under examination was the same. That the cause of action in two cases is the same is another test by which it is determined that an adjudication in one is a bar to the other. Herm. Estop. §§ 106, 107, 111; Kalisch v. Kalisch, 9 Wis. 482; Stowell v. Chamberlain, supra.

In the case of Veeder v. Baker, 83 N. Y. 156, 160, it was said: "Jurists have found much difficulty in precisely defining a cause of action. Pom. Rem. § 452. It may be said to be composed of the right of the plaintiff, and the obligation, duty, or wrong of the defendant; and these combined, it is sufficiently accurate to say, constitute the cause of action."

Under this definition, which seems to be a reasonable one, the cause of action in the supplemental proceeding and in the case before us, are the same. The right of appellee was to have the money in the possession of appellant applied in satisfaction of the judgment. The duty of appellant was to so apply that money, and his wrong was in withholding it, and refusing to apply it in payment of the judgment. The cause of action was the same, the evidence necessary to establish appellee's rights in either case was the same, the end to be accomplished in either proceeding was the same, and the method provided for the accomplishment of that end is substantially the same. Our conclusion upon the whole case is that the judgment in the proceeding supplemental to execution is a bar to the present action, and that, therefore, the court below erred in sustaining the demurrer to the pleas in bar.

The judgment is reversed, at appellee's cost, and the cause is remanded, with instructions to the court below to overrule the demurrer to those pleas, and sustain the demurrer to the verified complaint.

(109 Ind. 22)

MALOTT v. PRICE and others.

(Supreme Court of Indiana. January 7, 1887.) LICENSE-MILL-PERSONALTY-NOTICE OF CHATTEL MORTGAGE.

A written agreement by the owner of real estate, providing that the other party to the agreement may hold and use such real estate so long as the latter shall keep and maintain a mill thereon in running order, and recognizing the right of the latter to remove such mill, but containing no words of grant or conveyance, creates no freehold interest; and one to whom such agreement is assigned by memorandum on the back is chargeable with constructive notice of a chattel mortgage executed on the mill by the assignor, and duly recorded in the chattel mortgage records.

Appeal from circuit court, Grant county.

Steele & St. John and Geo. W. Harvey, for appellant. McDowell & Henry, for appellees.

MITCHELL, J. On the ninth day of October, 1874, John Comer and Richard Babb, being the owners of adjoining tracts of land in Grant county, made an agreement with Shock & Clark, the material part of which was in the following terms: "The said Comer and Babb agree to let Shock & Clark have two acres of ground on the south-east corner of Richard Babb's land, and out of the south-west corner of John Comer's land, to hold and use as their own as long as they keep the mill upon it, and keep the same in running order.". This agreement was signed by all the parties, but was not acknowledged. On the twenty-second of January, 1878, Shock & Clark assigned the agreement, by a writing indorsed on the back of the paper, to Jackson Nance. After several intermediate assignments, indorsed thereon, the paper was in like manner assigned to the appellant, Millicent Malott, on the third day of April, 1879. It may be inferred that a mill had been erected on the land before the agreement above set out was made. Apart from the inference arising from the language of the agreement above referred to, there is nothing in the record to show where, by whom, or under what arrangement or agreement, the mill in controversy was erected.

While Jackson Nance held the agreement above set out, as the assignor of Shock & Clark, he executed a chattel mortgage to Micajah H. Moon to secure an indebtedness owing by the mortgagor to Moon. The instrument recites that the mortgagor had bargained and sold to Moon "the following described personal property, to-wit: The undivided one-half of one grist-mill, with three run of burrs,-two for wheat and one for corn; stationary boiler and engine, combined; also the undivided one-half of a stationary saw-mill and saw-frame, and all the fixtures thereunto belonging; * * * situated in Franklin township, Grant county, Indiana." This instrument was duly recorded in the chattel-mortgage record of Grant county.

It is conceded that the mill described in the mortgage is the same as that referred to in the agreement above set out. Price, as the assignee of Moon, commenced this suit to foreclose the mortgage, the appellant being described as a defendant claiming an interest in the mortgaged property. A judgment of foreclosure having been given below, the appellant brings this appeal, and asks a reversal, on the ground that she was an innocent purchaser of the mortgaged property, without notice of the mortgage.

The argument on her behalf proceeds upon the theory that the agreement between Comer and Babb on the one part, and Shock & Clark on the other, created in the latter a freehold estate in the land therein described. It is said the estate thereby created is in the nature of a base or qualified fee, and that the mortgage sought to be foreclosed was therefore an incumbrance upon real estate. Hence it is argued, since it appears from the evidence that the appellant purchased and paid for the property without actual notice of the incumbrance, the chattel-mortgage record did not charge her with constructive notice. The case is before us upon a second appeal, without substantial difference as to the merits of the question involved. Price v. Malott, 85 Ind. 266.

The agreement referred to contains no words of grant or conveyance of any description whatever. Hummelman v. Mounts, 87 Ind. 178. It was, in legal effect, nothing more than a mere naked license, under which Shock & Clark were authorized to occupy the land of Comer & Babb, so long as they should see fit to keep the mill upon the land, and keep it in running order. Whatever interest or right the appellant acquired, if she acquired any, she took by a mere assignment indorsed on the back of the written memorandum. Freehold estates in land cannot be created by an informal memorandum such as that referred to, nor are such estates transferred by merely assigning the deed which creates them. While the record discloses nothing concerning the agreement under which the mill was erected, the plain inference from the writing above set out is that Shock & Clark had the right to remove it at their discretion. It was therefore, as between them and the owners of the land, presumably personal property. Price v. Malott, supra; Rogers v. Cox, 96 Ind. 157, and cases cited.

The appellant's interest in the property having accrued to her under and by an assignment of the agreement in question, her interest cannot be greater in extent than was that of her assignor. Having taken an assignment of an instrument which could not with propriety be regarded as a conveyance of real estate, and which was only assignable on the assumption that it related to a chattel interest, she is chargeable with notice of the nature and quality of the interest assigned. The very instrument through which she claims, recognizes the right of her assignor to treat the mill as personalty, and remove. it from the land. She was therefore bound to know that the mortgaged property was subject to all the incidents of property of that description, one of which is the liability of being incumbered by chattel mortgage.

That the mill was a permanent structure, and annexed to the real estate, does not affect the question in a case like this. As we have seen by the terms. of the instrument under which the appellant claims as assignee, the mill was

treated as personal property by the owners of the freehold and their licensees. The appellant's assignors treated it as personalty, and mortgaged it as such. The instruction' given by the court to the effect that if the owners treated the property mortgaged as personal property, and mortgaged it as such, the mortgage was properly recorded as against the appellant, was therefore not erroneous. What has been said disposes necessarily of the other questions argued. The appellant's position cannot be assimilated to that of an innocent purchaser of land upon which trade fixtures have been erected, and permanently annexed to the soil, the purchaser being ignorant of a binding agreement authorizing the fixtures to be severed. It was agreed that the mortgage was duly recorded in the chattel-mortgage records.

The judgment is affirmed, with costs.

(109 Ind. 177)

BIETMAN v. HOPKINS and others.

(Supreme Court of Indiana. January 8, 1887.)

1. WITNESSES-HUSBAND AND WIFE-COMMUNICATIONS BETWEEN-SUIT TO SET ASIDE FRAUDULENT CONVEYANCE-SECTION 497, REV. ST. IND. 1881.

A wife is not an incompetent witness under section 497, Rev. St. Ind. 1881, as to negotiations between herself and husband, resulting in the conveyance of real estate to her, and showing a valid consideration therefor, in trial of a suit to set aside such conveyance as fraudulent.

2. JUDGMENT-SIGNING RECORD-SPECIAL JUDGE-REV. ST. IND. 1881, 415.

The failure of a special judge to sign the record of a final judgment during the term is a mere irregularity, and not cause for a retrial; and, under section 415, Rev. St. 1881, he may sign it at another term.

Appeal from circuit court, Daviess county.

F. M. Hayne, A. J. Padgett, and John Downey, for appellant. J. W. Burton, for appellees.

ZOLLARS, J. Appellant, having a judgment against Ezekiel Hopkins, brought this action against him and his wife, Martha, to set aside a conveyance of real estate from him to her, upon the ground that it was fraudulent and void as against creditors, and especially as to appellant. The consideration expressed in the deed is one dollar, and the repayment of money which, prior to the conveyance, the husband, Ezekiel, had received from the wife, Martha. Upon the trial, the wife was allowed to state that, at the time the deed was executed, it was agreed between her and her husband that the land should be conveyed to her in payment of the husband's indebtedness to her, and that, as a further consideration, she agreed to assign and pay a mortgage upon the land, executed by her husband, and in the execution of which she had not joined. Appellant objected, and still objects, to the evidence, upon the ground that it was the detailing of communications between the husband and wife, and hence incompetent under section 497 of the Code.

The evidence was a statement of the negotiations between the husband and wife, prior to, and which resulted in, the conveyance of the land. In our judgment those negotiations were in no sense such communications between husband and wife as are rendered incompetent under the above section of the statute.

Such, clearly, is the result of the holding in the case of Schmied v. Frank, 86 Ind. 250. The holding in that case, upon the point involved here, is applicable and authority in the construction of our present statute. See, also, as bearing upon the question, Mitchell v. Colglazier, 106 Ind. 464; S. C. 7 N. E. Rep. 199; Sedgwick v. Tucker, 90 Ind. 271.

The cause was tried, and judgment rendered, by a special judge. He neglected to sign the record of the final judgment. At a subsequent term of the court appellant made a motion to have the cause redocketed for another trial, because of such failure of the special judge to sign the record at the term at

which the judgment was rendered. Over appellant's objection and exception, the special judge overruled that motion, and signed the record. The failure of the special judge to sign the record of the final judgment at the term at which the judgment was rendered, did not render the judgment void. It was, at most, but an irregularity, and could in no event entitle appellant to a retrial. And if it should be conceded that the special judge had no authority to sign the judgment at the time he did, it would not follow at all that the judgment was void. We think, however, that, under section 415, Rev. St. 1881, the special judge had authority to pass upon appellant's motion, and to sign the record at the time he did. The statute, it will be observed, is an enlargement upon prior statutes, and was intended to clothe special judges with authority to act in cases in which they are called to preside, until the final judgment is rendered, entered up, and signed.

Some question is made as to the sufficiency of the evidence to sustain the verdict in favor of appellee Martha Hopkins. We cannot reverse the judgment upon the weight of evidence. It may be observed, in passing, that three juries in the separate trials decided the questions of fact in her favor. We find no error for which the judgment should be reversed. Judgment affirmed, with costs.

(109 Ind. 206)

TABER V. GRAFMILLER and others.

(Supreme Court of Indiana. January 11, 1887.)

1. MUNICIPAL CORPORATIONS-STREET ASSESSMENTS-ORDINANCE NEED NOT DESCRIBE IMPROVEMENT IN DETAIL.

It is not necessary that the ordinance or resolution directing the improvement of a street should describe the improvement in detail; it is sufficient if it gives a general direction as to the plan of the work.

2. SAME DUTIES OF CIVIL ENGINEER-PLANS AND SPECIFICATIONS.

Section 3073, Rev. St. Ind. 1881, expressly makes it the duty of the civil engineer to prepare plans and specifications for street improvements.

The word "street" is a generic one, embracing sidewalks, and authority to improve streets includes authority to improve sidewalks.

4. SAME-LANDS HELD FOR FARMING PURPOSES LIABLE.

Land within the limits of a city, held for farming purposes, is liable to assessment for street improvements.

Appeal from circuit court, Allen county.

T. E. Ellison, for appellant.

ELLIOTT, C. J. The appellant sought by this suit to restrain the city of Fort Wayne from enforcing an assessment proposed to be made for the cost of constructing a sidewalk. The resolution adopted by the common council reads thus:

"A resolution to grade and pave with brick the sidewalks on both sides Baker street, from Webster street to Fairfield avenue.

"Be it resolved by the common council of the city of Fort Wayne (twothirds of the members thereof concurring) that the sidewalks on both sides of Baker street, from Webster street to Fairfield avenue, be graded to a width of 10 feet, and paved with brick to a width of 6 feet; and be it further resolved (this council hereby declaring such improvement necessary) that the costs and expenses thereof be assessed against and collected from the owners of lots or lands bordering on said sidewalks, according to the provisions of sections 68, 69, 70, and 71 of the act of the general assembly of the state of Indiana approved March 14, 1867, for the incorporation of cities, and that said improvement shall be made under the supervision and to the satisfaction of the city civil engineer, and in accordance with plans and specifications on file at the office of said engineer; and be it further resolved that the city civil v.9N.E.no.8-46

engineer set the proper stakes, and advertise for two days, in each of two successive weeks, in the Fort Wayne Daily Sentinel and Tri-weekly Staats Zeitung, that sealed proposals will be received by this council, at a meeting to be held on the 188---, for the execution of said work."

day of

We think that this resolution was sufficient to authorize the improvement described in it. We do not understand that it is necessary to describe the character of the improvement in detail, but we think that it is sufficient to provide that the improvement shall be of a designated character without specifying with particularity of detail what it shall be. We do not regard the case as within the rule declared in Smith v. Duncan, 77 Ind. 92, for there is here no delegation of authority; nor is it within the decision made in Merrill v. Abbott, 62 Ind. 549, for there is here a specification of the nature of the work, which it is ordered shall be done at the expense of the property owners. There is here what was said in Merrill v. Abbott, supra, to be necessary, "a general direction as to the plan of the work;" for the resolution clearly implies that there is an existing grade, properly established. Wren v. City of Indianapolis, 96 Ind. 206, see page 218. There is certainly enough in the resolution to constitute a basis for letting the contract, and this, as decided in Merrill v. Abbott, is what the law requires.

The fact that no plans or specifications were on file in the office of the city engineer at the time the resolution was adopted, did not vitiate the resolution, for nothing was delegated to him, nor any discretion that ought to be exercised by the common council confided to him. The presumption is that such plans and specifications were on file in time to permit proper bids to be made, and that they conformed to the ordinances of the common council. It must be presumed that the engineer did his duty, and prepared proper plans and specifications conformably to the city ordinances. We concur fully in the doctrine declared in Ray v. City of Jeffersonville, 90 Ind. 567, that the duty of preparing plans and specifications is a ministerial one, vested by law in the engineer. It is no part of the duty of the common council to prepare plans and specifications, for the law expressly devolves that duty upon the civil engineer. Rev. St. 1881, § 3073. The common council can no more perform the duties of the civil engineer than can he perform the duties of the common council, for the fundamental law prescribes the duties of city officers, and must be obeyed. If the case of Smith v. Duncan can be said to conflict with this view, then, to that extent, it is not approved.

Where the ordinance or resolution specifies that the pavement shall be of brick, it is sufficiently certain, for the just and reasonable implication is that the brick shall be paving brick of the kind ordinarily used. It would serve no useful purpose, nor benefit the property owners, to specify or detail the size and quality of the brick; and it would impose a needless burden upon the municipal corporation, and invite profitless litigation. The word "street" is a generic one, and embraces sidewalks. Under an authority to improve streets, a municipal corporation may improve sidewalks. City of Kokomo v. Mahan, 100 Ind. 242; State v. Berdetta, 73 Ind. 185; S. C. 38 Amer. Rep. 113; 2 Dill. Mun. Corp. (3d Ed.) § 780, note 1. Land within the limits of a city, although held for agricultural purposes, is subject to local assessments for street improvements. The statute on the subject of taxing such lands does not apply to assessments for the cost of improving streets on which the land abuts. Leeper v City of South Bend, 106 Ind. 375; S. C. 7 N. E. Rep. 1; Kalbrier v. Leonard, 34 Ind. 497.

We have examined and decided only such questions as have been presented to us, and our decision is authoritative upon no others. Judgment affirmed.