1855. WELLS V. sion and exclusion of evidence, and the improper giving May Term, Per Curiam.-The judgment is affirmed with costs. M. J. Williams, for the state. WELLS. WELLS v. WELLS. A minor attains to twenty-one years of age on the day preceding the twentyfirst anniversary of his birth. A decree against an infant, without notice and without evidence, is erroneous. ERROR to the Marion Circuit Court. STUART, J.-Wells, the father, filed his bill in chancery against Wells, the son, an infant, in September, 1834, alleging that he had purchased, with his own money, certain lands in Marion county, in the name of his son, and praying that the title thus nominally placed in the infant son might be vested in him. Decree accordingly. Counsel seem to be mistaken in asserting that the bill was filed and the decree rendered the same day. The bill was filed September 23, 1834, and on that day a guardian ad litem was appointed. The answer of Calvin Fletcher, guardian ad litem, was filed October 2, 1834, and the decree then passed. It no where appears that there was any process, or any evidence. These are the errors assigned. They are clearly sufficient to reverse the case; Crain v. Parker, 1 Ind. R. 374; provided Wells, the son, has shown himself to be in a position to avail himself of them. Wednesday, May Term, 1855. V. We attach no importance to the admissions improvidently made for him by his guardian ad litem. But there FORELANDER are other considerations affecting his right to bring error HICKS. upon which we were not at first so clear. The bill alleges that the land was entered in January, 1832; that the son, E. R. Wells, was at the time of filing the bill "only six years old." If from this statement we fix his birth-day at September 23, 1828, he was of age September 22, 1849. That was the date of the removal of the disability. From that date he had five years to bring error. The transcript was filed, and errors assigned in this Court, November 12, 1853. So that he is entitled to his writ of error, however reluctant Courts may justly be to open adjudications of such long standing. But as the decree was rendered without notice to the infant, and without evidence, it must be reversed. We intimate no opinion as what will be the effect, if any, of the reversal on subsequently acquired titles. Per Curiam.-The decree is reversed with costs. Cause remanded, &c. D. McDonald, W. A. McKenzie and W. Henderson, for the plaintiff. 6 448 126 361 126 566 6 448 135 242 FORELANDER v. HICKS, Administrator. If at a sale of land upon execution, the execution-plaintiff, by fraudulently representing that he is buying for the purpose of allowing the defendant to redeem, prevents competition, and purchases the land at a price greatly below its value, the defendant may have the sale set aside. Where there are judgments of different dates against a debtor, in favor of the same creditor, he has a right to apply any voluntary payment to whichever judgment he chooses. Where evidence was necessary to authorize a judgment of the Circuit Court, it will be presumed, in the absence of a bill of exceptions disclosing the contrary, that the Court proceeded upon proper evidence. ERROR to the Johnson Circuit Court. STUART, J.-This is a petition, seemingly in the nature May Term, 1855. of a proceeding in chancery, to set aside a sheriff's sale. FORELANDER Decree according to the prayer of the petition. The proceeding was had in 1852, while the old practice was still in force. What would have been its fate on demurrer, or on motion in arrest of judgment, is not now a question. These tests of its sufficiency were not applied. Though the language of the petition, "your orator," &c., indicates in the mind of the pleader a bill in chancery, it may perhaps be better designated as a proceeding by notice and motion. It appears that Forelander recovered against Harrington three judgments at law, of the following dates and amounts, viz., September 6, 1849, for 309 dollars; March 7, 1850, for 202 dollars; March 6, 1851, for 52 dollars; in all, 563 dollars. On these judgments it is alleged the defendant had paid at different times 450 dollars. These payments, it is said, Harrington, at, &c., elected to apply thus: 1. To the judgment of March 7, 1850; 2. To the judgment of March 6, 1851; leaving a surplus of between 175 and 200 dollars, to be applied on the first judgment of September 6, 1849. It further appears that Forelander issued executions on all the judgments, and on the judgment of March 6, 1851, execution was issued February 20, 1852, by virtue of which the sheriff sold the land, the sale of which this motion seeks to set aside. The petition sets up that Harrington had no notice of any such executions till after the sale; that Forelander attended, and prevented bidding, representing that he was buying in the property for the purpose of letting Harrington redeem, and under this pretext, which he afterwards refused to comply with, he purchased property worth 1,500 dollars for 192 dollars. Forelander appeared by counsel, and, it would appear from the record, there was a hearing; upon which it was ordered that the sale be set aside. The Court find the VOL. VI.-29 V. HICKS. June 13. May Term, 1855. amount paid to be 464 dollars, and the payments are applied to the judgments, in accordance with the election of FORELANDER Harrington, as alleged in the petition. V. HICKS. The acts of Forelander, in preventing competition at the sheriff's sale, were a fraud on Harrington and sufficient to set aside the sale. Vantrees v. Hyatt, 5 Ind. R. 48. Harrington had a right to elect to apply any voluntary payment he made on the judgments to whichever of the three he pleased. The Mayor, &c. v. Patton, 4 Cranch 317. Perhaps it would be otherwise as to any involuntary payment; for then it would be the duty of the sheriff, notwithstanding the election of the execution-defendant, to apply the money to the execution on the oldest judgment. Several errors in the proceedings, not apparent on the face of the record, are urged in argument; for instance, that the Court acted without evidence. That fact not appearing in the record, should have been disclosed by bill of exceptions. In the absence of a motion for a new trial and a bill of exceptions setting out the evidence, or showing the fact that there was none, we can not judicially know upon what the Court acted. We must therefore presume in favor of the action of the Court. There may perhaps be some informality of a sufficiently grave character to have been reached by motion in arrest of judgment; but that motion was not made. These omissions are the less to be regretted, as it would appear that the substantial justice of the case had been reached. Per Curiam.-The judgment is affirmed with costs. F. M. Finch, for the appellant. D. Hicks, L. Barbour and A. G. Porter, for the appellee. May Term, 1855. SEGUR V. THE STATE. An indictment for selling spirituous liquor by retail did not allege a price for which the liquor was sold. Held, that the indictment was bad on motion to quash. APPEAL from the Bartholomew Circuit Court. DAVISON, J.-Indictment. The charge is that Segur, on, &c., at, &c., not being licensed, &c., did then and there sell spirituous liquors, by a less quantity than a quart at a time, to one John Mc Kinney, contrary, &c. Motion to quash the indictment overruled. The defendant then pleaded not guilty. There was a trial by the Court and a finding for the state. The defendant thereupon moved for a new trial and in arrest of judgment; which motions were denied, and judgment given against him, &c. John McKinney, a witness for the prosecution, testified upon the trial, that on the 9th of August, 1851, within Bartholomew county in said state, he purchased whiskey by a less quantity than a quart at a time from the defendant, and paid him therefor 5 cents. The indictment is said to be defective, because it does not allege the price for which the liquor was sold. This Court so held in Divine v. The State, 4 Ind. 240, and we are inclined to adhere to that decision. If the defendant, without moving to quash, had proceeded to trial, he could not, under the evidence in this cause, have availed himself of the defect in the indictment on motion for a new trial. Hare v. The State, id. 241. But here the objection was raised at the earliest stage of the case, and should have been sustained. Per Curiam.-The judgment is reversed. manded, &c. Cause re J. W. Chapman and J. B. Merriwether, for the appellant. SEGUR V. THE STATE. Wednesday, |