N. E. Rep. 135. "A way of necessity can only be raised out of land granted or reserved by the grantor, but not out of the land of a stranger; for if one owns land to which he has no access, except over Lands of a stranger, he has not thereby any right to go across these for the purpose of reaching his own. 2 Washb. Real Prop. 282; Stewart v. Hartman, supra, 341. A right of way, upon a severance of the estate by partition between heirs, sometimes arises when it would not exist in case of a conveyance of one portion of the premises; and it may be laid down as a general rule that a partition of real estate among heirs carries with it, by implication, the same right of way from one part to and over the other as had been plainly and obviously enjoyed by the common ancestor, in so far as it is reasonably necessary for the enjoyment of each part. Goodall v. Godfrey, 53 Vt. 219; Collins v. Prentice, 15 Conn. 38; Burwell v. Hobson, 12 Grat. 322; Kilgou r. Ashcom, 5 Har. & J. 82; Seymour v. Lewis, 13 N. J. Eq. 439; Elliott v. Sallee, 14 Ohio St. 10. Where the owner of an estate imposes upon one part an apparent and obvious servitude in favor of another, and at the time of the severance of ownership such servitude is in use, and is reasonably necessary for the fair enjoyment of the other, then, whether the severance is by voluntary alienation or by judicial proceedings, the use is continued by operation of law. Insurance Co. v. Patterson, 103 Ind. 582, 2 N. E. Rep. 188.

The appellant contends that the com. plaint is defective for failing to allege that the plaintiff was unable to obtain a way to the highway over the lands of others. This point has been decided contrary to the views of the appellant. Pernam v. Wead, 2 Mass. 203; Collins v. Prentice, 15 Conn. 423. It does not detract from the weight to be given these cases that at the time they were decided the laws of the respective states permitted the establishment of private ways, upon payment of the damages caused by their opening. The appellant also contends that the way claimed was not appurtenant to the dominant estate, so as to pass with it in conveyances of the fee; also that the complaint failed to show that the appellant had notice at the time of his purchase of the easement with which it was charged. The facts stated in the complaint show that the way was a way of necessity; that it was open and visible, and had been used continuously for many years. The same objections were made to the complaint in Robinson v. Thrailkill, 110 Ind. 117, 10 N. E. Rep. 647, in passing upon which ELLIOTT, C. J., says: "The complaint shows that the road purchased by the grantor of the appellees was 'in almost constant use,' and this use was notice to the appellant. It is a familiar rule that possession is sufficient to put a purchaser upon inquiry, and that means of knowledge is equivalent to knowledge." This is a concise statement of the law upon the subject, and is sustained by an unbroken line of authorities, among which we cite: Shirk v. Board, etc.. 106 Ind. 573, 5 N. E. Rep. 705, and 7 N. E. Rẹp. 251; Randall v. Silver

thorn, 4 Pa. St. 173; Zell v. Society, 119 Pa. St. 390, 13 Atl. Rep. 447; Cannon v. Boyd, 73 Pa. St. 179. That the way, as described in the complaint, was appurtenant, and passed by a conveyance of the same, is established by the following, with many other, cases: Robinson v. Thrailkill, 110 Ind. 117, 10 N. E. Rep. 647; Parish v. Kaspare, 109 Ind. 586, 10 N. E. Rep. 109; Insurance Co. v. Patterson, 103 Ind. 582, 2 N. E. Rep. 188; Ross v. Thompson, 78 Ind. 90; Davidson v. Nicholson, 59 Ind. 411; Keiper v. Klein, 51 Ind. 316; Moore v. Crose, 43 Ind. 30; Sanxay v. Hunger, 42 Ind. 44. It is also claimed that, if a way of necessity existed over the lands of the appellant, the selection or location of the way belonged to the appellant. The law is unquestionably as stated, but, according to the allegations of the complaint, the right of selection had been exercised by those under whom the appellant claimed title. The controversy between the parties was not as to the location of the way, but it was a denial of the existence of any way over the appellant's lands. Whether

a way of necessity, when once located, can be changed to another portion of the servient estate, is not before us in this appeal, and we do not, therefore, pass upon the. question. The court did not err in overruling the demurrer to the complaint. Judgment affirmed.

1. Where an officer becomes a defaulter, flees the state, leaves no one to care for the public affairs, and indicates a settled purpose to abandon the offices, it may be deemed vacant without a judicial determination, so that sureties of the defaulting officer cannot challenge the right of a person appointed to fill the abandoned office to prosecute an action for the recovery of the public money.

2. Where there has been an appointment to and an actual incumbancy of an office, the right of such appointee to the office cannot be attacked collaterally.

3. The reports of a township trustee showing a shortage will, unless satisfactorily contradicted, warrant a finding against him and his

sureties.

ELLIOTT, J. The initial question in this case is whether the relator has the capacity to maintain this action. Whether he has that capacity depends upon whether the office of township trustee was vacant at the time of his appointment to it. If it was not vacant, the action must fail. The facts relevant to this question are, in substance, these: In April, 1882, John G. McIlvaine was elected township trustee of Jackson township, Miami county. In 1884 he was elected his own successor, and as such duly qualified. McIlvaine lost a large sum of money belonging to the township in speculations, and was unable to repay it. He fled to Kentucky. His declara

It

tions indicate a settled intention to vacate his office, and he left no one to discharge its duties for him. In our opinion, the office became vacant. Where an officer becomes a defaulter, flees the state, leaves no one to care for the public affairs, and indicates a settled purpose to abandon the office, it may be deemed vacant without a judicial determination. would imperil public interests and benefit no one in such a case to adjudge that the office cannot be deemed vacant until so declared by the courts. If the officer were insisting upon his right to the office, we should have a different case; but here there is evidence of a complete abandonment and a defalcation; and here, too, the object of the action is to recover the money of the public. We are fully within the authorities in holding that there was a vacancy, and a right to fill it by appointment. State v. Jones, 19 Ind. 356; State v. Allen, 21 Ind. 516; Yonkey v. State, 27 Ind. 236; Krant v. State, 47 Ind. 519; Gosman v. State, 106 Ind. 203-209, 6 N. E. Rep. 349; Mowbray v. State, 88 Ind. 324; People v. Common Council, 77 N. Y. 503; People v. Green, 58 N. Y. 295; Curry v. Stewart, 8 Bush, 560; Prather v. Hart, 17 Neb. 598, 24 N. W. Rep. 282. It would be palpably unjust to permit the sureties on the bond of a defaulting officer who has fled the state, and asserts an intention to abandon his office, to challenge the right of the person appointed to fill the abandoned office to prosecute an action for the recovery of the public money. The appointment of the relator by the auditor did not create a vacancy; the vacancy was created by the acts of McIlvaine. When these acts were performed the office became vacant. Hedley v. Board, 4 Blackf. 116. The appointment filled, but did not create, a vacancy. The presumption is that an appointment made by an officer having power to appoint is rightfully made, whenever it appears that the appointee duly qualified and entered into possession of the office. Com. v. Slifer, 25 Pa. St. 23. There was an appointment and an actual incumbency, so that the collateral attack which the appellants here make would be unavailing, even if there were some grounds for their assertion that the relator is not de jure township trustee. State v. Atlantic City, (N. J.) 19 Atl. Rep. 780; Kissimmee City v. Cannon, (Fla.) 7 South. Rep. 523. In whatever aspects this case is viewed, the law clearly appears against the appellants upon the question stated.

The other questions in the case arise upon the evidence; and, in effect, are narrowed to the single question whether the finding is supported by the evidence. That there is evidence supporting the finding there can be on doubt, and when that appears our duty ends, for we cannot interfere simply because there may be some conflict. The reports of the trustee are prima facie evidence of his indebtedness. Strong v. State, 75 Ind. 440; Ohning v. City of Evansville, 66 Ind. 59, and cases cited. The admission of such reports, unless satisfactorily contradicted, will warrant a finding against the officer and his sureties, and the reports of McIlvaine have not been

so contradicted. The evidence shows, indeed, that the public money was lost in speculations. Judgment affirmed.

(128 Ind. 123)

LA MOTT v. STATE ex rel. LUCAS. (Supreme Court of Indiana. April 23, 1891.) BASTARDY-INSPECTION OF CHILD-JURY-EVI

DENCE.

1. In a bastardy proceeding, misconduct of the jurors, after adjournment for the day, and before verdict, in inspecting the countenance of the child, is cured by an instruction that they must not take the child's appearance into consideration in determining whether defendant is its father. In the absence of proof to the contrary, the jury will be presumed to have followed the instruction.

2. Where, in a bastardy proceeding, testimony of the relatrix is brought out, on crossexamination by defendant, that he had sexual intercourse with her four years before the act claimed to have resulted in pregnancy, the state may introduce other evidence of such act to corroborate her.

Appeal from circuit court, Wayne county; D. W. COMSTOCK, Judge.

Heary U. Johnson, for appellant. W. F Medsker and C. E. Shiveley, for appellee.

MCBRIDE, J. This was a bastardy proceeding. After the evidence had been heard, and while the argument to the jury was being made, the court adjourned for the day, and the jury left the courtroom. Thereupon six of the jury engaged in trying the case approached the relatrix, and, with her consent, inspected the features of the bastard child. There was a verdict, finding that the defendant was the father of the child, and he insists that the action of the six jurors was such misconduct as entitled him to a new trial. At the proper time the defendant presented to the jury, and asked to have given, the following special instruction: "In passing upon the question as to whether or not the defendant is the father of the bastard child of Hattie Lucas, you have no right to take into consideration the countenance of said child. It was not proper for said child to be offered in evidence to you in the cause, nor for you to inspect it, or draw any conclusion whatever from its appearance." The court refused to give this instruction, but instead gave the following: "(6) In passing upon the question as to whether the defendant is the father of the bastard child of Hattie Lucas, you have no right to take into consideration the countenance of said child, nor for you to inspect it, or draw any conclusion whatever from its appearance. But, in considering and determining this case, you must look only to and consider the oral testimony, and not the resemblance or non-resemblance of the child to the defendant." Assuming, without deciding, that the jurors were guilty of misconduct in inspecting the features of the child, the instruction given by the court was sufficient to cure any error that may have been committed, so far as any question is presented to us by the record. We must assume, in the absence of any showing to the contrary, that the jury gave due heed to the instruction given, and were not in any manner influenced or governed by the

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claimant asks that he have judgment against the estate and said Surrilda Huffmond for the amount of his claim, and that the same be declared a lien upon all of said real estate so conveyed to and now owned by the said appellant, describing it, and that the same be subjected to sal or the payment of said claim. The appellant demurred to the complaint for want of facts, and upon the ground that she was an improper party. It is contended that under the contract as stated in the deed the appellant was not under any obligation to furnish medical aid. We cannot concur in such a construction of the contract. It appears from the averments in the complaint that Jane and David Rudisill conveyed to their daughter, the appellant, all the real estate they owned, and being all of their property; she agreeing in consideration therefor to "board, nurse, and take proper care of them, the said Jane Rudisill and David Rudisill, during their natural lives." The agreement to board, nurse, and take proper care included the doing and furnishing to them whatever was reasonably necessary for their subsistence and comfort. It would be unreasonable to so construe such an agreement as that the child might stand by in times of sickness and permit the parent to suffer and die from want of reasonable and proper medical aid, and yet not be liable for a breach of the contract. Such treatment and neglect would not be a compliance with the contract, either in regard to the nursing or taking proper care. To nurse and take proper care, in the sense in which they are used in this agreement, mean to supply the grantors with and to do for them whatever was necessary in case of sickness to restore them to health again; and, if the appellant could not supply such wants or render such services in person, she was bound to provide them such nursing and care, even if she had to employ others to render the services. The contract did not limit the appellant's liability to such nursing and care as she was able to render to them in person.

The complaint alleges facts showing a necessity for the reduction of the hernia, and that it was proper care and nursing to have it reduced; that the decedent requested the appellant to have it done, to employ a physician, and she refused to do so, and thereupon he called upon and em ployed the claimant Bence, who undertook to and did reduce it; and that proper nursing required the reduction of the hernia. The averments of the complaint show that the appellant refused to comply with her contract and perform her part of the agreement she had entered into with the decedent, and he was com. pelled to procure another person to do what the appellant had agreed to do. Under the decisions of this court he had a right at least to recover from her the amount he was compelled to pay by reason of her neglect and refusal to comply with her contract, and to have it declared a lien upon the property so conveyed to her as a consideration for such services. Some of the decisions even go far enough to hold it to be a consideration subsequent, the non-performance of which

worked a forfeiture of the land conveyed; but it is not necessary to go to that extent in this case. Hamilton v. Barricklow, 96 Ind. 398; Lindsay v. Glass, 119 Ind. 301, 21 N. E. Rep. 897; Richter v. Richter, 111 Ind. 456, 12 N. E. Rep. 698; Ikerd v. Beavers, 106 Ind. 483, 7 N. E. Rep. 326; Copeland v. Copeland, 89 Ind. 29. The decedent having the right to call upon claimant to render the services contracted to be performed by the appellant, and which she failed to render, and having a right to collect from her the amount necessarily paid out, and having a lien declared; the appellee, Bence, having performed the services at the request of the decedent, the value of which the decedent had a right to recover, and had a lien securing the same,-the appellee, Bence, had the right in equity to be substituted to the rights of the estate. To illustrate the principle more clearly, suppose the debt had matured in the life-time of the decedent, the parties would be in the position of the decedent owing the debt to Bence, and his daughter would be owing it to the father, the decedent, and it would be secured by a lien on the real estate. The father being insolvent, the only method by which the debt could be collected would be by foreclosure of the lien. If the appellee, Bence, could not be subrogated to the rights of the father by reason of the debt secured by the lien being in fact due to him, he would be without remedy. Certainly, under such circumstances, in the life-time of the father the appellee, Bence, could have enforced the lien and collected his debt, and he does not lose this right by his death. The same principle is applicable as in case of a surety holding an indemnity. As in case of a surety taking a mortgage indemuifying him against the payment of the debt of the principal, the surety being insolvent, the creditor may be subrogated to the rights of the surety, and foreclose the mortgage given to the surety to secure the debt. In this case the appellant Mrs. Huffmond is in fact the principal debtor; she is the person ultimately liable to pay the debt, though upon the face of the contract she is liable directly to her father, and the debt is secured by a lien upon her land. In principle, it is like unto a case where A. and B. make an agreement whereby A. purchases property of C. and gives his note to C. for the amount. Afterwards A. turns over the property to B., and B. gives A. a mortgage to indemnify him against the pay. ment of the debt. A. is insolvent. A suit against him by C. would be of no avail; but B. has agreed and is liable for the payment of the same debt to A., and has received a consideration for such agreement, and has secured its payment by a mortgage. Clearly C. would have a right to be subrogated to the rights of A., and foreclose the mortgage and collect his debt. In this case, Mrs. Huffmond, by the contract, indemnified David Rudisill, by a lien upon her real estate, against any expense or liability for services in being nursed and taken proper care of during life. She fails to comply with the agreement, and he is compelled to and does call upon Bence to render to him the services Mrs.

Huffmond had agreed to render. Mrs. Huffmond is liable to pay to Rudisill the value of the services, but he has no money or property wherewith to pay for the same, and it is but equity that Bence should have the right to be subrogated to the rights of Rudisill, and collect from Mrs. Huffmond the debt. It is but permitting the relief to be granted in the one action which otherwise would require two. The identical debt for which Mrs. Huffmond is liable is due to Bence, who rendered the services. Mrs. Huffmond was in fact the principal debtor, and her father was her surety, though primarily liable to Bence. It is settled law that securities held by a surety for the payment of a debt are held by him for the payment of the debt, and the creditor may resort to them for the collection of his debt. See Rittenhouse v. Kemp, 37 Ind. 258-262, and authorities cited. Sanders v. Weelburg, 107 Ind. 266, 7 N. E. Rep. 573. In Rooker v. Benson, 83 Ind. 250, it is held that subrogation does not depend on privity nor strict surety. ship. It is the mode by which equity compels the ultimate discharge of a debt by him who in good conscience ought to pay it, and to release him whom none but the creditor could compel to pay it; and this doctrine is applicable to the facts in this case. There was no error in overruling the demurrer.

The next error assigned is the sustaining of the demurrer to the second paragraph of the appellant's answer. There is no discussion of the question presented by this ruling except to say that it is a good answer. We think there is no error in sustaining the demurrer. The next error is that the court erred in overruling appellant's motion and request to try the issues in the case by a jury. In Ketcham v. Coal Co., 88 Ind. 515, it is held that this question can only be presented by a motion for new trial. The only additional error discussed relates to the sufficiency of the evidence. There is some evidence supporting the finding, and we cannot disturb it. There was no objection to the order and judgment in the case, and no motion to modify it, and no question is presented as to the right of the appellee to a lien upon the real estate purchased and conveyed to the appellant by the third party in lieu of the lot originally conveyed by the Rudisills. Judgment affirmed, at costs of the appellant.

COFFEY, J., took no part in the decision of this case.

(128 Ind. 145)

BUDD V. REIDELBACH.

(Supreme Court of Indiana. April 25, 1891.) DRAINAGE-HEARING ON APPEAL.

In proceedings for the construction of a public ditch, where viewers were appointed, and reported first adversely to the petitioner, and subsequently, by order of the commissioners' court, met and reported in his favor, an objection, not raised before the board of commissioners, will not be heard on appeal in the circuit court.

Appeal from circuit court, Pulaski county: GEORGE BURSON, Judge.

Nye & Nye, for appellant. Spangler & Steis, for appellee.

ELLIOTT, J. The appellee petitioned for the construction of a public ditch. Viewers were appointed. They first reported adversely to the petitioner, but subsequently met under the order of the court, and reported in his favor. The appellant's land was assessed. He did not, so far as the record discloses, file any motion or remonstrance in the commissioners' court nor in the circuit court. He appealed from the order of the commissioners, and insists upon a reversal of the judgment of the circuit court, upon the ground that it erred in overruling his motions for a venire de novo and for a new trial. The verdict reads thus: "We, the jury, find for the petitioner, Reidelbach, that the proposed ditch will be of public benefit and utility; that the assessments for its construction are in proportion to its benefits; and that the route thereof is practicable." This verdict finds all that the statute under which the proceedings were had requires the board of commissioners to find. Rev. St. 1881, § 4294. This we deem sufficient, in view of the fact that no remonstrance was filed by the appellant. We do not mean to be understood as holding that it was necessary for the verdict to be as full as it is, for the appellant presented no issue for trial. We cannot, indeed, perceive up. on what ground he had a right to go to the jury. He acquiesced in the finding of the viewers, because he made no objection. It has been again and again decided in this class of cases that only such objections can be relied on in the circuit court as were appropriately presented to the board of commissioners. Updegraff v. Palmer, 107 Ind. 181, 6 N. E. Rep. 353; Lipes v. Hand, 104 Ind. 503, 1 N. E. Rep. 871, and 4 N. E. Rep. 160; Smith v. Smith, 97 Ind. 273; Rominger v Simmons, 88 Ind. 453; Lowe v. Ryan, 94 Ind. 450; Reynolds v. Shults, 106 Ind. 291, 6 N. E. Rep. 619; Green v. Elliott, 86 Ind. 53. In the case of Metty v. Marsh, 124 Ind. 18, 23 N. E. Rep. 702, it was said: "It has been so often adjudged by this court, in cases analogous to this, that no matter not put in issue before the board of commissioners can be tried on appeal to the circuit court, that little can be said in elaboration of the principle." The error of the trial court was in permitting a trial, since there was no issue to try; but of this the appellant cannot complain. What we have said effectually disposes of the specification of error based on the ruling denying a new trial. Judgment affirmed.

RIES V. MCCLATCHEY.

(128 Ind. 125)

(Supreme Court of Indiana. April 24, 1891.). EXEMPTIONS JOINDER OF CAUSES OF ACTIONCONTRACT AND TORT.

In an action to set aside a sheriff's sale of land, it appeared that plaintiff recovered a judg ment upon a complaint uniting two causes of action in tort with one on contract. Held, that defendant is entitled to treat the judgment as one rendered upon contract, and to claim his exemption.

Appeal from circuit court, Warren county; J. M. RABB, Judge.