The information furnished by the "Final Process Record" goes no further than a sale, even if it be assumed, which is by no means clear, that the names "Walker & Dexter" therein mean that Walker & Dexter were the attorneys of the plaintiffs in the attachment suit. This has no tendency to prove that a deed had been executed.

The execution of a sheriff's deed may or may not follow a sheriff's sale. If the deed is executed, the record should, as to subsequent purchasers and incumbrancers without actual notice, show it; and, the record not showing it, it may be reasonably concluded, in the absence of actual notice, that it has not been executed. There was no willful turning away from actual knowledge here. When the sheriff's sale took place, the lots were vacant and unoccupied. No actual possession of them was taken by appellant or Riley before Gage purchased. When Gage purchased, a portion of them were occupied by tenants attorning to his vendor, and, as to the residue, there was no impediment to an immediate possession. Possession of all the lots was actually surrendered to him at the time of his purchase.

We think the evidence ample to prove that Gage purchased in good faith, in fact, the outstanding titles; and the difference in the opinions of different individuals in regard to the values of real estate will, we think, sufficiently account for any discrepancy between the price paid, $6,000, and the actual value of the property. A circumstance strongly confirmatory of his good faith, in fact, is that he consulted, before purchasing, the late Mr. Kales, a gentleman of deservedly high standing in his profession as a real-estate lawyer, and, after laying all the facts before him, purchased, upon his advice that he would acquire a good title.

We find no cause to disturb the decree below. It is therefore affirmed.

SHELDON, J., dissents.

(109 Ind. 250)

WYM v. TROY and others.1

(Supreme Court of Indiana. October 29, 1886.)

TRIAL BY COURT-CONCLUSIONS OF LAW-EXCEPTION-ADMISSION.

A party excepting to conclusions of law thereby admits that the facts have been fully and correctly found; so, where a fundamental fact, without an allegation of which the complaint would be bad, is not found in the special findings, it cannot be considered in applying the law to the case.

Appeal from Hancock circuit court.

Marsh & Cook, for appellant. Offutt & Black, for appellee.

Howk, C. J. After this cause was put at issue it was tried by the court, and, at the request of appellant, the plaintiff below, the court made a special finding of the facts, and thereon stated its conclusions of law. Over appellant's exceptions to the court's conclusions of law, judgment was rendered thereon, and in accordance therewith. From this judgment appellant prosecutes this appeal; and the only error of which she here complains, is the alleged error of the trial court in its conclusions of law. The facts found by the court were substantially as follows:

On the fourth day of January, 1883, Harriet Piper purchased of the defendant Christopher C. Troy lots numbered 2 and 3, in block 1, in Records and Vorhe's addition to the town of Fortville, in Hancock county, and she sold, assigned, and transferred to said Troy a note, calling for the sum of $ purporting to have been executed to her by Gray & Walker. Afterwards defendant Troy represented to the defendant Harriet Piper that there was a mistake in said note, in the interest clause thereof, and that it did not draw interest, as was intended by the parties; and thereupon the said Troy caused to be drawn up a note, of which the following is a copy:

1Rehearing denied,

"MARCH 31, 1883.

"One hundred and fifty days after date we promise to pay to the order of Harriet Piper, at Fortville, four hundred and eighty-three 33-100 dollars, value received, without any relief from valuation or appraisement laws, with eight per cent. per annum from date until paid, and attorney's fees. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest, and non-payment of this note.

[Signed]

"GRAY & WALKER."

-And the same was thereupon executed by Joseph B. Gray in the name of Gray & Walker, and was by said Troy presented to the defendant Harriet Piper for her indorsement, in lieu of the original note, as to the interest that the note should draw, and was accepted by said Troy in payment for the real estate above described. Afterwards said Troy purchased of the plaintiff, Wym, certain real estate in Hancock county, and, in payment therefor, transferred and indorsed said note to her. All the parties, up to that time, believed the note to be a valid and binding promissory note of the firm of Gray & Walker. Prior to the giving of the note first above mentioned, and at the time of its execution, Gray & Walker were partners in a firm composed of Joseph B. Gray and Marcellus B. Walker, who were engaged in the mercantile business in said town of Fortville. Prior to the execution of said first note Gray had borrowed of the defendant Harriet Piper the sum of $300 upon his own credit, and for his own purposes, and had executed to her his note therefor. During the existence of such firm, Gray also borrowed of the defendant Piper an amount equal to the residue of such note, upon the credit, and ostensibly for the purposes, of said firm, in its business, and thereupon executed to her a note in said firm name for his individual debt aforesaid and said partnership debt. Said note was so executed without the knowledge or consent of Marcellus B. Walker. Prior to the time of the execution of the note in suit in this action the firm of Gray & Walker was dissolved, and the note in suit was executed by Joseph B. Gray, in the name of Gray & Walker, without the knowledge or consent of said Walker. After the maturity of said note, on the eighteenth day of December, 1882, plaintiff, Wym, brought suit against said Gray & Walker as defendants, in the Hancock circuit court, to recover upon such note. Gray made default, and judgment was rendered against him for the amount due on the note. Walker appeared, and answered by a denial under oath of his execution of the note, and upon the trial of this issue a verdict was returned, and judgment was rendered, in favor of said Walker, for his costs, taxed at $44.05. Prior to the trial of said cause the defendant in this suit Harriet Piper knew of Walker's defense to the note, but she did not employ counsel, nor take any part in the prosecution of such cause, and only appeared at the trial thereof as a witness for the plaintiff. Troy knew of the pendency of such cause, and employed counsel therein, who appeared for him, and assisted in the prosecution thereof. At the maturity of the note in suit, Joseph B. Gray was insolvent, and had no property out of which the debt, or any part thereof, could have been made by execution. Upon the foregoing facts the court stated the following conclusions of law: "(1) The plaintiff is entitled to recover of the defendants Harriet Piper and Christopher C. Troy, severally, the amount of the note sued on, with the interest thereon, and the costs of the trial of the issue joined between plaintiff and Marcellus B. Walker, in the action brought thereon against him and Gray, to-wit, the sum of five hundred and eighty-six dollars. (2) The plaintiff is not entitled to have such sum declared to be a lien upon the real estate conveyed by Christopher C. Troy to the defendant Harriet Piper, as a vendor's lien or otherwise."

Did the trial court err in its conclusion of law which we have numbered 2, upon the facts specially found? In other words, did the court err in holding,

upon the facts found, that appellant had no lien, either as vendor or otherwise, upon the lots of Harriet Piper? This is the only question we are required to consider and decide; for we do not understand that appellant complains here of the first conclusion of law, or of the personal judgment rendered thereon, in her favor, against each of the appellees for the full amount due on the note in suit. As the appellant has presented her case here solely upon her exceptions to the court's conclusions of law, it is settled by our decisions that she thereby admits that the facts of the case have been fully and correctly found, and can only claim that the trial court has erred in applying the law to the facts so found. Cruzan v. Smith, 41 Ind. 288; Robinson v. Snyder, 74 Ind. 110; Bass v. Eliiott, 105 Ind. 517; S. C. 5 N. E. Rep. 663.

Upon the facts found by the court we are of opinion that the appellant has no possible ground or reason for complaining of either of the conclusions of law. The fundamental fact alleged by appellant, in stating her supposed cause of action against the appellee Harriet Piper, was that the latter had assigned the note in suit, by indorsement, to her co-appellee Troy. In the absence of an averment of this fundamental fact, it is certain, we think, that appellant's complaint would not have stated any cause of action against the appellee Harriet Piper. Yet, in its special finding of facts, the court wholly failed to find as a fact-perhaps through an oversight, and perhaps for the want of any evidence that appellee Harriet Piper had ever assigned, by indorsement, the note in suit to her co-appellee Christopher C. Troy. The evidence is not in the record, and we do not know why the court failed to find this fundamental fact if it were the fact. In this state of the record it seems to us that Harriet Piper alone has cause to complain of the court's conclusions of law, and surely appellant ought not to complain; for, upon the facts found by the court, the conclusions of law were more favorable to her than she was authorized to ask or expect.

The judgment is affirmed, with costs.

(108 Ind. 132)

BURGH v. STATE ex rel. MCCORMICK, Pros. Atty., etc.

(Supreme Court of Indiana. October 30, 1886.)

1. TAXATION-FALSE TAX-LIST-COMPLAINT TO RECOVER PENALTY UNDER SECTION 6339, REV. ST. 1881-WHAT IT MUST SHOW.

A complaint to recover the statutory penalty for making a false tax-list of personal property must aver that the defendant was a resident of the township for which he made his list.

2. SAME CONSTITUTIONALITY OF SECTION 6339, REV. ST. IND. 1881.

Section 6339, Rev. St. Ind. 1881, providing a penalty for making a false tax-list, to be paid into the county treasury, is neither unconstitutional nor in contravention of the bill of rights.

Appeal from Martin circuit court.

Thos. M. Clarke and J. T. Rogers, for appellant. McCormick & Porter, for appellee.

son

*

*

ZOLLARS, J. This is an action in the name of the state, on the relation of the prosecuting attorney, to recover from appellant the statutory penalty for having made a false tax-list. The action is based upon section 6339, Rev. St. 1881. So much of that section as is material here is as follows: "If any per** shall give a false or fraudulent list, schedule, or statement required by this act, he * * shall be liable to a penalty of not less than $50, nor more than $5,000, to be recovered in any proper form of action, in the name of the state of Indiana, on the relation of the prosecuting attorney. The assessor shall forthwith notify the prosecuting attorney of any such delinquency or offense, and he shall prosecute such offender to final judgment and execution; and such fine, when collected, shall be paid into the county treasury, for the use of the county, and the prosecuting attorney shall receive

ten per centum commission on all moneys so collected and paid in, and a docket fee of ten dollars, to be taxed and collected with costs in such action," etc.

The following is a fair epitome of the complaint: In May, 1885, the assessor of Rutherford township, in Martin county, called on appellant for a list of all his personal property, money, rights, credits,.and choses in action, and received from him a list which was not a true and correct list of his rights, credits, and choses in action, but was false and fraudulent, in that it did not contain certain described notes and mortgages, which appellant held and owned on the first day of the preceding April. Although requested by the assessor so to do, appellant failed and refused to report the several described notes and mortgages, but falsely and fraudulently reported that he had nothing due him, and gave a false and fraudulent list of his taxable personal property, etc. The wrong attempted to be charged is the giving of a false, fraudulent tax-list.

Appellant seeks a reversal of the judgment against him upon the action of the court below in overruling his demurrer to the complaint. One objection urged to the complaint is that it contains no averment that appellant was a resident of Rutherford township, in Martin county. This objection, we think, is well taken. The tax law requires that the owner shall list in the township where he resides his money, etc., and credits due from or owing by any person or persons, body corporate or politic, to him, without regard to the place where the said taxables may exist or be situated. Rev. St. 1881, §§ 6286-6290.

The above section 6339, upon which this action is predicated, inflicts a penalty, in case the list required by the act, the tax law, is false or fraudulent. The act, as we have seen, requires the owner to list his credits, etc., in the township where he resides. He is not required to list them in any other township. Hence the furnishing of a false list of such property to the assessor of a township other than that in which the owner may reside, will not subject him to the penalty provided by the above section 6339. That section is penal in character; and, to make a case against a person for the penalty therein provided, enough must be averred to show that he is within its terms. As said in the case of W. U. Tel. Co. v. Axtell, 69 Ind. 199: "A court cannot create a penalty by construction, but must avoid it by construction, unless it is brought within the letter and the necessary meaning of the act creating it." See W. U. Tel. Co. v. Ferguson, 57 Ind. 495; W. U. Tel. Co. v. Harding, 103 Ind. 505, 508; S. C. 3 N. E. Rep. 172. See also, as somewhat analogous, Lose v. State, 72 Ind. 285; Stribbling v. State, 56 Ind. 79. The complaint being fatally defective for the reason above stated, the judgment must be reversed for the error of the court below in overruling the demurrer thereto.

Here this opinion might be closed but for the fact that other questions are discussed that will not cease to be material with the reversal of the judgment. Section 2 of article 8 (Rev. St. 1881, § 183) of the constitution provides that fines assessed for breaches of the penal laws of the state shall go into, and be a part of, the common-school fund. It is contended that, as the above section 6339 requires the penalty therein provided to be paid into the county treasury for the use of the county, it is in contravention of the above constitutional provision. The answer is that the constitutional provision has reference to fines assessed in criminal prosecutions, and that the penalty provided in section 6339, supra, is not a fine in that sense. It is not to be recovered by a criminal prosecution, but by a civil action. At one place in the section the penalty is spoken of as a fine, but the whole section shows that it is not a fine in the sense in which that word is used in the above section of the constitution.

It is further contended that the section of the statute under consideration is in contravention of section 16 of the bill of rights. Rev. St. 1881, § 61.

That section provides that excessive fines shall not be imposed; that cruel punishment shall not be inflicted; and that all penalties shall be proportioned to the nature of the offense. Conceding, for the present, without in any way deciding, that the penalties spoken of in that section may include such penalties as are provided in section 6339, supra, yet we cannot hold that that section is in conflict with the bill of rights. The inhibition is against the passage of laws imposing fines and penalties that may be unreasonable and oppressive. Whether fines and penalties are so unreasonable and oppressive must rest largely with the legislature. Section 6339 provides that a person making a false and fraudulent tax-list shall be liable to a penalty of not less than $50, and not more than $5,000. Under that section a court might impose the penalty of $5,000 upon a person who has fraudulently omitted from his tax-list but a small portion or amount of his taxable property. But the fact that the penalty is fixed at amounts between fifty and five thousand dollars shows that the legislature understood and intended that the penalty imposed in any particular case should be in proportion to the gravity of the wrong, and that the amount to be imposed in any particular case should be left to the sound discretion of the court. If a tax-payer should fraudulently omit from his tax-list a sufficient amount of property to yield twenty thousand or even ten thousand dollars of taxes, it could not be declared by the courts that the imposition of a penalty of $5,000 would be so unreasonable or oppressive as to overthrow the statute. The courts having discretion, it must be presumed, in favor of the constitutionality of the act, that that discretion will be wisely and justly exercised. The section gives latitude for the imposition of a heavy penalty, but it must be remembered that the wrong for which it may be imposed is a grave wrong, both as against the public and the honest tax-payer.

The most serious question in the case is as to whether that portion of the section of the statute here involved is in conflict with that provision of the bill of rights which provides that a person shall not be twice punished for the same offense. Rev. St. 1881, § 59. Section 2150, Rev. St. 1881, provides that "whoever, when requested by the assessor, * * * fails to give a true list of all his taxable property, or to take and subscribe any oath in that behalf, as required by law, * * * upon conviction thereof shall be fined not more than five hundred dollars, nor less than ten dollars." After a careful consideration, we have concluded that the portion of the section above set out, which is all that is pertinent here, is negative in its character; that is, it provides a fine for not doing that which the law requires. The wrong for which the fine is provided is not a false oath, nor the making of a false or fraudulent tax-list, but the failure on the part of the property owner, when requested, "to take and subscribe the required oath, and the failure and refusal to give a list of all his taxable property." On the other hand, the wrong for which the penalty is to be imposed under that portion of section 6339 above set out is not the failure and refusal to furnish the tax-list, but the giving of a false and fraudulent list. For the refusal, under section 2150, a fine is to be inflicted. For the furnishing of a false and fraudulent list section 6339 provides a penalty. The wrongs, we think, are different, and hence it cannot be said that the two sections provided for a double punishment for the same offense, whatever might have been the result were the wrongs the same. For a full discussion of the general subject, see the case of State v. Stevens, 103 Ind. 55; S. C. 2 N. E. Rep. 214.

Other questions are discussed by counsel; but, as they may not arise' upon a remodeling of the complaint, we need not now decide them. Judgment

reversed.