for sale, on the 13th day of May v. Fletcher, supra; Gordon v. Lee, 102 July in the same year, sold the same for the Ind. 125, 1 N. E. Rep. 290; Catterlin v. full amount of the judgment to the said ex- Armstrong, 101 Ind. 265; Wilt. Mortg. For. ecutor; that on the 4th day of September, 160. Until the death of the husband of the 1868, there having been no redemption from appellee she had no claim, legal or equitable, said sale, the said sheriff executed to said upon or to the land. Insurance Co. v. Newpurchaser a deed for said real estate; that man, ante, 428, (October 31, 1889,) and authoron the 17th day of March, 1873, the said ex-ities cited. Had her husband survived her, ecutor sold and conveyed said real estate to the male appellant for the sum of $4,500, who then and there paid the purchase-price; that he, at said date, entered into the possession of said lots, and has been in possession since his purchase, claiming to be the owner: that the appellee was the wife of the said William Van Alstine when he made said purchase, and continued to be his first and only wife until his decease, on the 10th day of September, 1873, and resided during all the said time in the said city of Fort Wayne; that she did not join in said mortgage, nor was she a party to said action of foreclosure, nor has she ever made any conveyance of her interest in said lots, either as the wife or widow of her said husband; that when her husband died he left an estate worth less than $10,000; that the said appellant, when he made his purchase, had no knowledge that the appellee claimed any interest in said real estate; that the appellee made no demand of the appellant before bringing the action, nor did she, or any one for her, tender or pay to the appellant all or any part of said mortgage debt before instituting this action; that this action was commenced November 8, 1886; that the said executor paid taxes upon said real estate from the time he received his deed until he conveyed to the said appellant, who has paid the taxes since, together with certain street assessments.

Under the facts, as stated, the appellee had. the right to redeem from said sale upon the death of her husband. May v. Fletcher, 40 Ind. 575. This case, overrules the case of Fletcher v. Holmes, 32 Ind. 497, and has since been followed by later decisions of this court. Wilt. Mortg. For. 161, and cases cited; Bralley v. Snyder, 14 Ill. 263. Section 2491, Rev. St. 1881, being section 27 of the statute of descents, reads thus: "A sur

the purchaser at the sheriff's sale would have held the title to said real estate free from any right of redemption. Paulus v. Latta, 93 Ind. 34; McCormack v. Hunter, 50 Ind. 186; Grissom v. Moore, 106 Ind. 296, 6 N. E. Rep. 629. So soon as the husband of the appellee died, by virtue of the said statute the title to one-third of the said real estate vested in her, subject to the said mortgage indebtedness, and then, and not until then, her right to redeem came into existence. Brenner v. Quick, supra; Wilt. Mortg. For. 162.

As there is no other section of the statute of limitations applicable to actions to redeem real estate, section 294, Rev. St. 1881, governs, and the appellee had 15 years from the death of her husband in which to bring her action. As the action was commenced within 15 years, it was not barred by the statute of limitations.

The answer which is pleaded as an estoppel in pais is entirely barren of such facts as work a verbal estoppel. It is so clearly bad that we do not care to set it out in this opinion, or to refer to it more at length.

The appellee was not bound, as a condition precedent to the bringing of her action to redeem, to make a demand or a tender. Childs v. Childs, 10 Ohio St. 339; Bradley v. Snyder, supra; Clark v. Reyburn, 8 Wall. 321.

In the case under consideration, as against the appellee the appellant occupied the position of a mortgagee in possession. He was chargeable with the rents and profits from the date of the death of the husband of the appellee, and she was chargeable with the mortgage debt and interest thereon at 6 per cent. per annum, and likewise for taxes paid, together with the cost of improvement made by the appellant and his grantor. Hosford v. Johnson, 74 Ind. 479; Gage v. Brewster, 31 N. Y. 218; Wilt. Mortg. For. 191-199;

MITCHELL, J. The facts, briefly stated, are that William S. Woods and his wife, Martha A., joined in a mortgage conveying certain real estate owned by the former to secure certain debts of the husband. Woods subsequently died, leaving his widow and three children as his surviving heirs, and leaving the debts secured by the mortgage above mentioned unpaid. The administrators of his estate applied to the proper probate court for an order to sell the mortgaged real estate, for the purpose of making assets to pay the debts secured by the mortgage. The widow and chil

Johnson v. Harmon, 19 Iowa, 56; Buttonhole Co. v. Association, 61 Iowa, 464;1Bradley v. Snyder, supra. Proceeding upon this basis, the court should have made an adjustment, and whatever, if anything, was found due to the appellant, a decree should have been rendered for the sale of the two-thirds of the real estate held by him to pay the same, and, in case of a failure to realize a sum sufficient to pay the same, then for the sale of the appellee's one-third. Grable v. McCullogh, 27 Ind. 472; McCord v. Wright, 97 Ind. 34; Bunch v. Grave, 111 Ind. 351, 12 N. E. Rep. 514. In case nothing was found due on the mort-dren were made parties to the proceeding. gage debt to the appellant, then the court should have so decreed, and that the appellee was the owner of one undivided one-third of said real estate, free from incumbrance, and quieted her title; but on the other land, if the court found that there was anything due on the mortgage debt, the amount should have been adjudged, and a decree rendered for the sale of the whole of said real estate, but that the two-thirds held by the appellant be first sold, and, if sold for a sum sufficient, then that the appellee's one-third be protected. There is nothing in the conclusion to which we have arrived in conflict with Bunch v. Grave, supra. That case and the one under consideration proceeded on different theories and rest on different principles. We adhere to the conclusion reached in that case. The decree which was rendered in this case was for the redemption and sale of the appellee's one-therefore void. That this position is well third of the said real estate, and does not disturb the two-thirds held by the appellant. It is erroneous, but the error is not one of which the appellant can complain, because he is not injured, but benefited, thereby. If the appellee was here complaining of the judgment of the court, we would probably be required to reverse the judgment, but, as she is not, the judgment must be affirmed. Judgment affirmed, with costs. (121 Ind. 56)

The former appeared, and in writing waived the publication and posting of notice required by the statute,1 and also assented to the sale of the whole of the real estate mentioned in the petition, upon an alleged agreement that two-thirds of the proceeds should be applied to the payment of the mortgage debt, and onethird thereof paid to her. The land was sold in pursuance of an order of the probate court, and the administrators, in pursuance of the sale, made a conveyance of the whole of the several tracts sold to the purchaser, who went into possession under his deed. Subsequently the widow died, and this suit was instituted by her heirs or devisees, who claim the undivided one-third of the land which descended to their mother; their insistence here being that the order of sale made by the probate court was beyond its jurisdiction, and

taken, is settled upon authority; and that the right of the heirs to assert title to her undivided one-third of the land is not affected by the invalid order of sale is also established, unless their ancestor, through whom they claim, received the purchase money, or in some way constituted the administrators who made the conveyance her agents, so that she became bound by their acts, or estopped to assert her title. Pepper v. Zahnsinger, 94 Ind. 88, and cases cited. Merely signing a paper, in which she manifested her assent to an order for the sale of the whole of the several tracts, including her interest, would not

ROBERTS v. LINDLEY et al. (Supreme Court of Indiana. Nov. 7, 1889.) ADMINISTRATOR'S SALES CONSENT OF WIDOW-confer jurisdiction over the subject-matter on

ESTOPPEL.

1. An administrator's sale of land of a decedent to pay debts, in pursuance of an order of the probate court, on the mere written consent of the widow, by which she waives the publication and posting of notice required by Rev. St. Ind. § 2355, is invalid, but she and her heirs are estopped to claim title to her interest, if she received and retained her share of the price.

2. Where, on appeal from a judgment for plaintiffs in an action by the widow's heirs for her interest, it does not appear whether or not the widow received and retained her share of the price, a new

trial will be ordered.

Appeal from circuit court, Hancock county M. E. FORKNER, Judge.

Action by Olive F. Lindley and others against John Roberts. Judgment for plaintiffs, and defendant appeals.

New & Jones and L. H. Reynolds, for appellant. Marsh & Cook, for appellees.

116 N. W. 527.

the court, nor would that, without more, constitute the administrators her agents to convey her title. If, however, she received and retained what was supposed to be her share of the purchase price, after having assented to the order and sale, she, as well as those who stand in her right, would be estopped.

Upon request the court made what purports to be a special finding of facts. This special finding, although it covers very many pages, and embraces most of the evidence in the case, cannot be regarded as in any proper sense a special finding. While the application to sell, the proceedings, order, and report of sale, are all set out at full length in the special finding, these can only be regarded as evidence. It is not found as a fact that

the land was ever sold by the administrators,

Rev. St. Ind. § 2355.

nor does it appear, except by the reports made | veyances the appellant only acquired title to to the probate court, which should have no the dry land; that the meandered line around place whatever in the special finding, who the border of such lake constitutes the boundpurchased the land, or whether or not the ary line of appellant's land; and, acting uppurchase money was ever paid, or whether on this theory, the appellee, in the year 1884, the widow ever received any part of it, if procured a survey of the lake within the meany was paid. The facts found, after elim- andered line to be made by the general govinating the evidence, are wholly insufficient ernment, and platted as lots 5 and 6, and such to support any judgment; and, although survey and plat were made by the commisthe motion for a venire de novo is informal, sioner of the general land-office, who is ex ofwe should not hesitate, without any motion, ficio surveyor general of Indiana, and the to order a new trial, to the end that justice same was adopted and approved by the secremight be done. Buchanan v. Milligan, 108 tary of the interior; and also procured a patInd. 433, 9 N. E. Rep. 385; Cottrell v. Nixon, ent to be issued by the United States to the 109 Ind. 378, 10 N. E. Rep. 122. The judg- state of Indiana for the same March 17, 1885. ment is reversed, with costs, with directions to the court below to sustain the appellant's motion for a venire de novo.

(121 Ind. 51)

STONER v. RICE, State Auditor. (Supreme Court of Indiana. Nov. 8, 1889.) RIPARIAN RIGHTS-NON-NAVIGABLE LAKE-ACTION

AGAINST STATE.

1. Where an inland non-navigable lake covers a portion of a section of land, and the government survey designates the dry land in each subdivision as a fractional subdivision or lot, the purchaser from the government of such lots acquires title to all that portion of the bed of the lake included in the whole subdivision.

2. Where one claiming land under patent from the United States brings his action to determine title against a lessee of the state, the state auditor, who appears and answers, cannot object that the state cannot be sued by a citizen thereof.

Appeal from circuit court, La Porte county; DANIEL NOYES, Judge.

John H. Bradley and L. A. Cole, for appellant. F. T. Hord, Atty. Gen., for appel

The conclusion we have arrived at is that the owners of lands bordering on non-navigable inland lakes, such as the one described in this case, when the subdivisions of the land are surveyed by running a meander line between the dry land and the water to ascertain the number of acres of dry land, and designating such subdivision as a fractional quarter or a lot, giving the number of acres of dry land, takes the title to all the land contained within the subdivision; that is to say, he takes as a riparian owner, and his title includes and he owns the land beneath the lake far enough beyond the meandered line and water's edge to make out the full subdivision in which his land is so situated. As in this case the N. W. of the N. E. is surveyed and designated as "Lot 1," the purchaser of lot 1 acquires title to all the land situate within the boundary line of the said N. W. of the N. E. of said section, as the same is platted by the government, and by the survey all the land situate in the N. of the N. W. of said section was designated as "Lot 3," and the purchaser of lot 3 acOLDS, J. The question in this case in- quired title to all the land in said N. of volves the title to the bed of a fresh-water said N. W. of said section, whether a part lake situated in the N. of section 8, in town-of it be covered with water and constitute a ship 36 N., of range 1 W., in La Porte coun- part of an inland lake, or part of it be swamp; ty. This question arises on the demurrer to and the same is true in regard to the S. of the appellee's answer to the complaint. The the N. W., designated as "Lot 4." The lake is not navigable. The principal part of survey included all the land, and when a porthe lake is situated in the N. W. of said tion of a subdivision was covered with water section, a small portion extending into the such portion was meandered to determine the N. W. of the N. E. of said section. There amount of dry land, and the meandered line are 39.72 acres of dry land situate in the S. does not constitute a boundary line. It is of the N. W. of said section, lying to the contended that the riparian owner bordering west and south of said lake, and designated on a non-navigable lake, like a river, takes by the government survey as "Lot 4," there to the thread or center of the lake. This are 51.33 acres of dry land situate in the N. rule is impracticable when applied to lakes. of the N. W. of said section, lying to the Suppose the lake to be round, or nearly so, north and west of said lake, and designated with riparian owners, as there would be, on by the government survey as "Lot 3;" and the north, south, east, and west of it, this there are 34.45 acres of dry land in the N. W. rule could not be applied; while the rule we of the N. E. of said section, lying east of have laid down is practicable, and we think said lake, designated by the government sur-the proper rule to be applied in cases of this vey as "Lot 1."

lee.

The appellant owns these character. To hold that the meandered line three lots, viz., lots 1, 3, and 4, deriving his constitutes the boundary would be against title by mesne conveyances from the United the great weight of authority. Indeed, the States prior to 1884, and by virtue of such authorities are almost unanimous against conveyances and ownership claims to own such a doctrine. The weight of recent auand have the title to the land beneath the thorities is to the effect that the owner of water of the lake. On the contrary, it is the bank owns to the center of the body of contended by the appellee that by such con- non-navigable water, at least, whether it be

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