trial, or any other rights ordinarily allowed | 5 (being four days after so reporting), and the defendant in a civil action, and the city reported it favorably the next day (S. J. pp. is without any other remedy than by an in- 599, 608, 677, 679). The two acts under conjunction to prevent the enforcement of said sideration having been passed at the same judgment; that enforcement of said judg- session of the Legislature, and having taken ment will be harmful to plaintiff for reasons effect at the same time, must be construed as stated; and that David C. Collins is made together, as parts of one body of laws, and a party in order that he may assert what- as together expressing the legislative will, if ever rights he may have under the pretend- it be possible to reconcile them on any basis ed judgment. whereby both may be given effect. Holle v. Drudge, 190 Ind. 520, 524, 129 N. E. 229; Princeton C. M. Co. v. Lawrence, 176 Ind. 469, 477, 95 N. E. 423, 96 N. E. 387. Chapter 140, supra, purports to amend "an act concerning municipal corporations," which had been in force many years, by inserting 129 words in a section that relates to making special assessments against abutting property for the cost of street or sewer improvements, being the fifth of fourteen consecutive sections regulating the making of such improvements by order of the board of public works and the levy and collection of assessments against the property benefited to pay the expense of making them. While chapter 143, supra, as stated by the title, is a general act "concerning appeals from boards of public works and boards of part commissioners of cities, in all matters where appeals are now or may hereafter be allowed by law," the body of the act, not being more narrow or specific than the title, but purporting to apply to "all appeals now allowed, or which may hereafter be allowed by law from any action or decision of the board of public works or the board of park commissioners of any city." [1, 2] The sufficiency of this complaint depends upon whether filing an unverified complaint 14 days after the final order was made approving the assessments, and causing summons to issue as in civil actions, gave the circuit court jurisdiction, under the provisions of chapter 143, Acts 1919, supra, or whether the case is controlled by chapter 140, supra, which requires a verified petition to be filed within 10 days, a bond for costs to be given, and a 5 days' "notice of the filing thereof, and that the same will be heard by such court at the end of said time," to be given the city by the clerk. Both of the statutes referred to were approved by the Governor on March 14, 1919, and were filed in the office of the secretary of state on that day, and both contained emergency clauses and took effect immediately. The court may resort to the journals of the two 'legislative bodies, and read therein the history of these laws, from their first introduction to their final passage, as an aid in their interpretation with a view to ascertaining the legislative intent in passing them (Edger v. Board, 70 Ind. 331, 338; Arnett v. State, 168 Ind. 180, 189, 80 N. E. 153, 8 L. R. A. [N. S.] 1192; 2 Lewis' Sutherland Stat. Const. [2d [3] It is an established rule of statutory Ed.] 470); and by consulting them we find construction that so far as specific provisions that the journals of the House and Senate contained in an act having special refershow that both bills were referred to the ence to a limited and definite part of the same committee (on cities and towns) in each subject-matter of a general act passed at branch of the Legislature, that each commit- the same time are inconsistent with provitee reported both bills favorably, and that, sions of such general act which purport to while the bill (No. 170) which afterward be- embrace the entire subject, the specific procame chapter 140 was passed by the House visions of the act covering only a limited five days before the one (No. 308) which be- part of such subject will control. Kingan came chapter 143 (House Journal 1919, pp. & Co. v. Ossam, 190 Ind. 554, 557, 131 N. E. 584, 666), it was finally passed in the Senate 81; City of Birmingham v. Southern Ex. on March 10th, after the other had been Co., 164 Ala. 529, 51 So. 159; Lawyer v. finally passed on March 7th (Senate Journal Carpenter, 80 Ark. 411, 413, 97 S. W. 662; 1919, pp. 719, 779). Neither act contains any State v. Jones, 34 Idaho, 83, 86, 199 P. 645; direct reference to the other. The journals Stephens v. Chicago, etc., R. Co., '303 Ill. also show that the committee on cities and 49, 54, 135 N. E. 68; Great Western Acc. towns in the House received House bill No. Ins. Co. v. Martin, 183 Iowa, 1009, 1011, 166 170 (chapter 140) on January 24, 1919, and N. W. 705; Edwards v. Auditor General, reported it favorably on February 5th (H. J.161 Mich. 639, 644, 126 N. W. 853; Hobart pp. 122, 250), and that it received House bill v. City of Minneapolis, 139 Minn. 368, 371, No. 308 (chapter 143) on February 6th (being 166 N. W. 411; Reagan v. Boyd, 59 Mont. the next day after so reporting), and, having | 453, 461, 197 P. 832; State v. Clarke, 98 Neb. prepared a number of amendments, reported 566, 571, 153 N. W. 623; Parker v. Elmira, it favorably, with such amendments, on Feb- etc., R. Co., 165 N. Y. 274, 279, 59 N. E. 81; ruary, 19th, less than two weeks later (H. J. State v. Johnson, 170 N. C. 685, 688, 86 S. E. pp. 262, 435), and that the same committee of 788; State v. Wetz, 40 N. D. 299, 306, 168 N. the Senate received No. 170 on February W. 835, 5 A. L. R. 731; Perkins v. Bright, 109 28th, and reported it favorably the next day. Ohio St. 14, 17, 141 N. E. 689; State v. Pres (149 N.E.) R. 414; Buckley v. Holmes, 259 Pa. 176, 189, therefrom," and, since the complaint al 102 A. 497; Salt Lake City v. Salt Lake leged facts showing that the court had enCounty, 60 Utah, 423, 427, 209 P. 207; School tered judgment against the plaintiff in a Board v. Alexander, 126 Va. 407, 417, 101 matter of which it had no jurisdiction, it S. E. 349; State v. Benson, 111 Wash. 124, stated a cause of action, and the demurrer 131, 189 P. 1000; State v. Snyder, 172 Wis. should have been overruled. 415, 418, 179 N. W. 579; Endlich Interpretation of Statutes, 223, 399; Lewis' Sutherland's Construction of Statutes (2d Ed.) 274; 36 Cyc. 1151. Appellant seeks to question the constitutionality of chapter 143, supra, but, in view of the conclusion reached, we do not find it necessary to decide the constitutional question. That and other questions argued by counsel may not arise when the cause is remanded to the circuit court. The judgment is reversed, with directions to overrule the demurrer to the complaint. Nov. 5, 1925.) 68-Requisite possession confers complete title. Open, notorious, exclusive, and uninterrupted adverse possession for period of 20 years is effectual to confer complete title on person so occupying, and it is not essential that such possession should have been under color of title. 2. Adverse possession 13-"Adverse possession" defined. [4-6] Applying this rule to the facts of this case, we find that chapter 143, supra, purports to embrace all appeals from any action or decision of the board of public works or park commissioners of any city, while chapter 140, supra, applies only to appeals from final orders modifying or confirming assessment rolls levying special ben- SWANSON et al. v. NEW YORK CENT. R. efits to meet the cost of certain kinds of pubCO. (No. 11972.) lic improvements. Therefore the latter must (Appellate Court of Indiana, Division No. 2. control within its sphere, and, in order that appellees might effectually take an appeal to the circuit court, it was necessary to file 1. Adverse possession a verified petition and bond within 10 days. And, since the complaint alleged that no petition whatever was filed until the 14th day, and that no bond was filed until 6 months had elapsed, it stated facts showing that the circuit court never acquired jurisdiction by way of an appeal from the action of the board of public works. The right of appeal in such a case as this is statutory, and the court to which an appeal is taken cannot obtain jurisdiction by virtue of such appeal unless the requirements of the statute as to taking and perfecting appeals are complied with. Amacher v. Johnson, 174 Ind. 249, 253, 91 N. E. 928; Hall v. Kincaid, 64 Ind. App. 103, 116, 115 N. E. 361. And where the statute grants an appeal to the circuit court upon filing a bond within a limited time, and doing certain other acts, filing the bond within the time allowed is jurisdictional, and, unless a bond is so filed, the court cannot acquire jurisdiction to take any action in the matter. Smith v. Gustin, 169 Ind. 42, 49, SO N. E. 959, 81 N. E. 722; Shirk v. Moore, 96 Ind. 199, 200; Crumley v. Hickman, 92 Ind. 388, 390; State v. Daly, 175 Ind. 108, 111, 112, 93 N. E. 539; Cain v. State, 36 Ind. App. 51, 54, 74 N. E. 1102; Equitable S. Co. v. Taylor, 71 Ind. App. 382, 385, 121 N. E. 283; State v. Johnson, 21 Ind. "Adverse possession" consists in the actual, open, notorious, exclusive, and continuous possession of lands under a claim of right. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Adverse Possession.] 3. Adverse possession 100(1)-Construc tive possession may suffice as predicate for obtaining title when there is color of title. Constructive possession may suffice as predicate for obtaining title when there is color of title, but such possession is not effective, in the absence of such color of title. 4. Adverse possession 491/2-Payment of taxes for full statutory period held not sufficient to prevent running of statute. That owner of land against whom defendants claimed adversely for full statutory period had paid taxes from time to time on part of the tract claimed adversely held not sufficient to prevent running of statute of limitations. Appeal from Circuit Court, Porter County; H. H. Loring, Judge. App. 313, 314, 52 N. E. 422. If the bond is not filed in time, nothing else that may be done toward perfecting an appeal will give Action by the New York Central Railroad the court power to acquire jurisdiction by Company against Charles Swanson and othaccepting a bond subsequently offered for ers, who interposed a cross-complaint. Judg filing. Crumley v. Hickman, 92 Ind. 388, ment for plaintiff, and defendants appeal. 390. Reversed, with instructions to grant new trial. [7] The statute under which the circuit court assumed to act (chapter 143, supra) Kelly & Loomis, of Valparaiso, and Owen expressly provides, in section 4, that the S. Boling, of Indianapolis, for appellants. judgment of the circuit court on appeal there- John A. Gavit and Bernard C. Gavit, both to "shall be final, and no appeal shall lie of Hammond, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 149 N.E.-23 NICHOLS, P. J. This is an appeal from a judgment rendered against appellants in an action to quiet title to certain real estate described in the amended complaint and cross-complaint; appellee basing its right of action upon the record title, and appellants as cross-complainants upon adverse possession. Appellee's amended complaint in one paragraph was answered by a general denial; appellant's cross-complaint in one paragraph, asserting title by adverse possession, by a general denial. [2] The rule is thus stated in Craven v. Craven, 181 Ind. 553, at page 557, 103 N. E. 333, 334: "It is well settled by the decisions of this and the Appellate Court that an occupant, who by mistake or by intention takes actual, visible and exclusive possession of another's land and holds the same for twenty years as his own, acquires a title in fee simple [citing authōrities]. tual, open, notorious, exclusive and continuous Adverse possession consists in the acpossession of lands under a claim of right. ** To prove a 'claim of right' oral declarations are not necessary. It may be inThe cause was submitted to the court for ferred from the manner of occupancy and positrial, resulting in a general finding and judg-tive acts of ownership, inconsistent with the ment in favor of appellee and against the appellants. Appellants' motion for new trial was overruled. This ruling of the court is assigned as the only error. [1] At the trial it was stipulated and agreed that, while appellee had the record title, the question to be litigated in the trial of the cause was to be whether or not the possession of appellants had been of such a nature as to ripen into title to the real estate described in appellants. It appears by the undisputed evidence that Charles Swanson, the father of appellants, built a fence around the tract involved in 1873, in the exact location where the fence is now. He maintained the fence continuously thereafter. The land was first used for pasture, but afterward he grubbed and cleared it and farmed it. There was corn, wheat, millet, and potatoes raised on it. The land, or a part of it, did not produce very good crops, and was used more for pasture for horses and cattle. Swanson ditched the land, repaired the fence from time to time, and farmed it every year after 1873 until his death in 1906, after which time it has been occupied adversely by appellants. Under these undisputed facts the rule that must control is thus stated in Roots v. Beck, 109 Ind. 474, 9 N. E. 698: "An open, notorious, exclusive, uninterrupted, and adverse possession, continued for the period of twenty 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"-citing authorities. This authority has been repeatedly cited by this court and the Supreme Court, always with approval. ownership of the true owner, and from erect- * To the same effect see Abel v. Love (Ind. App.) 143 N. E. 515. [3] Appellee relies upon Philbin v. Carr, 75 Ind. App. 560, 129 N. E. 19, but in that case, without color of title, there was no actual possession such as here. The court was discussing only a claim of constructive possession, without color of title, and it is thus readily distinguished from this case and the cases cited above, where there was actual possession. Where there is color of title, constructive possession may suffice, but not so where there is no color, of title. Worthley v. Burbanks, 146 Ind. 539, 45 N. E. 779. [4] The fact that appellee had paid the taxes from time to time on the 80-acre tract of which the land in controversy was a part is not such a challange of appellants' title under the circumstances of this case as to prevent the running of the statute of limitations. Judgment reversed, with instructions to grant a new trial. (149 N.E.) WILLIAMS v. HUME. (No. 12081.) upon the land, and along certain of its boundaries, and, believing that the 18.43-acre (Appellate Court of Indiana, Division No. 1. tract south of the ditch was in addition to Nov. 6, 1925.) I. Fraud 13(2)-Party making false state- Where false representations were made by plaintiff as to acreage of property, such representations, being material representations collateral to the title, were not merged in a warranty deed, and purchaser was not limited to a suit on the covenants of warranty in the deed, but could sue for deceit. the 140.5 acres named in his deed as the size of the farm, appellant represented to the agents of appellee that the farm, as shown by a recent survey, actually consisted of 158 acres, though described in the deed by which the land had been conveyed to him as 140.5 acres more or less; that appellant, at the time, also represented to appellee's agents that the farm had a frontage of one-third of a mile on the new channel of the Kankakee river; that in truth and in fact the farm, including the 18.43 acres, consisted of 140.5 whatever on the new channel of the river; acres and no more, and had no frontage that the representations as to the number of acres and the river frontage were false, and were made by appellant to the agents of appellee with the intention that appellee act thereon; that at the time appellant made the representations he believed them to be Appeal from Circuit Court, Lake County; true, though by the exercise of reasonable E. Miles Norton, Judge. care he might have learned of their falsity; that appellee did not know that the representations were false, but believed them to be true, and in exchanging his real estate for appellant's relied upon the representations as statements of fact; that on January 8, 1923, a contract was entered into between appellant and appellee for the exchange of their respective properties, the contract having been made by appellee in reliance upon the representations made by appellant to appellee's agents, and by them reported to appellee; that the contract referred to appellant's land as 158 acres, more or less, with a frontage of about one-third of a mile on the Kankakee river; that on February 17, 1923, pursuant to the contract, the parties completed the deal by exchanging deeds of conveyance, and appellant's deed, like the contract, contained a recital that the farm consisted of 158 acres, more or less, REMY, C. J. This action was commenced by appellant against appellee to recover amount alleged to be due on a promissory note given by appellee as part consideration of a contract for exchange of real estate. In addition to an answer in denial, appellee filed a counterclaim for damages for alleged fraudulent representations as to the number of acres and the boundaries of the land conveyed by appellant in making the exchange. On the trial, the court, at appellant's request, and bordered on the Kankakee for a disfound the facts specially, stated its conclusions of law to the effect that appellee was entitled to recover on his counterclaim the sum of $1,591.44, and rendered judgment accordingly. The only question presented by this appeal is that the court erred in its conclusions of law. tance of about one-third of a mile; that, had the farm consisted of 158 acres, and had it been located as represented, it would have been more valuable; and that the misrepresentations of appellant "worked a fraud” upon appellee, by reason of which he was damaged in the sum of $5,838.75; that the amount of the note sued on, including attorney's fees, is $4,247.31; and that the difference between these sums is $1,591.44. Facts found by the court are in substance: On January 7, 1923, appellee was the owner of certain real estate in the city of Chicago, [1] It is earnestly contended by appellant and appellant the owner of a farm of 140.5 that the facts found by the trial court do not acres located in Lake county, Ind., on which constitute actionable fraud, for the reason date two agents representing appellee ac- that there is a finding that at the time the companied appellant to his farm for the pur-representations were made appellant believed pose of making an inspection thereof; that the same to be true. We do not concur in 18.43 acres of appellant's farm lay south of this view. Not only did the court find that a certain ditch; that on the day named ap- appellant believed that his representations as pellant, with the agents of appellee, went to the acreage and the location of the farm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "False and fraudulent representations upon the sale of real property may undoubtedly be ground for an action for damages, when the representations relate to some matter collateral to the title of the property and the right of possession which follows its acquisition, such as the location, quantity, quality and con To the same effect, see Bianconi v. Smith (1892) 3 Ariz. 326, 28 P. 881. Affirmed. were correct statements of fact, but the "A defendant who makes a statement of his own knowledge cannot escape liability upon the ground that he acted upon trustworthy information. An unqualified statement that a fact exists, made for the purpose of inducing another to act upon it, implies that the person who makes it knows it to exist, and speaks from his own knowledge. If the fact does not exist, and the defendant states of his own knowledge that it does, and induces another to act upon his statement, the law will impute to him a fraudulent purpose." We hold that the facts found by the trial court are sufficient to constitute actionable fraud. [2] It is next urged by appellant that the representations made by him were, at the consummation of the transaction, merged in the warranty deed, and that appellee's remedy, if any, is limited to a suit on the covenants of warranty. If appellant is right in this statement, appellee has no adequate remedy, for an examination of the deed reveals that it contains no warranty that the farm contains more than 140.05 acres, and no warrant that it borders on the new channel of the Kankakee for a third of a mile. Appellee's rights, however, are not limited to a suit on the covenants of warranty. This is not a suit where the representations were as to the vendor's title. The representations of appellant were as to matters collateral to the title of the real estate. In such a case, the United States Supreme Court, in Andrus v. St. Louis Smelting, etc., Co. (1888) 130 U. S. 643, 9 S. Ct. 645, 32 L. Ed. 1054, correctly states the law to be: SEIFERS v. MOORE et al. (No. 12257.) (Appellate Court of Indiana, Division No. 1. Nov. 5, 1925.) 1. Appeal and error 840(1)-Court of Appeals without authority to pass on ruling of state tax board. Court of Appeals, in suit to enjoin sale of bonds issued by school township, will only review and pass upon rulings of nisi prius court, and hence was without authority to pass on ruling of state tax board overruling petition withdrawn from original petition presented to asking that names of certain petitioners be trustees for erection of a high school which, Trustee held entitled to establish a joint high school and elementary school in school township, in view of Burns' Ann. St. Supp. 1921, § 6584b, where amount of taxable property in township was above $1,250,000, and there was no high school in such township or in any town therein, and petition with onethird or more of signatures of parents thereto had been executed. 3. Schools and school districts 42(2)—` Trustee held entitled to establish joint high school and elementary school, notwithstanding that city containing high school was located in civil township which contained school township. Trustee of school township held authorized to establish a joint high school and elementary school therein on compliance with Burns' Ann. St. Supp. 1921, § 6584b, notwithstanding that a city containing a high school was located in the civil township which contained such school township, where such city, when incorporated, was segregated from school township so far as schools were concerned, and they became separate school corporations. Appeal from Superior Court, Tippecanoe County; Fred N. Pross, Judge. Suit by John W. Seifers against Frank S. Moore and others. Judgment for defendants, and plaintiff appeals. Affirmed. |