Stilz et al. v. The City of Indianapolis et al.

annexation; and, in view of the statute regulating city taxation, the theory is untenable. Taxes can be levied by virtue of statutory authority, and not otherwise. The general power of the city to tax property is found in the 58th section of the act for the incorporation of cities, 1 R. S. 1876, p. 297, which declares that the common council shall have power to levy and cause to be assessed and collected in each year an ad valorem tax of not more than one per centum on all property subject to State and county taxation within such city; and that there may also be levied and collected annually an additional tax to pay the interest on the public debt owing by such city.

The only reasonable construction of the powers thus given is, that all property in the city, subject to State and county taxation, except where a different provision is made by statute, must be taxed at a uniform rate for general city purposes, and for the payment of interest on the public debt of the city. Where there is no specific provision in the statute for the payment of the principal of the debt, it is necessarily chargeable on the general revenue of the city.

The circuit court did not err in sustaining the demurrer to the second paragraph of the complaint, and its judgment ought to be affirmed.

PER CURIAM.-It is therefore ordered, on the foregoing opinion, that the judgment below be and it is hereby in all things affirmed, at the costs of the appellants.

ON PETITION FOR A REHEARING.

BEST, C.-The appellants file a petition for a rehearing, and in support of it insist, first, that the act of March 13th, 1877, mentioned in the principal opinion, repealed by implication the act of 1872, under which the taxes of 1876 were assessed; second, that the city has no power to assess any taxes upon the land in the complaint mentioned, to pay any portion of the debts of the city contracted before the appellants' land was annexed to the city; and, third, that the taxes

Willson v. Binford, Administrator.

of 1877 were assessed in pursuance of the act of 1872, after the act of 1877 went into force.

We adhere to the decision of the first question as announced in the main opinion, and this conclusion necessarily determines the others against the appellants. As the assessment of 1876 was, for aught that is averred, a valid assessment, and was not paid at the commencement of this suit, it follows that the appellants were not entitled to an injunction, though the city was not authorized to assess any taxes upon the land for the payment of debts incurred before the land was annexed, and though the taxes of 1877 were erroneously assessed. Brown v. Herron, 59 Ind. 61; City of South Bend v. University of Notre Dame, 69 Ind. 344; Mesker v. Koch, 76 Ind. 68.

An injunction can not be granted if any of the taxes a-sessed are legal and remain unpaid. The petition should be overruled.

PER CURIAM.-The petition is overruled.

No. 8811.

WILLSON v. BINFORD, ADMINISTRATOR.

SUPREME COURT.-Practice.-Second Appeal.--Where a judgment has been reversed and the cause remanded to the court below, and from the proceedings there had a second appeal is taken, such appeal brings before the Supreme Court, for review and decision, nothing but the proceedings subsequent to the reversal; and none of the questions presented and decided on the first appeal can be re-heard or re-examined on the second appeal. PROMISSORY NOTE.-Mortgage on Real Estate.-Suit by Assignee against Indorser.-Due Diligence.--Insolvency of Maker.--Defences.--Under section 5504, R. S. 1881, the assignee of promissory notes, not payable to order or bearer in a bank in this State, and secured by mortgage on real estate, having used due diligence in the premises, or where, by reason of the insolvency of the maker of the notes, due diligence would have been unavailing, may have his action against his immediate or any remote in

Willson v. Binford, Administrator.

dorser of the notes, for ary balance due or to become due thereon after the sale of the mortgaged premises; and it is no defence to such action that the mortgaged premises depreciated in value between the time when the assignee might have enforced, and the time when he did enforce, the sale of said premises. SAME.-Assignor's Contract.--Sale of Mortgaged Premises.--Application of Proceeds.-The contract of the assignor or indorser of a promissory note, negotiable under the statute of this State, but not governed by the law merchant, is a warranty that the maker is liable on the note and able to pay it. Upon the sale of mortgaged premises, the proceeds of the sale shall be applied, under section 639 of the civil code of 1852 (sec. 1104, R. S. 1881), first to the payment of the principal due, interest and costs, and then to the residue secured by the mortgage and not due; and an answer of the assignor, seeking a different application of the proceeds of sale from that prescribed in the statute, is bad on demurrer for the want of facts.

SAME.-Want of Diligence.-Notes not Due.--The assignee's failure to use due diligence in the prosecution of his judgment against the maker upon the notes then due, is no defence in the suit against the assignor upon the notes which afterwards became due.

SAME.-Assignment of Mortgage Notes.--Judgment of Foreclosure.--Merger.--In the judgment recovered by the assignee of notes secured by mortgage, against the maker thereof, for the foreclosure of the mortgage, there is no merger of the assignor's contract of assignment.

From the Montgomery Circuit Court.

G. W. Paul, J. E. Humphries, S. C. Willson, L. B. Willson, J. E. McDonald and J. M. Butler, for appellant.

A. D. Thomas, C. L. Thomas, P. S. Kennedy and W. T. Brush, for appellee.

Howk, J.-This is the second time this cause has been before this court. The opinion and judgment of the court, on the first appeal, are reported under the title of Binford, Adm'r, v. Willson, 65 Ind. 70.

It appears from the record that, on March 10th, 1870, one Cornelius Blair executed ten promissory notes, of that date, each in the sum of $230, payable respectively in one, two, three, four, five, six, seven, eight, nine and ten years after date, to the order of the appellant Willson, and secured by mortgage on real estate. These notes were endorsed by the appellant to the appellee's intestate. When the first four of

Willson v. Binford, Administrator.

the notes had become due and were unpaid, in a suit for that purpose, the appellee obtained judgment thereon, and for the foreclosure of said mortgage. Subsequently, the mortgaged premises were sold by the sheriff, under an order of sale issued on said judgment, for a sum less than the amount adjudged to be due on the first four notes, and the proceeds of said sale were applied to the payment of the first four notes, and leaving the last six notes, and each of them wholly unpaid.

On the 9th day of April, 1877, the fifth, sixth and seventh of said notes being then past due, the appellee commenced this suit against the appellant, as the assignor of said three notes, in a complaint of three paragraphs. In each paragraph he counted upon the appellant's assignment by endorsement of a separate note. The appellant's demurrer to appellee's complaint, for the alleged insufficiency of the facts therein to constitute a cause of action, was sustained by the court, and judgment was rendered accordingly. From this judgment the first appeal was prosecuted; and the only question then presented for the decision of this court was the sufficiency of appellee's complaint. Upon this question, the court then said:

"The complaint did not aver that execution had been issued and returned 'no property found' on the amounts, severally, which it was found in the decree of foreclosure would become due at stated periods (see 2 R. S. 1876, pp. 263, 264, secs. 635, 636, 637 and 639; Skelton v. Ward, 51 Ind. 46); but it did aver the utter insolvency of the maker of the notes at, before and after such stated periods or times, as an excuse for not causing such issues of execution, etc. This was sufficient. Reynolds v. Jones, 19 Ind. 123; Roberts v. Masters, 40 Ind. 461; Markel v. Evans, 47 Ind. 326." Binford v. Willson, supra. The judgment was reversed, and the cause was remanded, with instructions to overrule the demurrer to the complaint.

Willson . Binford, Administrator.

After the cause was remanded, on the 25th day of November, 1879, the appellee filed a supplemental complaint, in three paragraphs, in which he declared separately upon the appellant's assignments by endorsement of the last three notes, maturing respectively in eight, nine and ten years after date. The cause was then put at issue, and tried by the court, and a finding was made for the appellee, assessing his damages in the amount found due on said several notes. Over the appellant's motion for a new trial, and his exception saved, the court rendered judgment upon and in accordance with its finding.

In this court, the appellant has assigned, as errors, the decisions of the trial court, in overruling his demurrer to the original complaint, and in sustaining the appellee's demurrers to the second, third, fourth and fifth paragraphs of his answer, and in overruling his motion for a new trial.

On the former appeal of this cause, as we have seen, the original complaint was fully considered by this court, and held to be sufficient. The question as to the sufficiency of the original complaint can not, therefore, be regarded as an open one, and we must decline to give it any further consideration. Dodge v. Gaylord, 53 Ind. 365; Test v. Larsh, 76 Ind. 452.

In the second paragraph of his answer, the appellant alleged in substance, that when the first note secured by the mortgage became due, on March 10th, 1871, the fair cash value of the mortgaged premises was $3,000, and that the said premises were then an abundant security for the payment of all the ten notes and interest thereon; that if appellee's intestate had used proper diligence and foreclosed said mortgage at the first term of court after the first note became due as aforesaid, as she might have done, and sold the mortgaged premises, she would have realized therefrom, and had paid to her, the entire debt evidenced by the ten notes specified in said mortgage, and the interest thereon; that, instead of so doing, the appellee's intestate did not commence suit for the collection of said debt