SPECIAL VERDICT.
See SUPREME COURT, 9; VERDICT.
SPECIFIC PERFORMANCE.
1. Contract for Sale of Land.-Complaint.-Title of Deceased Vendor.-A com-
plaint against the heirs of a deceased vendor, for a specific perform-
ance of his parol contract, need not allege that the ancestor had any
title to the property which he agreed to convey. Cottrell v. Cottrell, 87
2. Title Bond.-Contract.- Mistake.-Statute of Limitations.- Waiver.- Ven-
dor and Purchaser.-Suit to compel a conveyance according to the con-
ditions of a title bond. Cross complaint averring that the purchase-
money was unpaid, alleging that a recital in the bond of payment was
a mistake, and that the purchaser and her assignee were in possession,
praying for a correction of the mistake, that an account be taken of
the purchase-money due, and on payment that a conveyance be made
by a commissioner, and for general relief. Answer to the cross com-
plaint, the statute of limitations.
Held, that the cross complaint was good on demurrer, and the answer bad.
Held, also, that plaintiff, by suing for specific performance, waived the statute.
Hamilton v. Plaut, 417
3. Same.-Estoppel.-The recital of payment in a title bond for a deed for
the purchase of real estate does not estop the obligor from averring, in
a suit for a deed, the non-payment of the purchase-money.
Ib.
SPOLIATION.
See PROMISSORY NOTE, 6.
STATE-HOUSE COMMISSIONERS.
State-House.-Statute Construed.-The new State-House is, by the act of 1877
(Acts 1877, Spec. Sess., p. 68), required not to cost for its construction
more than $2,000,000, but this does not include incidental expenses,
such as salaries, travelling expenses of the board and rents; and the
board has authority to expend that sum for construction alone.
Board, etc., v. Whittaker, 297
See CONSTITUTIONAL LAW, 2, 3, 4; COUNTY CLERK, 2, 3; CIRCUIT COURTS;
CRIMINAL LAW, 1, 8, 12; ELECTIONS; FEES AND SALARIES; JUDG-
MENT, 1; MARRIED WOMAN, 1, 3; PRACTICE, 3, 4; RECOGNIZANCE, 3;
SHERIFF'S SALE, 5; STATE-HOUSE COMMISSIONERS: TAXES, 15; TURN-
PIKE COMPANY, 4; VENDOR AND PURCHASER, 1; WILL, 4.
See CONTRACT, 1, 2; MORTGAGE, 2; REAL ESTATE, ACTION TO RECOVER, 2, 4.
Contract for Purchase of Real Estate.-Description.-Presumption.-A contract
recited that "The parties of the first part having conveyed certain
lands" (not described, except in a certain township and county in
Indiana), “in part, agree to have the same completed within twenty
days, or pay to the parties of the second part $500; and the parties of
the second part agree to comply with the contract on completion of the
deeds, or pay to the parties of the first part $500."
Held, in an action thereon, that the agreement was within the statute of
frauds, the land not being so described as to be capable of identifica-
tion, and the presumption being that the contract referred to was in
parol.
Pulse v. Miller, 190
See COUNTY CLERK, 4; CRIMINAL LAW, 19; GUARDIAN AND WARD, 4;
LIQUOR LAW, 3; SHERIFF'S SALE, 11; SPECIFIC PERFORMANCE, 2;
TAXES, 10 to 12; TOWNSHIP TRUSTEE, 2, 3.
STENOGRAPHER.
See BILL OF EXCEPTIONS, 2.
Sheriff's Return.-A sheriff's return to process can not be set aside on motion
supported by proof that it is false. It can not be thus contradicted.
Johnston Harvester Co. v. Bartley, 406
See CRIMINAL LAW, 19; LIQUOR LAW.
SUPERIOR COURTS.
See CONSTITUTIONAL LAW, 4.
1. Superior Court of Marion County.-Special and General Term.-Appeal to
Supreme Court.-Assignment of Errors.-An appeal will not lie to the
Supreme Court from a judgment of the Marion Superior Court at spe-
cial term, but only from the judgment of that court in general term.
Therefore, in such a case, the only proper assignment of error, on ap-
peal to the Supreme Court, is, that the superior court, in general term,
had erred in affirming or reversing, as the case might be, the judgment
of the court at special term.
Leary v. Smith, 90
2. Appeals from General Term.-Judgments of Reversal.-Under the provi-
sions of section 1362, R. S. 1881, appeals will lie to the Supreme Court
from judgments of superior courts in general term, reversing or modi-
fying judgments at special term, by any party who has had judgment
in his favor at special term.
Dubois v. Johnson, 520
See APPEAL; ARBITRATION AND AWARD, 3; ASSIGNMENT Of Error; At-
TACHMENT, 3; BILL OF EXCEPTIONS; CHATTEL MORTGAGE, 5; CON-
STITUTIONAL LAW, 2; COSTS; CRIMINAL LAW, 3, 16; DECEDENTS' Es-
TATES, 3; DIVORCE; EXECUTION, 4; JUDGMENT, 6, 7; NEW TRIAL,
2, 6, 7; PRACTICE, 3 to 6, 8 to 11; RAILROAD, 5; SHERIFF'S SALE, 7;
SUPERIOR COURTS.
1. Assignment of Error.-Dismissal.-After submission of a cause in the
Supreme Court, a motion to dismiss the appeal, for the reason that
the names of some of the parties are omitted in the assignment of er-
rors, will fail unless harm has resulted from the omission.
Wilson v. Heflin, 35
2. New Trial.-Unless the record elsewhere show the action of the court
complained of in a motion for a new trial, no question arises for the
decision of the Supreme Court. Washer v. Allensville, etc., T. P. Co., 78
3. Exception.-Harmless Ruling.—Where an exception was sustained but
not insisted upon in the trial court, and the party secured all the
right he was entitled to, this irregularity is not sufficient ground for
a reversal.
Louisville, etc., R. R. Co. v. Wunderlich, 105
4. Same.-Evidence.-New Trial.-A party complaining of the admission
of evidence must state his objections to the trial court, and except to
the rulings adverse to him; and if he desires to present a question
thereon in the Supreme Court, he must assign such rulings as cause
for a new trial, and point out with reasonable certainty the evidence
complained of.
Ib.
5. Weight of Evidence.-Where there is evidence in the record, which
tends to sustain the finding of the trial court on every material point
in issue, the Supreme Court will not disturb such finding on the weight
of the evidence.
French v. State, ex rel., 151
6. Same.--Bill of Exceptions.-Omission of Evidence.--Although the bill of
exceptions concludes with the formula, "this was all the evidence
given in the cause," yet if, on the face of the bill, there is an apparent
omission of evidence, the Supreme Court will not consider or decide
any question which depends, for its proper decision, upon the evidence
in the cause.
Ib.
7. Joint Assignment of Errors.-Where a joint demurrer by several to a
pleading is overruled, an assignment of error by each separately, that
the ruling was erroneous as to him, presents no question in the Su-
preme Court.
Towell v. Hollweg, 154
8. Same.-Complaint.-The sufficiency of a complaint against two defend-
ants can not be questioned for the first time in the Supreme Court as
to its sufficiency as against one only.
Ib.
9. Venire de Novo.-Special Verdict.--Harmless Error.-Where a special
verdict is defective, in that it fails to find all the facts necessary to
cover the issues, and yet the court below renders such a judgment as
would be proper only if the facts not found had been found as the ap-
pellant has averred them to be, in his pleadings, he can not complain
in the Supreme Court that a venire de novo was refused, the error being,
in the end, harmless as to him.
Harness v. Harness, 160
10. Dismissal.- Waiver.-Parties.-A motion to dismiss an appeal after
submission, on account of the non-joinder of a party defendant in the
appeal, and want of notice served, can not prevail; such objections
are considered waived by the submission. Easter v. Acklemire, 163
11. Practice.-Objection to Question.-Evidence. An objection to a question
put to a witness can not be made for the first time in the Supreme
Court.
Thompson v. Boden, 176
12. Conflicting Evidence.-Verdict.-Preponderance.-The Supreme Court will
not disturb a verdict which is supported by some evidence, however great
the preponderance may have been the other way. Davis v. Nicholson, 183
Highfill v. Monk, 203; Smith v. Bissell, 188; English v. State, ex rel., 455
13. Brief. Where no brief has been filed by the appellant in the Supreme
Court, the appeal will be dismissed.
Schwarm v. State, 247
14. New Trial.-Practice.-The Supreme Court will not reverse a judg-
ment for error in granting a new trial, unless it appears that the
action of the court has resulted in manifest injustice to the complain-
ing party.
Waddle v. Megee, 247
15. Same.-Newly Discovered Evidence.-Where a new trial was asked be-
cause of newly discovered evidence and for various other reasons, the
Supreme Court can not say that the trial court erred in granting such
motion, because it should not have been granted for newly discovered
evidence. The other reasons may have authorized the court to grant
the motion.
Ib.
16. Assignment of Error.-Where a complaint consists of more than one
paragraph, the sufficiency of a single paragraph thereof can not be
questioned for the first time in the Supreme Court.
Carr v. State, ex rel., 342
17. Immaterial Evidence.-Harmless Error.-A judgment will not be reversed
for error in admitting immaterial evidence, unless it is made to ap-
pear that the appellant was in some material respect probably injured
thereby.
Lovinger v. First Nat'l Bank, etc., 354
18. Harmless Error.- Where it affirmatively appears by the record of the
whole case that a judgment is right on the merits, it will not be re-
versed for harmless intermediate errors, such as giving instructions
as to the law of the case, or requiring a general verdict also where a
special verdict has been demanded.
Toler v. Keiher, 333
19. Record. Allowance to Clerk.—Where a county clerk presents a claim
for special services for a term of court, but offers no evidence in sup-
port thereof, and no finding is made that the services were rendered,
and the court refuses to allow the claim, no question is presented by
the record to the Supreme Court, on appeal. Ex Parte Mitchell, 399
20. Evidence.-Practice.-Where there is evidence in the record tending to
support the finding of the court below, the Supreme Court will not
weigh it to determine its sufficiency. Hackler v. State, ex rel., 430
21. Practice.-Waiver.-New Trial.-Reasons for a new trial covered by a
specification in an assignment of error, but not discussed, will be re-
garded by the Supreme Court as waived. English v. State, ex rel., 455
22. Evidence. Competency. The competency of evidence can not be objected
to for the first time in the Supreme Court.
Ib.
23. Harmless Error.-Evidence.-Error in admitting evidence, which it is
apparent could not have influenced the verdict, is not available in the
Supreme Court.
State, ex rel., v. Hawkins, 486
24. Appeal.- Parties.—Trust and Trustee.—Mortgage.--E., trustee of an ex-
press trust created by mortgage, obtained a judgment of foreclosure,
and then died. Afterwards the mortgagors appealed, making a party
appellee B., who was named in the mortgage as the successor of E. as
trustee in case of the death of the latter.
Held, that B. was properly made a party to the appeal. Losey v. Bond, 510
25. Reversal on Assignment of Cross Errors.-Practice.--Where the appellee
assigns cross errors occurring prior to those assigned by the appellant,
and all the errors assigned are found to exist, the judgment will be
reversed at the costs of the appellant.
Porter v. Reid, 569
25. 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.
Willson v. Binford, 588
See CONSTITUTIONAL LAW, 1; COUNTY AUDITOR; COUNTY Order, 1, 2;
EVIDENCE, 4; RAILROAD, 5, 6.
1. Tax Sale.-Description of Land Sold.--Enforcement of Lien.-When the
description of the certificate and deed of the real estate sold for delin-
quent taxes, is such as would enable a competent person to identify
and locate the particular land intended to be conveyed, it is sufficient
to entitle the purchaser to enforce a lien against the land for the prin-
cipal, interest and penalty of the sum paid by him. Sloan v. Sewell, 180
2. Same.--Imperfect Description.-The fact that land subject to taxation
is imperfectly described will not preclude the purchaser at the tax
sale from maintaining an action to enforce a lien against the land
intended to be listed and sold.
Ib.
3. Same.--Lien Where Owner Has Personal Property.-The fact, that the
owner of real estate sold for delinquent taxes had personal property
in the county subject to sale, will not prevent the purchaser from ob-
taining a lien on the land for the amount paid by him, including in-
terest and penalty.
4. Tax Sale.-Complaint to Enforce Lien.-A complaint to enforce a lien
against land sold for delinquent taxes for the amount paid by the pur-
chaser at a tax sale, which shows that the real estate owned by the
defendant was subject to taxation, was listed for taxes, was sold for
taxes, and purchased by the plaintiff, is sufficient to show that the sale
gave the plaintiff a lien for the money paid, and the penalty prescribed
by statute; it is not necessary to show a valid sale.
Parker v. Goddard, 294
5. Same.--Defective Description.-Lien.-Evidence.-Where in such case the
evidence shows that the land sold was owned by the defendant, was
intended to be listed, that the taxes paid by the plaintiff were intended
to be charged against that land, and that they should have been paid
by the defendant, a defective description of the real estate will not
defeat the lien.
Ib.
6. Complaint to Enjoin Execution of Deed for Land Sold.-A complaint
to enjoin a city treasurer from executing a deed for real estate sold for
taxes, which avers that the owner of the property, at the time of the
sale, had sufficient personal property in the county out of which the
tax could have been collected, is good on demurrer.
Morrison v. Bank of Commerce, 335
7. Same.-Sale of Real Estate, When Owner has Personal Property.-A sale of
real estate for taxes, while the owner has sufficient personal property
out of which the taxes could have been satisfied, is void.
8. Same.-Agreement to Bid Jointly at Tax Sale.-Public Policy.-Fraud.-
An agreement made between two or more persons to bid jointly upon
property at a tax sale, if not made to prevent bidding, for the purpose
of protecting their own interests, is not fraudulent in law, and will
not vitiate such sale.
9. Same.-Judgment Lien-Holders May Purchase.-When one holds a judg-
ment lien upon real property offered for sale for taxes, he has the right
to pay the taxes, but this right does not impose upon him the duty to
pay them, nor does it prevent him from acquiring title to such property
by purchase at such tax sale.
Ib.
10. Invalid Tax Sale Lien.-Statute of Limitations.-The right of a purchaser
at an invalid tax sale to enforce a lien against the land is barred by
the lapse of fifteen years, not by the five years limitation prescribed
in the 250th section of the assessment law, for an action to recover
the land itself. 1 R. S. 1876, p. 127.
Brown v. Fodder, 491
11. Same. Subsequent Taxes.- Voluntary Payment.-When the right to en-
force a lien upon land for the amount bid at an invalid tax sale has
been lost by lapse of time, a subsequent payment of taxes on the land
will be deemed a voluntary payment, furnishing no cause of action,
and ineffective to restore the original right.
12. Same.- Pleading. Limitation.- Evidence.-When, under a complaint
in ejectment, the plaintiff seeks, under sections 256 and 257 of the
assessment law of 1872, Acts 1872, p. 119 (1 R. S. 1876, p. 129), to en-
force a lien for the amount of his bid at an invalid tax sale, the an-
swer of general denial admits proof of all defences, including the
statute of limitations.
Ib.
13. Tax Title.-Lien.-Auditor's Deed.-Action to Quiet Title.-Harmless E-
-Where a suit to quiet title is founded upon a purchase of lands
for taxes, and there is no evidence of such proceedings as authorize
a conveyance, there is no available error in refusing to admit the au-
ditor's deed in evidence, where the judgment rendered gives the plain-
tiff a lien for the taxes paid by him.
Langohr v. Smith, 495
14. Assessment.-Misnomer.--The fact that real estate is assessed for taxa-
tion in the name of a person other than the owner, does not invalidate
the assessment.
Stiltz v. City of Indianapolis, 582
15. Same-Cities and Towns.-Exemption of Property used for Agricultural
Purposes.-Statute Construed.-The act of March 13th, 1877, Acts 1877,
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