105 380 124 342 105 380 143 491 105 380 161 390 Lockwood v. Ferguson. causes of action so inconsistent, involving the same transaction, but, however that may be, the evidence was properly admitted. All the other points which are properly presented by the record, and discussed by counsel, are covered by what has already been said. The case of Shubert v. Stanley, 52 Ind. 46, relied on by the appellant, is not applicable here. As the facts make it appear, this is the case of a mortgagor in possession. Under the statute and the decisions already referred to, he has the right to remain in possession as against the mortgagee, until his equity of redemption is foreclosed and sold, and the purchaser's right to possession matures in the regular course. We have discovered no error in the record. The judgment is accordingly affirmed, with costs. Filed Feb. 16, 1886. No. 12,306. LOCKWOOD v. FERGUSON. DRAINAGE.-Surveyor's Certificate to Contractor.-Must be Collected as Other Taxes.- Personal Action Against Owner will not Lie.—An action will not lie against the owner of land, whether a resident or non-resident, for the recovery of the amount of a certificate executed by the county surveyor to a contractor for the construction of a section of ditch, pursuant to section 4305, R. S. 1881, or for the enforcement of the lien thereby given; but it is the duty of such surveyor to file a copy of the certificate with the county auditor, to be charged and collected as other taxes. From the DeKalb Circuit Court. W. L. Penfield and H. J. Shafer, for appellant. J. E. Rose, for appellee. Howк, J.-The controlling question in this case arises under the alleged error of the circuit court in overruling appellant's demurrer to appellee's complaint. Lockwood v. Ferguson. In his complaint appellee Ferguson declared upon a written certificate executed to him, as alleged, by the surveyor of DeKalb county, of which the following is a copy: "AUBURN, IND., Nov. 1st, 1884. "This certifies that I, the undersigned, surveyor of DeKalb county, Indiana, have examined the allotment of Alonzo Lockwood, on the James Carnahan drain, from stake 56.50 to stake 75, and find the same fully completed, according to specifications of said ditch. Amount due John D. Ferguson, for the performance of the above ditch, $366.80. 66 (Signed) J. JAY VANAUKEN, Surveyor." It is shown by the averments of the complaint, that this certificate was executed to the appellee Ferguson under and pursuant to the provisions of section 4305, R. S. 1881, in force since September 19th, 1881; and such other facts were stated by appellee as would have constituted a good cause of action, if a personal action could be maintained, in any case, upon such a certificate. The first point made by appellant's counsel, in discussing the alleged insufficiency of appellee's complaint, is, that a personal action can not be maintained by the contractor for the recovery of the money due him under the surveyor's certificate. Appellant's counsel insist that appellee has mistaken his remedy, and that he can only secure the collection of the money due him, under such certificate, by procuring the county auditor to charge the amount thereof on the tax duplicate against appellant's land, to be collected as other taxes are collected. On the other hand, appellee's counsel vigorously insists, that section 4305 provides for two classes of cases, where the share or allotment has been sold to a person not the owner of the land assessed therefor, as follows: 1. Where the owner of the land assessed is a resident of the county; and 2. Where the owner of the land assessed is a non-resident of the county. As to the first class, it is claimed by appellee's counsel, that the statute makes the sum specified in the surveyor's certificate, "due and payable immediately by the Lockwood v. Ferguson. owner of the land," and provides that "such certificate, if not paid on demand, shall draw interest until paid." As to the second class, appellee's counsel claims that the statute make it the duty of the county surveyor, only as to that class, to file a copy of his certificate with the county auditor to be entered by him on the tax duplicate, and collected as other taxes are collected, together with six per cent. after the same became delinquent. Finally, it is claimed on behalf of appellee, that as appellant was a resident of DeKalb county, and as the statute made the amount mentioned in the surveyor's certificate the personal debt of the appellant to the appellee, due and payable immediately, the appellee can maintain a personal action against the appellant for the recovery of such personal debt. These questions were considered by this court in the recent case of Storms v. Stevens, 104 Ind. 46, and it was there held substantially that an action would not lie against the owner of the land, whether a resident or non-resident, for the recovery of the sum expressed in the certificate, executed by the county surveyor to the contractor for the construction of a section of a ditch, pursuant to the provisions of section 4305, or for the enforcement of the lien thereby given. It was further held to be the duty of the county surveyor to file copies of his certificates, executed as aforesaid, with the county auditor, whether the land-owners were resident or non-resident, and the duty of the county auditor to charge the sum expressed in any such certificate on the tax duplicate against the proper land-owner, to be collected as other taxes are collected. Upon the authority of the case cited, it must be held in the case in hand that the appellee can not maintain his action, and that it was error to overrule the demurrer to his complaint. The judgment is reversed with costs, and the cause is remanded with instructions to sustain the demurrer to the complaint. Filed Feb. 13, 1886 Campbell v. Maher. No. 12,093. CAMPBELL v. MAHER. ARGUMENT OF COUNSEL.-Comments on Change of Venue.-Misconduct Justifying Reversal of Judgment.-Repeated comments of counsel for the defendant, in argument to the jury, sanctioned by a ruling of the trial court, on the fact that the plaintiff had taken a change of venue, is such misconduct as will justify a reversal, unless it appears that no harm resulted. SAME.-The argument of counsel to the jury must be confined to the law and the evidence. From the Pike Circuit Court. G. G. Reily and W. C. Niblack, for appellant. ELLIOTT, J.-In the course of his argument to the jury the counsel for the appellee said: "The record in this case shows that the plaintiff was not willing to try this case at his home in Daviess county, among his neighbors, but has brought the case to Pike county on a change of venue, among strangers." The appellant objected, and the court, as the record recites, "remarked that it was not improper for counsel to refer to matters which were disclosed by the record, since the whole record was before the jury, but that the argument of counsel had gone too far, and should be limited to the record." What followed is thus exhibited in the record: "And thereupon counsel for the plaintiff resumed his seat, and the counsel for the defendant again turned to the jury, and, resuming his argument, said: "The court says I may refer to the record. Gentlemen, the record of this case shows that the cause was brought from Daviess county to this county on the motion of the plaintiff.' To which statement the plaintiff's counsel again objected, and again assigned in support of his objection the reasons assigned by him in support of the objection to argument of defendant's counsel herein above set out, but the court overruled said objection, to which the plaintiff's counsel excepted, whereupon the defendant's counsel again turned to the jury and said: 'Gentlemen of the jury, I have only stated to you what the record in this cause shows 105 383 127 497 105 383 134 344 105 383 137 353 105 383 160 440 Campbell . Maher. to be true, and the court has decided that I have a right to do this."" The trial court was unquestionably wrong in ruling that everything that appears in the record is the subject of argument to the jury, for there are many things which the record discloses that the jury have no right to consider. Juries, as every one knows, are sworn to try the case "according to the law and the evidence," and an argument must be confined to the evidence and the law. Where a party secures a legal right according to law, the fact that he has secured it can not be used to his prejudice. A change of venue is a legal right, and where it is awarded by the court in conformity to law, it can not be used to the prejudice of the party by whom it was obtained, nor can it be commented on in argument. It would be a perversion of law to permit the exercise of a legal right, under the order of the court, to be made the subject of consideration by a jury. We need not, however, discuss this question further, for it is settled against the appellee by authority. Farman v. Lauman, 73 Ind. 568. The comments of counsel were not mere general, fugitive statements, but they were reiterated, and they were also sanctioned by the ruling of the court, so that there was a deliberate and emphatic presentation of an improper subject to the jury, and unless we can ascertain from the record that no harm resulted, we must reverse. The record does not enable us to declare that the appellant was not injured, for the case is a close one upon the evidence, and we can not say that the misconduct of the appellee's counsel did the appellee no injury. There are cases where a reversal will not be adjudged, although there is some misconduct in argument. Shular v. State, ante, p. 289, and authorities cited; "Misconduct of Counsel in Argument," 14 Cent. L. J. 406. This is not such a case. Judgment reversed. Filed Feb. 17, 1886. |