Hall et al. v. Bunte. HALL et al. v. BUNTE. MECHANICS' LIEN-CONSTITUTIONAL LAW.-Article 36 of the code, on the subject of mechanics' liens, (2 G. & H. 298,) is not unconstitutional by reason of any defect in the title of the act of which it is a part, but may be construed as merely providing a remedy for the collection of a debt. APPEAL from the Marion Common Pleas. WORDEN, J.-This was an action by Bunte against Hall, (impleaded with others who decline to join in the appeal,) to enforce a mechanics' lien. Judgment for the plaintiff. The only ground on which a reversal is sought is that the statute giving the lien and authorizing the proceeding is void. It is argued that, at common law, a mechanic has no lien on a building for work and materials; that, if he have such lien, it must be given by statute. This proposition is probably correct. The statute giving the lien and providing for its enforcement is contained in 2 R. S. 1852, p. 181 et seq. This statute, it is insisted, so far as it undertakes to give a mechanic a lien on buildings, &c., is void, because the title of the act is not sufficient for that purpose. The title is as follows: "An act to revise, simplify and abridge the rules, practice, pleadings and forms in civil cases in the courts of this State; to abolish distinct forms of action at law, and to provide for the administration of justice, in a uniform mode of pleading and practice, without distinction between law and equity." 2 R. S. 1852, p. 27. The substance of the appellant's argument is, that there is a marked and clearly defined distinction between rights and remedies; that the title above set out purports to deal alone with remedies; and that as the Legislature, under that title, have undertaken to confer rights, viz: to acquire and hold a lien on buildings, &c., they have violated the constitutional requirement, that "every act shall embrace but one subject Hall et al. v. Bunte. and matters properly connected therewith, which subject shall be expressed in the title." Hence it is claimed that that part of the law giving the lien is void. During the decade of years that has passed since this statute was enacted it has always been regarded, in practice, as valid; its validity having been repeatedly recognized by this Court. Deming v. Patterson, 10 Ind. 251; Wasson v. Wasson v. Beauchamp, 11 Ind. 18; Ainsworth v. Atkinson, 14 Ind. 538; Green v. Green, 16 Ind. 253. There are, undoubtedly, other like cases in the forthcoming three volumes of reports, not published at the time of the preparation of this opinion.1 We think the law may be maintained on the principle that the lien is simply one of the means provided to enable the mechanic to collect his debt. This law does not give the mechanic the right to his debt, that he has without the statute in question; but it furnishes him this remedy for its collection. Regarding the statute as giving a remedy for the collection of a debt, rather than as conferring an independent right, it was properly enough "connected" with the matters enumerated in the title of the act." At all events the unconstitutionality of the statute is not so clear as to require or authorize us to overturn, it, especially after it has been so long acquiesced in generally, and acted upon as valid by this Court. The personal judgment against Hall for the debt, with an order for the sale of the premises in default of payment, is right. Deming v. Patterson, supra. Per Curiam.-The judgment below is affirmed, with costs and one per cent. damages. N. B. Taylor and Thos. A. Hendricks, for the appellants. W. P. Fishback and Barbour & Howland, for the appellee. (1) The other cases referred to are the following: Shattell v. Woodward, 17 Ind. 225; Millikin v. Armstrong, id. 456; Waldo v. Walters, id. 534; Waldo v. Richter, id. 634; Simonds v. Buford, 18 Ind. 176; Wade v. Reitz, id. 307. VOL. XX.-20 Simpson v. Shafer. COLERICK v. RHOADS. APPEAL from the Allen Circuit Court. Per Curiam.-This cause was dismissed in the Circuit Court, where it was pending on appeal, because there was no judgment rendered before the justice. The transcript shows that a judgment was rendered. Reversed with costs; cause remanded for further trial. SIMPSON v. SHAFER. APPEAL from the Henry Common Pleas. Per Curiam.-The record in this case contains the evidence. On the question of usury there is no conflict and the evidence is conclusive that an amount of usurious interest was paid, which should be taken out of the note sued on. There can be no doubt on this point. The plaintiff below offered, at one time, to remit 60 dollars, but afterwards withdrew the offer. If the plaintiff below will remit that amount in this Court the judgment will be affirmed, with costs of this Court taxed to the appellee, the costs below to the appellant, the defendant below. If the plaintiff below will not remit the above amount, the judgment will be reversed with costs, and the cause remanded for another trial. Mellett, Martindale & Grubbs, for the appellant. Ray v. McMurtry. RAY v. MCMURTRY." ESTOPPEL.-Where the maker of a promissory note is inquired of by a person who has already purchased the note, as to its validity, and answers that the note is all right, and that he will pay it, and that he was glad the purchaser had become the owner of it because he was able to give him more time, and that he would pay him ten per cent, interest if he would wait on him, and that the note was secured by mortgage, and the purchaser agreed to and did wait on him for an indefinite time, and until his assignor became insolvent, in consideration of the increased rate of interest, such facts do not estop the maker to contest the validity of the note or to set up a failure of the consideration thereof. APPEAL from the Parke Common Pleas. PERKINS, J.-On the 3d of March, 1860, George A. McKinstry executed his note for 210 dollars to Jerome Ellis. Afterwards, Jerome Ellis assigned the note by indorsement to Andrew Ray, the plaintiff. Ray commenced this suit by a complaint in the usual form, alleging the execution and assignment of the note, &c. The defendant answered, admitting the execution and assignment of the note, but averring that he gave the note to Ellis, the payee, for the last payment upon the purchase of a tract of land; that at the time of the execution of the note, said Ellis made to him, McMurtry, a deed for the land so purchased, with full covenants, &c., (making the deed a part of his answer); that these covenants had been broken; and that he had been compelled to, and had paid an outstanding mortgage, executed by Ellis himself to one John Swain, upon the land purchased, amounting to a fraction over 200 dollars, which he set up by way of set-off, counter-claim, failure of consideration, &c. The plaintiff, admitting the validity of the answer, as a de 20 307 131 276 Ray v. McMurtry. fence, sought to avoid it. He replied that he, Ray, purchased the note, and took the assignment of it from Ellis, a short time after it was executed, and that in a few days after he had become the assignee of the note he called on McMurtry, the defendant, and informed him of the fact of the assignment of the note; that the defendant said that it was all right; that he should pay the note; that he was glad the plaintiff had got the note, because he was able to wait on him; that he would pay him ten per cent. interest if he would wait on him; that the mortgage on the land mentioned in the answer was not recorded, but that the defendant knew of its existence whilst the plaintiff did not; that under the circumstances the plaintiff gave the defendant time till Ellis became insolvent, &c. The plaintiff replied to the foregoing facts by way of estoppel upon the defendant to set up the payment of the mortgage to Swain in bar of so much of the suit of the plaintiff' upon the note. The Court below held that there was no estoppel, and the correctness of that ruling is the only point presented in the case. Do the facts stated in the reply estop the defendant to avail himself of the payment upon the mortgage to reduce the amount to be otherwise recovered by Ray upon the note? The estoppel contended for is called an estoppel in pais, and arises upon some word, act, or representation of a party touching a matter of interest, made under circumstances putting the party in fault, whereby another party, without negligence on his part, is induced to act in the belief that a given state of facts exists; and when he has so acted the party inducing such belief and consequent action, shall not dispute the existence of the believed state of facts to the prejudice of the pecuniary interests of the party who has acted upon it. |