The appellant, it will be noticed, made no objections and took no exceptions whatever to any of the instructions given to the jury by the court. But he insists that the law as stated in the instructions requested and refused has been so well settled that the court necessarily committed error in refusing to give them. We think, however, that the instructions given by the court fully cover every proposition of law contained in those asked for and refused, unless it be that portion which seeks to impress upon the jury the notion that they have no right to infer from the circumstances surrounding the case and the parties that there was an undertaking to pay for the services, and that there must be direct proof of the contract itself; which portion, we think, is not good law, and was therefore properly rejected. The rule of law upon this subject has been so often stated that it would seem unnecessary to quote it again, if counsel did not insist upon a statement at variance with it. Where a father and his adult children live together as members of the same family, there is no implied undertaking on the part of either to pay for services; but such an undertaking may always arise, not only from an express contract, but it may be inferred from the surrounding circumstances. Hilbish v. Hilbish, 71 Ind. 27; Smith v. Denman, 48 Ind. 65; Webster v. Wadsworth, 44 Ind. 283; Daubenspeck v. Powers, 32 Ind. 43; King v. Kelly, 28 Ind. 89; Cauble v. Ryman, 26 Ind. 207; Adams v. Adams, 23 Ind. 50; Pitts v. Pitts, 21 Ind. 309; House v. House, 6 Ind. 60; Ox. ford v. McFarland, 3 Ind. 156; Resor v. Johnson, 1 Ind. 100. We think the instructions asked for and refused were substantially embraced in those given by the court, and the appellant has no just cause for complaint on this account.

Another ruling of which the appellant complains, and which he has properly presented here for review, is the eighth instruction given by the court. This instruction is predicated upon the theory that where services have been rendered under an agreement which does not fix any specified time for payment, or when the contract shall end, it would amount to one continuous contract, and the statute of limitation would not begin to run against any cause of action arising out of such agreement until the service had ceased. We are inclined to the opinion that this view of the law is correct. Littler v. Smiley, 9 Ind. 116; Taggart v. Tevanny, ante, 511, (at present term of this court.) The contention of the appellant's counsel that the application of this rule would conflict with the theory of the complaint has no foundation to stand upon. The plaint does not proceed upon the theory that each week's work is upon a separate and distinct agreement. It is a simple declaration upon a contract for work and labor from November, 1879, to November, 1888, at the rate of $3 per week. We do not think the court committed any error in giving this instruction. As these are all the errors which counsel for appellant discuss in their brief, we need not notice any others that may have been assigned. The judgment is affirmed, with costs.

com

(1 Ind. A. 105)

Lopp r. WOODWARD, Auditor. (Appellate Court of Indiana. April 4, 1891.) SCHOOL FUNDS - ACTION FOR DEFICIENCY - PAYMENT BY COUNTY.

By the provisions of Rev. St. Ind. 1881, § 4326, the several counties are made liable for so much of the public school fund as is intrusted to them, and the annual payment of interest thereon. By sections 4390, 5904, it is made the duty of the county auditor, when premises mortgaged to secure a loan of such funds fail to sell for a sum sufficient to satisfy the principal and interest, to bring suit on the notes in the name of the state. Held, that the county might pay the deficiency before the auditor brought suit.

Appeal from circuit court, Harrison county; WILLIAM T. ZENOR, Judge. John H. & E. B. Stotsenburg, for appellant.

ROBINSON, J. On the 28th day of December, 1875, appellant's intestate, Archibald Kemper, gave his note to the state of Indiana for the use of one of the congres sional townships, with a mortgage on 80 acres of land to secure $1,000, payable on December 28, 1880, with $ per cent. interest, payable annually in advance. The mortgage provided, on failure to pay the interest, the principal should become due, with 2 per cent. damages and cost. Kemper failed to pay the second installment of interest, and the county auditor, after proper advertisement, as required by statute, offered the land for sale at the court-house door, and, receiving no bid, he bid it in for the fund on the 25th day of March, 1878. Afterwards he had the land reappraised, and sold it on June 27, 1885, on a credit of five years, for $302. In the following year, 1886, the attorney general filed a claim against the county of Harrison for $698 before the board of commissioners, claiming the difference between the principal sum, $1,000, and the sum of $302, the amount for which the land sold, and at the June term, 1886, the county board allowed and paid same. Besides, the county board paid all the interest from December 28, 1876, at the rate of 8 per cent., amounting to about $800. Upon these facts the auditor of Harrison county filed a claim against Kemper's administrator, the appellant, and asked an allowance and judgment for the deficiency as above shown. The complaint was amended. A demurrer was filed thereto, and overruled, over appellant's exceptions. After issue joined upon answer of denial and payment, a trial was had by the court, resulting in a finding for the appellee. A motion for new trial was overruled, judgment rendered, etc. The appellee has filed no brief. The appellant in his brief devotes much argument to the position assumed that the action should have been commenced and prosecuted on the relation of the state, and not in the name of the county auditor, but in the name of the state on the relation of the county auditor. The fact has been evidently overlooked by the appellant that after the demurrer was sustained to the original complaint an amended com plaint was filed, and the objection now urged was cured, and the case, when issue was joined and when it was tried, was in the name of the state of Indiana on the re

lation of James Woodward, auditor of Harrison county. We think it was the duty of the county auditor, on the relation of the state, to commence and prosecute this claim. It is made his duty by statute, in all cases when the mortgaged premises fail to sell for a sum sufficient to satisfy the principal and interest of the loan made, to bring suit on the notes executed by the mortgagor. Section 4390, Rev. St. 1881. It is further provided by statute that county auditors are authorized to institute and prosecute same to final judgment and execution in the name of the state against the principals or sureties, or either, upon any note, bond,, mortgage, or any obligation on account of any trust fund or other fund, whether such note, bond, or mortgage be in the name of the state or any other person. Section 5904, Id. No other objection is made to the amended complaint. The demurrer was properly overruled. Clark v. State, 109 Ind. 388, 10 N. E. Rep. 125; Scotten v. State, 51 Ind. 52.

There is no contention by the appellant that the amount found by the court as a claim against Kemper's estate, upon the basis that the estate was liable for the interest paid by the county, and the amount paid to the state on the claim filed by the attorney general for the deficiency between the amount of the mortgage and the amount for which the land was sold, was correct, if the estate was liable in this action. It is insisted by the appellant that the county voluntarily paid the money on the claim of the attorney general, when it was the duty of the auditor, under section 4390, to sue the mortgagor, and it was the duty of the attorney general to see that suit was brought; that the county voluntarily paid money out of the county treasury which it did not owe; that, having paid it, the county could not recover it back. We cannot concur in this view of the law. The board of commissioners properly allowed and paid the deficiency between the amount of the mortgage and the amount for which the land was sold. It was the duty of the county to preserve so much of the school fund as was intrusted to it, and was liable for the payment of the annual interest thereon at the rate established by the law. Section 4326, Rev. St. 1881. The fact that the county auditor failed to bring the action until after the board of commissioners had made good the deficiency does not affect the right to recover from the mortgagor in this action, if it was in proper form; and that this action was in proper form cannot be seriously questioned. If there was any doubt as to the right of recovery, that question has been clearly settled in the case of Board v. State, (Ind.) 24 N. E. Rep. 350, which in the points involved in this case sustain the trial court. We find no error in the record. The judgment is affirmed, with costs. (1 Ind. A. 217)

WIESTLING v. MARTHIM. (Appellate Court of Indiana. April 29, 1891.) FOREIGN INSURANCE COMPANIES - CONDITIONS OF DOING BUSINESS.

Where an application for life insurance in a Pennsylvania company is taken by an agent in

Indiana, and forwarded to the bome office in Philadelphia, and upon the receipt of the policy issued thereon the agent delivers it to the assured, and receives from him the first payment, the contract is consummated in Indiana; and, in the absence of a compliance with Rev. St. 1881, $$ 3022, 3030, 3765, requiring the agents of nonresident corporations to deposit in the office of the clerk of the county where they propose to do business the power of attorney or commission under which they act as agents, and to procure a certificate of authority from the auditor of the state by filing a statement, etc., of the president and secretary of the company, the contract of the insured to pay assessments is not enforceable in the courts of Indiana.

Appeal from circuit court, Decatur county; S. A. BONNER, Judge.

McDonald, Butler & Snow, for appellant. W. A. Moore and Miller & Gavin, for appellee.

ROBINSON, J. Joshua M. Wiestling, receiver of the New Era Life Association of 1876 of Philadelphia, appellant, commenced this action against the appellee. The complaint alleges that said association, a corporation organized under the laws of the state of Pennsylvania for the purpose of carrying on the business of life insurance, was dissolved on the 21st day of June, 1886, by order of the court of common pleas of Dauphin county, Pa.; that on said day, by order of said court, the appellant was appointed receiver of said company; that on the 26th day of July, 1879, the appellee made application in writing to said company to be admitted as a member thereof, a copy of which application is made a part of the complaint; that in said application the appellee agreed to be liable to said company for all death claims accruing while the certificate of membership issued on said application was in force; that the appellee caused said application to be transmitted to said company in the city of Philadelphia, in the state of Pennsylvania, to be decided on by said company; that said company, at said city of Philadelphia, by its duly-authorized oicers, accepted the appellee's application on the 30th day of July, 1879, and thereupon then and there issued to the appellee a certificate of membership, which certificate of membership was then and there delivered to and accepted by the appellee; that on the 10th day of November, 1881, the appellee's certificate of membership lapsed on account of the non-payment of certain mortuary assessments; that during said time when the appellee was a member of said association certain death losses accrued to said company; that assessments were duly made by said company to pay for said death losses; that the appellee was duly notified of such assessments, and payment thereof was duly demanded by said company, but the appellee has never paid the same. Wherefore judgment was demanded. The appellee demurred to the complaint, which was overruled. The appellee then answered in one paragraph, which answer admits the execution of the application exhibited with the complaint, but says that prior to the time of its execution said New Era Life Association had not, nor has it since said time, furnished

the auditor of the state of Indiana with a statement, under oath, of the president or secretary of said association, of the con. dition of said company, in compliance, or attempted compliance, with the provisions of an act of the general assembly of the state of Indiana approved March 3, 1877, respecting foreign insurance companies and their agents doing business in the state of Indiana; that at said time, or prior thereto, said association had not, nor has it since, filed with the auditor of state a written instrument under the seal of the company, signed by the president and secretary, authorizing W. T. Royse, who took said application at Greensburgh, Decatur county, Ind., as the agent of said company, and as such agent forwarded the same to the home office, and who, upon the return of the policy, as such agent, delivered same to the defendant, and received from said defendant the sum of $20, the first payment, which sum included the sum of $6, the annual dues for the first year, to acknowledge service of process upon such agent, and that such acknowledgment should be taken and held valid as if served upon the company according to the laws of this state or any other state, and waiving all claim of error by reason of such service; that no certificate of authority of any kind or nature has ever at any time been filed in the office of the clerk of the Decatur circuit court for either said W. T. Royse, or for any other person or persons, to act as such agent for said company within said county. The appellant demurred to the answer, which was overruled, and exceptions properly taken, and, the appellant failing and refusing to plead further, judgment was rendered by the court on demurrer. The alleged error of the court in overruling the demurrer to the answer is assigned as cause for the reversal of the case.

Section 3022, 3030, 3765, Rev. St. 1881, relating to foreign insurance companies doing business in this state, read as follows: "Sec. 3022. Agents of corporations not incorporated or organized in this state, before entering upon the duties of their agency in this state, shall deposit in the clerk's office of the county where they propose doing business therefor the power of attorney, commission, appointment, or other authority under and by which they act as agents. "Sec. 3030. The provisions of this act are hereby made conditions upon which such corporations may be authorized to do business in this state, or hold titles to or liens on real estate therein." "Sec. 3765. It shall not be lawful for any agent or agents of any insurance company incorporated by any other state than the state of Indiana, directly or indirectly, to take risk or transact any business of insurance in this state without first producing the certificate of authority from the auditor of this state; and, before obtaining such certificate, such agent or agents shall furnish the said auditor with a statement under oath of the president and secretary of the company for which he or they may act." Said section then sets forth what matters such statement shall contain. The contention on the part of the appellant is that the conv.27N.E.no.6-37

tract is governed by the laws of Pennsylvania, and not Indiana; and of the appellees, that the facts alleged in the answer brings the contract within the laws of Indiana. We must therefore look to the allegations in the answer, which are admitted by the demurrer, to ascertain whether the facts stated are sufficient to bring the contract within the statute of this state, and make it appear that the contract was consummated in this state. The answer alleges that one W. T. Royse, who took the application at Greensburgh, Decatur county, Ind., as such agent, forwarded the same to the home office, and who,upon the return of the policy, as such agent, delivered same to the appellee, and received from him the sum of $20, the first payment, which included the sum of $6, annual dues for the first year. It seems clear from these facts that the contract was not made in Pennsylvania. The negotiations connected therewith in obtaining the application, in forwarding it to the home office, in collecting the amount due thereon, and in the delivery of the policy after the payment of the amount due, was done and performed by appellant's agent at Greensburgh, Decatur county, Ind. We think the contract comes within the provisions of the section of the statute set out in this opinion, and was a violation of these sections. If there was any doubt upon this question, the case of Cassaday v. Insurance Co., 72 Ind. 95, removes such doubt. That case was an action upon a promissory note as the consideration of a policy of insurance against loss by fire by a foreign company, and as to material facts is in every material point similar to this case; in fact, we are unable to distinguish any difference in principle in the two cases. The case of Insurance Co. v. Thomas, 46 Ind. 44, so far as the questions involved in this case were determined, sustains the view we have taken. We have been referred to some authorities which are to some extent in conflict with these cases, but we find no conflict in the decisions of the supreme court of this state upon the questions in this case, but all tend in the same direction. The contract must, therefore, be treated as coming within the provisions of, and in violation of, the statute of this state.

It is suggested.by the appellant that the statute, being a highly penal one, should not be enforced against the appellant, who is a receiver, and is winding up the affairs of the corporation who made the contract in the case at bar, in the interest of all parties; compliance with the statute is not an impossibility; that the evident intention of the legislature was to protect the citizens of this state in their negotiations with foreign corporations. The corporation which made this contract has been dissolved, and the receiver, as has been said, is suing in the interest of all parties. In support of this view we are referred to Insurance Co. v. Wellman, 69 Ind. 413, and Elston v. Piggott, 94 Ind. 15. We do not think these cases aid the appellant. In the case of Insurance Co. v. Wellman it was held "that policies issued and notes taken by foreign insurance companies within this state are not void because

they have not complied with statutes authorizing them to do business within its limits, but the remedy upon such notes is suspended until they do comply with said laws." The answer pleaded a non-compliance with the statute, was held sufficient, and the payment against the insurance company by reason of this failure was affirmed. The case of Elston v. Piggott presents a different question. In that case it was "held that a decree of foreclosure and title acquired under a sale pursuant thereto by a foreign corporation plaintiff cannot be questioned upon the ground that the corporation had not filed a power of attorney, as required by section 3022, Rev. St. 1881, the fact being available only by answer in abatement." The contract in this case was unenforceable under the statute, and suit could not be maintained thereon until the company had complied with the statute. That it did not do while it had the power, but waited until dissolved by process of law. It then became impossible to comply with the statute, and until which time the contract could not be enforced. The legal conclusion would seem to follow if the company could maintain suit by a compliance with the statute, and waited until it was dissolved, and by its own laches created the impossibility. The fact of being dissolved in that condition would not give the receiver a right the company did not possess, and by its own fault had rendered impossible. There is no error in the case for which it should be reversed, and is therefore in all things affirmed, at the cost of the appellant.

(1 Ind. A. 232)

WOLL, Treasurer, v. THOMAS. (Appellate Court of Indiana. April 29, 1891.) TAXATION-ASSESSMENT-OMITTED PROPERTY.

1. Though under Rev. St. Ind. 1881, § 6416, the county auditor could, when articles of property were altogether omitted from taxation, enter such property upon the books and assess it, such power did not include the authority to revalue property which had been listed and appraised.

2. Where property is accidentally accredited to the wrong item in the tax return, but in fact bears its share of taxation as if correctly listed, it cannot be assessed subsequently as omitted property, when the mistake is disclosed by the filing of an administrator's inventory of the estate.

Appeal from circuit court, Cass county; M. WINFIELD, Judge.

A. G. Jenkines, J. W. McGreevy, and S. T. McConnell, for appellant. Nelson & Myers and W. L. Penfield, for appellee.

CRUMPACKER, J. John Thomas died in Cass county, Ind., in 1887, and the appellee was appointed administrator of his estate. He gave due notice of his ap. pointment, and proceeded with the duties of his trust, and on the 21st day of November, 1888, filed his final settlement report in the Cass circuit court, which was set for hearing by the clerk for December 13, 1888, and due notice was given accordingly. The hearing of the final report was postponed until the 17th day of December, on which day Charles Woll, treasurer of Cass county, appeared and filed exceptions

to the report, upon the ground that a claim for unpaid taxes was pending against said estate undisposed of. At the time of filing such exceptions he filed a claim against the estate in the form of a complaint, as follows, leaving off the caption: "The plaintiff, Charles L. Woll, as treasurer of Cass county, Ind., complains of the defendant, William C. Thomas, administrator of the estate of James Thomas, deceased, and says that he is now, and has been since the 1st day of December, 1888, treasurer of Cass county, Ind.; that the defendant is now, and has been since the 29th day of August, 1887, the administrator of James Thomas, deceased recently, and for and during all the years hereinafter mentioned a resident of Boone township, Cass county, Ind., who died on the 21st day of August, 1887; that on the 1st day of April, 1888, said James Thomas was the owner of personal property subject to taxation in Cass county, Ind., of the fair cash value of $12,044.29, and on the 1st day of April, 1884, he was the owner of personal property subject to taxation in such county of the fair cash value of $16,688.14; and on the 1st day of April, 1885, he was the owner of personal property subject to taxation in such county of the fair cash value of $18,504.97; and on the 1st day of April, 1886, he was the owner of personal property subject to taxation in said county of the fair cash value of $22,535.21; and on the 1st day of April, 1887, he was the owner of personal property subject to, taxation in said county of the fair cash value of $24,098.65; and on the 1st day of April, 1888, his estate, of which the defendant was and is the administrator, was worth in personal. property, over and above all debts and liabilities of every kind and description subject to taxation, the sum of $25,596.95; that said James Thomas did not make and deliver, or cause to be made and delivered, to the proper assessor, in the years 1883, 1884, 1885, 1886, 1887, or any one of said years, a correct list of such property so held by hin; and the defendant, William C. Thomas, administrator as aforesaid, did not make out and deliver, or cause to be made out and delivered, to the proper assessor, in the year 1888, a correct list of said property so held by him as such administrator; but the said James Thomas only returned for 1883, $8,699; for 1884, $12,376; for 1885, $6,444; for 1886, $7,075; for 1887, $7,916; and the said William C. Thomas, as administrator aforesaid, only returned in 1888, $9,036,-as the amount and value of the said property so held by them, so subject to taxation, and in consequence thereof the residue of such property so owned by the said James Thomas in the years 1883, 1884. 1885, 1886, and 1887, and the residue of such property so held by the said William C. Thomas, as adminis trator as aforesaid, in the year 1888, was omitted from the assessment books and tax duplicate, and no taxes were assessed or paid thereon for the said years 1883, 1884, 1885, 1886, 1887, or 1888, or any one of said years; that on the 19th day of Norember, 1888, Harry Torr, the auditor of said Cass county, was credibly informed, had good reason to believe, and discov

ered that all the property of said James Thomas had not been assessed for said years; that there was an omission from the assessment books and tax duplicates of each of said years the amount set forth in the above and foregoing; that after having given the defendant, William C. Thomas, administrator as aforesaid, written notice to appear before him as such auditor, on the 24th day of November, 1888, and show cause, if any he could, why such omitted property should not be assessed and charged with the amount of taxes due thereon; and the said William Thomas, administrator, aforesaid, in pur. suance to said notice given him by said auditor, appeared on said November 24, 1888, before said auditor, in person and by attorney, but failed to show said auditor any good and sufficient cause why such assessment should not be made and said property charged with the taxes due thereon; whereupon said auditor proceeded to and did assess such omitted property at its true and fair cash value, and charged said omitted property, and the defendant, William C. Thomas, as such administrator, on the tax duplicate both in the auditor's and in the treasurer's office of Cass county, Ind., for the years 1883, 1884, 1885, 1886, 1887, and 1888, with the proper and lawful amount of taxes due thereon; that by reason of such assessment, and the placing of said taxes upon the tax duplicates as aforesaid, there is now in the hands of the plaintiff, as such treasurer, for collection against the defendant, taxes for state, county, and other purposes, the following sums, towit:

For the year 1883, on omitted property valued at $3,375.

.$ 49 95

For the year 1884, on omitted property valued at $4,310..

For the year 1885, on omitted property valued at $12,060

75 86 169 80

Making total tax for these years of.....$873 72 "That no part of said tax has been paid, but the same is due and unpaid; that since the making of said assessment the plaintiff has demanded of the defendant payment of said taxes. And the plaintiff further shows that $23,399.59 came into the hands of the defendant as such administrator, after paying all debts and liabilities of said estate, more than sufficient to pay all of said taxes."

An answer was filed to the complaint, stating, in effect, that all of the taxable property of the decedent and of his estate had been properly listed and returned for taxation for the years named in the complaint, and the proper assessor for each year appraised said property in good faith, at what he considered its fair cash value; and that no taxable property owned by said decedent, or by his estate, for any of said years, had been omitted from the assessment lists or the tax duplicates. But the auditor of said county, without authority of law, undertook to and did re

appraise said property, and increased the valuation thereof as fixed and returned by the assessors, and such reappraisement and increased valuation was the sole basis for the claim asserted in the complaint. It was also alleged that the claim was not filed 30 days before the time fixed for the final settlement of the estate, and therefore it was barred. A demurrer was filed to the answer, and overruled, to which the appellant excepted. A reply in general denial was filed, and the cause was submitted to the court for trial, and resulted in a finding and judgment for the appellee. A motion for a new trial, on the grounds (1) that the finding was contrary to law, (2) that it was contrary to the evidence, was overruled, and the appeliant duly excepted. Errors are assigned here which bring before us for decision the appellant's exceptions to the overruling the demurrer to the answer and in overruling the motion for a new trial.

No error was committed by the court in overruling the demurrer to the answer. Under the revenue law of 1881, county auditors had no authority to review the work of township assessors, and therefore no right to increase the valuation of taxable property listed by the owner and appraised by the assessor. Where articles of property were altogether omitted from taxation, and this fact came to the notice of the auditor, it was his duty, under the provisions of section 6416, Rev. St. 1881, to enter such property upon the books, and assess it for taxation; but this authority was expressly limited to omitted property, and did not include the power to revalue property which had been listed and appraised. This identical question was decided adversely to the appellant in the case of Williams v. Segur, 106 Ind. 368, 1 N. E. Rep. 707. In that case it was held that, even where an assessor corruptly and purposely assessed property at less than one-third its actual value, the auditor had no power to revalue it. In such extreme and exceptional cases, involving official corruption and malfeasance upon the part of the assessor, adequate remedies for the protection of the public exist, but they may not be administered by county auditors.

Appellant's learned counsel very earnestly contend that the finding of the court is not supported by sufficient evidence. The assessment lists for the years from 1883 to 1888, inclusive, were introduced in evi. dence; and it appears from them that personal property, consisting mainly of cash, notes, and credits, was listed each year, ranging in value, as assessed, from $6,400 to $9,000. The inventory of the estate prepared and filed by the administrator showed assets of such description of the nominal value of $25,138.99. These assets, as described in the inventory, consisted of cash on hand; notes and accounts due the decedent from a large number of persons for medical services rendered by him. The assessment list for 1888, nade by the administrator, contains two items of tax. ables, viz., cash on hand written opposite the first item in the assessment list, valued at $9,000, and stock entered opposite item