Attorney General v. Brown, 1 Wis. 513; Haley v. Clark, 26 Ala. 439. This is, indeed, the principle asserted in Butler v. State, supra, where it was held that the legislature could not confer upon the courts the authority to pardon or reprieve persons convicted of crime, as that power was conferred upon the governor by the constitution of the state.

It is a rudimentary principle, acted upon again and again, that, when it is ascertained that there is no jurisdiction, courts will go no further. It would not only be a vain and fruitless thing to assume to decide a question where there is no jurisdiction, but it would be a mischievous thing, because it would give an appearance of authority to that which is utterly destitute of force. Such a decision would be the merest shadow of authority, binding nobody. People v. Corwin, 68 N. Y. 403, see page 411; Weeden v. Town of Richmond, 9 R. I. 131. It is laid up among the earliest principles of the law that a decision where there is no jurisdiction is absolutely and incurably void. This principle frequently finds expression, although not always accurately or elegantly, in the statement, so often found in the books, that "such a judgment is coram non judice and void." But one result can here be reached either on principle or authority; and that is that the courts have no jurisdiction to entertain this suit.

Judgment affirmed.

(109 Ind. 472)

ROOTS v. BECK and others.

(Supreme Court of Indiana. January 5, 1887.)

1. APPEAL-INSTRUCTIONS-CONSTRUED AS A WHOLE.

Instructions should be taken together as a complete whole, and if, when so con strued, they state the law of the case correctly, there should be no reversal because of an instruction that, standing alone, might seem inaccurate.

2. STATUTE OF LIMITATIONS-COLOR OF TITLE-ADVERSE POSSESSION.

An open, notorious, exclusive, and uninterrupted adverse possession of land for the period of 20 years confers a complete title on the person so occupying, no matter whether the possession has been under color of title or not; and such title is equally available as a defense, or to recover a possession lost after it had fully matured.1

Appeal from circuit court, Fayette county.

Claypool & Claypool and Florea & Florea, for appellant. H. C. Fox, for appellees.

MITCHELL, J. The appellant's argument for a reversal of the judgment below relates exclusively to the propriety of certain instructions given by the court at the trial. The action was by Abraham B. Conwell against Francis M. Roots, the first paragraph of the complaint being in ejectment, to recover the possession of certain described real estate; the second was to quiet the title to the same land; while a third paragraph was trespass, to recover damages for alleged injuries to the land in dispute. The defendant below answered specially, to the first paragraph of complaint, that he was the owner and in possession of part of the real estate described, and that as to the residue he disclaimed any ownership or possession. To the second and third paragraphs the general issue was pleaded. The plaintiff closed the issue by replying a general denial to the defendant's special answer to the first paragraph of the complaint.

Having stated the issues substantially as above, the court, in its fifth instruction, told the jury that the plaintiff having, by his reply, denied the mat

1As to the effect of adverse possession during the period prescribed by the statute of limitations, and what occupation of land is sufficient to set the statute running, see Johnson v. Conant, (N. H.) 7 Atl. Rep. 116; Whitford v. Drexel, (Ill.) 9 N. E. Rep. 268; Richmond Iron-works v. Wadhams, (Mass.) 9 N. E. Rep. 1, and note; Jaques v. Lester, (Ill.) 8 N. E. Rep. 795, and note; Burns v. Headrick, (Tenn.) 2 S. W. Rep. 259. *Rehearing denied.

ters set up in the first paragraph of the defendant's answer, the defendant was thereby put upon the proof of the affirmative matter set up in such answer. This instruction is assailed as erroneous, in that, as the appellant contends, it instructs the jury that the burden of proof was upon the defendant, whereas it is said in ejectment the plaintiff must recover upon the strength of his own title, and hence has the burden of showing title in himself before he can recover, even as against a defendant in possession without title. That the proposition contended for is, in the abstract, correct, results from the provisions of section 1057, Rev. St. 1881, as well as from an often reiterated common-law rule. Standing alone, the instruction in question might have been misunderstood, but, read in connection with the seventh and tenth, we do not think it could have misled the jury.

In the seventh instruction the jury were told explicitly that the first paragraph of the answer to the first paragraph of the complaint put the plaintiff upon the proof of all the material allegations in such paragraph of complaint as were not specially therein admitted, and that, to entitle the plaintiff to recover, he must prove the material allegations of his complaint, not specially admitted, by preponderance of the evidence. The tenth instruction, given at the appellant's request, told the jury that the plaintiff must recover on the strength of his own title; that the burden of proof was upon him to show title to the land, and a right of possession; and that, if the plaintiff failed to show title in himself, it would make no difference whether the defendant had title or not. Taking the instructions all together, we can hardly conceive how the jury could have failed to realize that the necessity was upon the plaintiff to make out his title and right of possession by affirmative proof.

There was a sense in which the fifth instruction was not erroneous, as applied to the defendant's special answer. In so far as that answer was a plea in confession and avoidance, admitting the plaintiff's prima facie case, and avoiding it by affirmative matter, it was correct to say that the defendant was put to the proof of such affirmative matter. This, we think, is the fair interpretation of the charge. Thus interpreted, it was not erroneous, taken in connection with those which followed.

The eighteenth instruction is said to contain an erroneous statement of the law. It was as follows: "Under the statute of this state, twenty years of continuous, exclusive, uninterrupted, and adverse possession of real estate, not only has a right of action therefore, but it also confers a complete title as a written conveyance, against every one who is not under legal disabilities during any part of such time." This instruction is said to be faulty in not stating that adverse possession, in order to confer title in fee, under the statute of limitations, must be under color of title. While conceding that color of title is not necessary to constitute an adverse holding, so as to bar an action under the statute of limitations, appellant's counsel nevertheless contend that, in order to acquire a title in fee by adverse possession, the occupancy must have been under claim or color of title. Some of the earlier cases seem to recognize the distinction contended for. The later decisions, however, leave little room for contention. An open, notorious, exclusive, and uninterrupted adverse possession, continued for the period of 20 years, is effectual to confer a complete title on the person so occupying, and it is not essential that such possession should have been under color of title. State v. Portsmouth Sav. Bank, 106 Ind. 435-461; S. C. 7 N. E. Rep. 379; Sims v. City of Frankfort, 79 Ind. 446; Brown v. Anderson, 90 Ind. 93, and cases cited; Hargis v. Inhabitants, etc., 29 Ind. 70; Bauman v. Grubbs, 26 Ind. 419.

The acquisition of title to land by adverse occupancy is predicated upon the statute of limitations. The effect of the statute is such that the continuous and uninterrupted adverse occupancy of land for a period of 20 years operates to extinguish the title of the real owner, and vests the person so occupying with a title in fee-simple. Sedg. & W. §§ 726, 727. The bar of the statute

having become complete, the rights of the person entitled to its benefit are as complete as though he were invested with an actual title. A title so acquired is equally available, whether it is used as a shield for the purpose of defense, or to recover a possession lost after such title has fully matured. Some of the apparent confusion in the cases, which has been remarked upon, grows out of the difference between that peculiar hostile possession which formerly rendered conveyances executed by parties out of possession void, as respects persons occupying the land adversely, and that undisturbed possession which by the efflux of time will ripen into a title. The former required possession under color of title; the latter might originate without claim or color of title. The fact of possession, and the intention with which it was commenced and held, are the only tests of whether a possession be adverse or not. Davenport v. Sebring, 52 Iowa, 364; S. C. 3 N. W. Rep. 403. Any adverse possession the effect of which is to oust the true owner, and give to him a right of action, sets the statute of limitations in motion. When the bar of the statute becomes complete, however destitute of the color of title such occupancy may have been under, to the extent that it was actual, visible, and continuous, a title by prescription arises in the adverse occupant. This title is in all respects equal to a conveyance in fee.

The only distinction which can be recognized between title acquired under the statute of limitations by adverse occupancy under claim and color of title, and without such claim or color, is that in the latter case title will only be co-extensive with actual, visible, continued occupancy, while in the former color of title may, by construction, embrace lands only part of which were thus actually occupied. State v. Portsmouth Sav. Bank, supra. There was no error in the instruction.

The judgment is affirmed, with costs.

(110 Ind. 536)

CLEGG v. BAMBERGER, Adm'r, etc.* (Supreme Court of Indiana. January 5, 1887.)

1. ATTORNEY AND COUNSELOR-CONVERSION-DEATH OF CLIENT.

The relation of attorney and client is dissolved by the death of the latter; but if the attorney, after the death of the client, collects money, and converts it, the client's administrator may maintain an action for the money converted.

An attorney cannot select another attorney to prosecute an action, and payment of money collected to an attorney so selected will not be a defense to an action by the client.1

3. SAME TENDER-SUBSEQUENT REFUSAL.

An attorney who collects money for his client, and tenders it, is not relieved from liability if he subsequently refuses to pay over the money.

Appeal from circuit court, Clark county.

M. Z. Stannard and John H. Stotsenberg, for appellant. J. K. Marsh, for appellee.

ELLIOTT, C. J. The substance of the appellee's complaint is that he is the administrator of the estate of Jacob Bamberger, deceased; that his intestate, during life, placed in the hands of the appellant a note and mortgage, which the appellant, as an attorney at law, agreed and undertook to collect; that, after the death of the appellee's intestate, the appellant collected the amount due on the note and mortgage, and converted it to his own use.

We perceive no force in the appellant's objection to the complaint. Whether the appellant had or had not a right to collect the amount due on the note

1 An attorney cannot bind his client by the unauthorized employment of another attorney. Antrobus v. Sherman, (Iowa,) 21 N. W. Rep. 579; McDowell v. Gregory, (Neb.) 14 N. W. Rep. 899.

*Rehearing denied.

and mortgage is not material; for, if he did collect the money, and convert it, after the death of the intestate, a right of action exists in the administrator. It is true, as counsel contend, that the relation of attorney and client was dissolved by the death of the latter. Gleason v. Dodd, 4 Metc. 333; Balbi v. Duvet, 3 Edw. Ch. 418; Risley v. Fellows, 10 Ill. 531; Judson v. Love, 35 Cal. 463; Whitehead v. Lord, 7 Exch. 691. But we cannot understand how the attorney can reap any advantage from this rule of law; for, if it was wrong for him to continue to act as an attorney, he cannot take advantage of that wrong, and upon it justify a conversion of his client's money. If it was right for him to continue to act as an attorney, he must pay over what he received for his client, to his client's legal representative, and cannot make it his own by a conversion. If it was wrong, he cannot take advantage of that wrong. We do not deem it necessary to comment upon the evidence at length; for there is evidence not only tending to support the finding upon every material point, but satisfactorily supporting it. The evidence shows, without material conflict, that Clegg was the attorney of the decedent prior to his death, and, subsequently, of his administrator. He had therefore no authority to turn over the money collected by him to any other person than the client entitled by law to receive it.

An attorney cannot delegate his authority, and certainly that would not be tolerated in a case like this, where the attorney leads the client to believe that he is acting for him. Weeks, Attys. 246. In this instance the appellant assumed to act as the appellee's attorney, and the latter believed that he was so acting, and it is no defense that the appellant, having got the money into his own hands, subsequently paid it to a person selected by himself to represent his client.

An attorney is not excused by once making a tender of the money collected for his client, if he subsequently converts it. If he converts the money by making a wrongful use of it, he must answer to his client, although he may have, at some time prior to the conversion, tendered it to the client. We do not, therefore, examine the question as to the sufficiency of the evidence upon the subject of a tender; for, granting that it was duly made, it will not justify a subsequent conversion. Judgment affirmed.

(109 Ind. 205)

GRAHAM v. BABCOCK and others.

(Supreme Court of Indiana. January 6, 1887.) DESCENT-HEIR BY ADOPTION-HUSBAND NOT HEIR OF WIFE'S FATHER.

The surviving husband of a deceased wife who died, without issue, before her father, is not entitled, as by adoption in her stead, to the share of her father's estate which she would have inherited if she had survived her father.

Appeal from circuit court, Kosciusko county.

Clemens & Clemens, for appellant. H. S. Briggs, for appellees.

MITCHELL, J. It appears from the complaint in this case that Alexander Menzie, late a resident of Kosciusko county, in this state, died intestate in 1881, leaving the appellees, his children and grandchildren, as his only heirs. The appellant's deceased wife was a daughter of Alexander Menzie. She died without issue some years prior to the death of her father. This was an action by Graham, the appellant, to obtain partition of certain real estate in Kosciusko county, of which it is alleged Alexander Menzie, the appellant's late father-in-law, died seized.

Graham sets up a claim to inherit the share of Menzie's estate which the law would have cast upon his deceased wife in the event she had survived her father. The claim is that, since the deceased wife would have inherited had she survived her father, now that she is dead, having left no other heirs, the appellant becomes an heir of her father by adoption in her stead. It is a

matter of surprise that such a pretense should have been set up, and seriously argued in a court. The claim involves a total misapprehension of the law of descents. The circuit court very properly sustained a demurrer to the complaint.

The judgment is affirmed, with costs.

(109 Ind. 422)

SNOW and others v. INDIANA, B. & W. RY. Co. 1

(Supreme Court of Indiana. January 4, 1887.)

1. CARRIERS-BILL OF LADING-EVIDENCE-ROUTE.

Where a bill of lading for the shipment of goods to a point beyond the terminus of the line of the initial carrier is accepted before shipment by a shipper, the law imports into the contract, where it is silent, the provision that the carrier may select any customary and reasonably safe and direct route by which to forward the goods from the terminus of its line, and this cannot be contradicted by parol evidence of a prior verbal agreement specifying a certain route.

2. SAME-BREACH OF COMMON-LAW DUTY-EVIDENCE-VARIANCE.

Where it appears that goods were received for shipment under a written contract, set out in the first paragraph of a complaint, there can be no recovery on a second paragraph, counting simply upon a breach of the carrier's common-law duty, and evidence of a prior verbal agreement is not, in such case, admissible, even under such second paragraph, for the bill of lading must control.

Appeal from circuit court, Clinton county.

Paul Humphries, Davidson & Dice, Wm. M. Reeves, and S. O. Bayless, for appellants. Otto Gresham and W. R. Moore, for appellee.

MITCHELL, J. The plaintiff below brought this suit against the railway company to recover damages for an alleged breach of a contract for the shipment of a car-load of horses from Crawfordsville, Indiana, to Buffalo, New York, en route to Boston, Massachusetts. At the time the horses were delivered for shipment by the appellants' agent, the latter received from the railway company a bill of lading, which contained, among other stipulations, the following:

"LIVE-STOCK CONTRACT.

Boston,

Bill of Lading,

(Contracting,)

From Crawfordsville

to

Mass.

Buffalo, N. Y.,

CRAWFORDSVILLE, August 14, 1883. Received from W. H. Schooler the following stock: 17 horses.

Consigned, numbered, and marked as per margin, to be transported by the Indiana, Bloomington & Western Railway to its freight station at Indianapolis, ready to be delivered to the consignee or his order, or (if the same is to be forwarded beyond said station) to the agent of a connecting railroad or forwarding company, whose line may be considered a part of the route to the place of destination designated in the margin, to be in like manner forwarded and delivered to and by each succeeding railroad or forwarding company in the route, until it reaches the point contracted for in this bill of lading.

via

Through at $73 per car-load..

It was assigned as a breach of its contract that the railway company received the horses, and carried them by its own line to Indianapolis; after which, instead of delivering them to the "Bee-line Route," as it was alleged it had agreed to do, it delivered them to the "Nickle-plate Road," which, by 1 Rehearing denied.