(105 Ind. 380) LOCKWOOD v. FERGUSON. Filed February 13, 1886. DRAINAGE-CONTRACTOR-CLAIM FOR WORK-MUST BE COLLECTED AS TAX. A contractor holding a surveyor's certificate for work done by him on s drain, under the drainage act of September 19, 1881, cannot maintain a per sonal action for the recovery of the money due him thereunder; the only mode of enforcing his claim being to have it placed by the auditor upon the tax du plicate, to be collected as ordinary taxes are collected. Appeal from De Kalb circuit court. W. L. Penfield and H. J. Shafer, for appellant. Howk, J. The controlling question in this case arises under the alleged error of the circuit court in overruling appellant's demurrer to appellee's complaint. In his complaint, appellee Ferguson declared upon a written certificate executed to him, as alleged, by the surveyor of De Kalb county, of which the following is a copy: "AUBURN, IND., November 1, 1884. "This certifies that I, the undersigned, surveyor of De Kalb county, Indiana, have examined the allotment of Alonzo Lockwood on the James Carnahan drain, from stake 56.50 to stake 75, and find the same fully completed, according to specification of said ditch. Amount due John D. Ferguson for the construction of the above ditch, $366.10. [Signed] "J. JAY VAN AUKEN, Surveyor." It is shown by the averments of the complaint that this certificate was executed to the appellee, Ferguson, under and pursuant to the provisions of section 4305, Rev. St. 1881, in force since September 19, 1881, and such other facts were stated by appellee as would have constituted a good cause of action if a personal action could be maintained, in any case, upon such a certificate. The first point made by appellant's counsel, in discussing the alleged insufficiency of appellee's complaint, is that a personal action cannot be maintained by the contractor for the recovery of the money due him under the surveyor's certificate. Appellant's counsel insist that appellee has mistaken his remedy, and that he can only secure the collection of the money due him, under such certificate, by procuring the county auditor to charge the amount thereof on the tax duplicate against appellant's land, to be collected as other taxes are collected. On the other hand, appellee's counsel vigorously insists that section 4305 provides for two classes of cases, where the share or allotment has been sold to a person not the owner of the land assessed therefor, as follows: (1) Where the owner of the land assessed is a resident of the county; and (2) where the owner of the land assessed is a non-resident of the county. As to the first class, it is claimed by appellee's counsel that the statute makes the sum specified in the surveyor's certificate "due and payable immediately by the owner of the land," and provides that "such certificate, if not paid on demand, shall draw interest until paid." As to the second class, appellee's counsel claim that the statute makes it the duty of the county surveyor, only as to that class, to file a copy of his certificate with the county auditor, to be entered by him on the tax mortgage debt was paid, relying on an abstract shown him by Reeder which indicated that the mortgage was released and satisfied. Without any notice to the contrary, he paid all the purchase money except $200. Before that was paid Nay notified him of his mortgage on the land. Clift replied that Reeder had furnished him with an abstract, and in response Nay informed Clift that the release of his mortgage which appeared on the record was a forgery. As a conclusion of law the court stated that the $200 of the purchase price remaining unpaid, together with interest from the date of the notice by Nay to Clift, was a lien on the land by virtue of the mortgage satisfied as above stated. A decree was given accordingly. The conclusions of law were excepted to by Clift. The only ground upon which a reversal is sought is that the special finding of the court does not show notice of Nay's mortgage to the appellant before he paid the $200; that the finding amounts to nothing more than evidence tending to show notice. We think the finding is more than evidence of notice. The finding of the court on the subject is as follows: "That afterwards on the third day of June, 1881, and before he had paid the residue of the purchase money in suit, he was notified by the said Nay that he had and held a claim upon said property, to which he replied that Reeder had furnished him a complete abstract, in response to which he was informed by the said Nay that the satisfaction of said mortgage on the record was a forgery. It is contended in argument that because the court found that the release was not a forgery, but had been made through mistake, therefore Clift had a right to disregard what he was told, and rely on the genuineness of the signatures to the release. We do not think this follows. The purchaser was notified by Nay that he held a claim on the land, and that the release of the mortgage which appeared on the record was a forgery. This was enough to put the appellant on inquiry. He could not thereafter pay the unpaid purchase money to Reeder, and depend upon a mere technical inaccuracy of expression employed by the appellee. Doubtless, if further inquiry had been made, the truth would have been fully ascertained. Having been notified of the appellee's claim, and that the release and satisfaction of the mortgage, as shown by the record, was not recognized as genuine, if the appellant chose to pay without further inquiry, he did so at his own peril. Satisfaction having been entered by mistake and without consideration, it was not operative between the parties, or in favor of a subsequent purchaser with notice. A purchaser who receives notice of the rights of another, before full payment, is not a good-faith purchaser without notice, to the extent that the purchase price remains unpaid. Burton v. Reagan, 75 Ind. 77, and authorities cited; Anderson v. Hubble, 93 Ind. 570. The judgment is affirmed, with costs. (105 Ind. 380) LOCKWOOD v. FERGUSON. Filed February 13, 1886. DRAINAGE-CONTRACTOR-CLAIM FOR WORK-MUST BE COLLECTED AS TAX. A contractor holding a surveyor's certificate for work done by him on s drain, under the drainage act of September 19, 1881, cannot maintain a per sonal action for the recovery of the money due him thereunder; the only mode of enforcing his claim being to have it placed by the auditor upon the tax du plicate, to be collected as ordinary taxes are collected. Appeal from De Kalb circuit court. W. L. Penfield and H. J. Shafer, for appellant. Howк, J. The controlling question in this case arises under the alleged error of the circuit court in overruling appellant's demurrer to appellee's complaint. In his complaint, appellee Ferguson declared upon a written certificate executed to him, as alleged, by the surveyor of De Kalb county, of which the following is a copy: "AUBURN, IND., November 1, 1884. "This certifies that I, the undersigned, surveyor of De Kalb county, Indiana, have examined the allotment of Alonzo Lockwood on the James Carnahan drain, from stake 56.50 to stake 75, and find the same fully completed, according to specification of said ditch. Amount due John D. Ferguson for the construction of the above ditch, $366.10. [Signed] "J. JAY VAN AUKEN, Surveyor." It is shown by the averments of the complaint that this certificate was executed to the appellee, Ferguson, under and pursuant to the provisions of section 4305, Rev. St. 1881, in force since September 19, 1881, and such other facts were stated by appellee as would have constituted a good cause of action if a personal action could be maintained, in any case, upon such a certificate. The first point made by appellant's counsel, in discussing the alleged insufficiency of appellee's complaint, is that a personal action cannot be maintained by the contractor for the recovery of the money due him under the surveyor's certificate. Appellant's counsel insist that appellee has mistaken his remedy, and that he can only secure the collection of the money due him, under such certificate, by procuring the county auditor to charge the amount thereof on the tax duplicate against appellant's land, to be collected as other taxes are collected. On the other hand, appellee's counsel vigorously insists that section 4305 provides for two classes of cases, where the share or allotment has been sold to a person not the owner of the land assessed therefor, as follows: (1) Where the owner of the land assessed is a resident of the county; and (2) where the owner of the land assessed is a non-resident of the county. As to the first class, it is claimed by appellee's counsel that the statute makes the sum specified in the surveyor's certificate "due and payable immediately by the owner of the land," and provides that "such certificate, if not paid on demand, shall draw interest until paid." As to the second class, appellee's counsel claim that the statute makes it the duty of the county surveyor, only as to that class, to file a copy of his certificate with the county auditor, to be entered by him on the tax duplicate, and collected as other taxes are collected, together with 6 per cent. after the same became delinquent. Finally it is claimed on behalf of appellee, that, as appellant was a resident of De Kalb county, and as the statute made the amount mentioned in the surveyor's certificate the personal debt of the appellant to the appellee, due and payable immediately, the appellee can maintain a personal action against the appellant for the recovery of such personal debt. These questions were considered by this court, in the recent case of Storms v. Stevens, 104 Ind. - S. C. 3 N. E. Rep. 401, and it was there held, substantially, that an action would not lie against the owner of the land, whether resident or non-resident, for the recovery of the sum expressed in the certificate executed by the county surveyor to the contractor, for the construction of a section of a ditch, pursuant to the provisions of section 4305, or for the enforcement of the lien thereby given. It was further held to be the duty of the county surveyor to file copies of his certificates, executed as aforesaid, with the county auditor, whether the land-owners were resident or non-resident, and the duty of the county auditor to charge the sum expressed in any such certificate on the tax duplicate against the proper land-owner, to be collected as other taxes. are collected. Upon the authority of the case cited, it must be held in the case in hand that the appellee cannot maintain his action, and that it was error to overrule the demurrer to his complaint. The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrer to the complaint. (105 Ind. 600) LOCKWOOD v. CHAMBERS and others. Filed February 13 1886. DRAINAGE-CONTRACTOR-CLAIM FOR WORK, HOW COLLECTED. A contractor can collect a claim for work performed on a ditch, under the act of 1881, only by having it placed on the tax duplicate against the land charged therewith, and collected as other taxes are collected. Lockwood v. Ferguson, ante, 3, followed. Appeal from De Kalb circuit court. W. L. Penfield and H. J. Shafer, for appellant James E. Rose, for appellee. Howk, J. In this case, the same questions are presented for our decision, in substantially the same way, as those which were considered and decided by this court in Lockwood v. Ferguson, ante, 3, (at the present term.) Upon the authority of the case cited, this case must be decided as that was decided. See, also, Storms v. Stevens, 104 Ind., S. C. 3 N. E. Rep. 401, where the questions referred to are more fully considered. The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrer to the complaint. (105 Ind. 374) Cox v. RATCLIFFE. Filed February 16, 1886. 1. JUDGMENT-MOTION FOR JUDGMENT ON SPECIAL FINDINGS - EVIDENCE NOT CONSIDERED. The evidence cannot be considered in determining a motion for judgment on the special findings notwithstanding the general verdict. 2. MORTGAGE-DEED ABSOLUTE ON FACE-PAROL EVIDENCE TO SHOW MORTGAGE -EJECTMENT. A deed absolute on its face may be shown by parol evidence to be a mortgage; and while the holder of such an instrument has a prima facie right to possession, yet it is a good defense to an action to enforce such right that the instrument is merely a mortgage made to secure a loan to the defendant. 3. SAME REDEMPTION-AGREEMENT TO EXTEND TIME-WHEN VALID. An agreement made during the year of redemption to extend the time of redemption is valid. 4. EVIDENCE-PLEADING IN DIFFERENT CAUSE-WHEN ADMISSIBLE. Where two paragraphs of a complaint are filed stating different causes of action, and the cause is redocketed, by order of court as two separate actions, the paragraph on which either action is founded is admissible in evidence, upon trial of the other. Appeal from Howard circuit court. F. Cooper and James N. Sims, for appellant. MITCHELL, J. Timothy B. Cox brought suit against Andrew Ratcliffe, to recover possession of 80 acres of land in Howard county, which is described as the W. of the S. E. of section 34, township 23 N., of range 2 E. Issues having been joined on the complaint by an answer in general denial, a jury returned a general verdict for the defendant. With their general verdict the jury returned answers to 14 interrogatories submitted to them at the request of the plaintiff. In answer to the interrogatories, the jury found specially the following facts: "(1) On January 31, 1877, the sheriff of Howard county executed a deed for the north half of the land in controversy to Lewis O. Lloyd. (2) This deed was made in pursuance of a sale made one year before its date, on an execution against the defendant. (3) The execution was duly issued on a valid judgment of the Howard circuit court against Ratcliffe. (4) The land was never redeemed from the sheriff's sale. (5) The defendant never acquired any other title to the land. (6) Lloyd and wife conveyed the title thus acquired to the plaintiff, December 21, 1877. (7) Defendant and his wife, about the same date, made a quitclaim deed for the same land to plaintiff. (8) De Witt C. Bryant also recovered judgment against the defendant in the Howard circuit court at its March term, 1876. (9) An execution was issued on this judgment. (10) The south half of the land in controversy was sold to satisfy this last execution. (11) The land levied on was purchased at this sale by Bryant, who afterwards transferred his certificate of purchase to the plaintiff, to whom the sheriff made a deed after the period for redemption expired. (12) There was a mutual agreement between the plaintiff and defendant, before or at the time of the delivery of the respective deeds, that if the defendant would repay to plaintiff the money he had paid out and expended, with interest, he would reconvey the land to him. (13) There was no specified time within which this agreement was to be performed by the defendant. (14) The defendant never paid any consideration for the extension of the time for redemption of the land bought by Lloyd." The plaintiff moved the court for judgment in his favor on the special finding, "and the documentary evidence in the cause," notwithstanding |