ing officers, and under the organization thus effected the defendants were assuming to act as a corporation, and were claiming to own and operate the West Liberty gravelroad. Judgment for the defendants below. press authority on the board of directors to sell any portion or section of the road, together with the franchises pertaining thereto. It is apparent that the sale and conveyance by the board of directors were intended merely as a consummation and confirmation of the execution sale theretofore made, which was of doubtful validity. That the corporation might thus ratify and confirm the sale there can be no doubt. The suggestion that the sale was made without consideration is not sustained by the record. The averment is that the transfer was made in consideration of the previous purchase at the constable's sale, and the further consideration that the purchaser agreed to place and keep the road in repair. In the absence of anything appearing to the contrary, this must be assumed to be a sufficient consideration to uphold the sale. At all events, the sale having been made in pursuance of statutory au thority, so long as the parties interested are content it is not for the state to inquire whether or not the consideration was adequate, nor can the state assail the purchase on the ground that it was the result of a scheme to perpetrate a fraud upon certain of the stockholders. While the stockholders are satisfied, it is not for the state to assume to vindicate their rights by means of a proceeding like the present. It is said that the statute makes no provision for the reorganization of a corporation after its property has been sold. The statute, however, does provide that a gravelroad may be sold on execution, and that the Whether or not this was a sufficient answer is the principal, if not the only, question for consideration. On behalf of the state, it is insisted that, while the tangible property of the corporation was liable to be sold on execution, its incorporeal rights and franchises could not be thus sold, so as to confer upon the purchaser the right to reorganize a new corporation. It is undoubtedly true that the franchise to be a corporation is not a subject of sale, unless the law by some positive provision has made it so. Railway Co. v. Boney, 117 Ind. 501, 20 N. E. Rep. 432. While this is so, it has been repeatedly held that the statutes which provide for the organization of gravel-road companies, and the construction of gravel-roads, also indicate that the property and franchises of such corporations may be sold on execution. Rowe v. Major, 92 Ind. 206; Gravel-Road Co. v. State, 105 Ind. 37, 4 N. E. Rep. 316. Section 3646, Rev. St. 1881, enacts that, upon execution issued upon any judgment or decree against a gravel-road company, property may be taken and sold without any valuation or appraisement. Section 3654 declares that, in the event of the sale of any gravelroad upon any judgment rendered against the same, a director or officer of the company shall have the same right to purchase such road that any other person might have under existing laws. These sections clear-corporation may sell and convey its proply imply that the road may be sold. The sale of the road must necessarily carry with it the franchise, the right to operate it. Section 3665, Rev. St. 1881, provides, in effect, that any gravel-road company may sell any part or section of its road to any other party or corporation, at such price and upon such terms as may be mutually agreed upon, and gives authority to convey by deed the section or portion of the road so sold, together with all the rights, properties, and franchises thereunto pertaining. Authority to sell any part or section of the road is equivalent to authority to sell the whole. The rule is that, whatever the corporation might voluntarily alienate, its creditors may subject to sale by adverse process. Railway Co. v. Boney, supra; Coe v. Railroad Co., 10 Ohio St. 372. We are not to be understood as holding, however, that property partaking of the character of realty, together with the incorporeal rights and franchises of a gravel-road corporation, may be sold by a constable on an execution issued by a justice of the peace. As it is not necessary to do so, we decide nothing upon that subject here. Whether the constable's sale was valid or invalid is not important in the present case, as it appears that the board of directors of the corporation subsequently sold and conveyed all its property and franchises to Hare, who purchased at the constable's sale, and who paid the judgments upon which the sales were made. As we have already seen, the statute authorizes the sale upon execution of a gravel-road and its franchises, and it also confers ex erty and transferits franchises to any other (121 Ind. 301) CITIZENS' BANK V. BOLEN et al. 1. Where the parties go to trial before the cause is actually at issue, they waive all questions which would otherwise be available to them because of the absence of the necessary pleadings. 2. Where the record recites that the cause was at issue at the time it was submitted to the court for trial, it will be presumed the proper pleading was on file. 3. A venire de novo will not be awarded where the special finding or special verdict is not defective in form. 4. If the verdict or finding does not cover all the issues in the case, or all the material facts involved in any of the issues in the case, the remedy is by motion for a new trial, and not for a venire de novo. 5. Where a fact material to any issue in the case is omitted from the special finding or the spe cial verdict, the presumption is that there was not evidence sufficient to establish the fact. 6. The omission, in such case, is equivalent to a finding against the party having the burden of the issue as to that fact. 7. Where a wife has an inchoate right in the lands of her husband, she has a right, on exchange by her husband of the same for other lands, to get the best price she can for her inchoate interest, without reference to her husband's financial condition. 8. In Indiana the question of fraudulent intent is a question of fact, and in an action in the form of a creditor's bill to set aside a conveyance, where there is a special finding, the fraudulent intent must be found as a fact. Appeal from circuit court, Jay county; J. R. BOBO, Judge. Action by Citizens' Bank against Frank Bolen and others, on two promissory notes, and to subject certain real estate to the payment of the notes. Judgment for defendants, and plaintiff appeals. Jaqua & Jaqua and Taylor & Hartford, for appellant. Headington & La Follette, for appellees. BERKSHIRE, J. This was an action upon two promissory notes, and to subject certain real estate to sale, to satisfy whatever judgment the appellant, who was the plaintiff in the court below, might recover upon the notes. The complaint, as originally filed, was in two paragraphs, the first of which was afterwards amended, and filed as an amended paragraph. Demurrers were filed and overruled to these paragraphs of complaint, after which the appellees answered by general denial. Afterwards, and by leave of court, the appellant filed two additional paragraphs of complaint, numbered 3 and 4, respectively. The appellees, having been ruled to answer these paragraphs, filed an answer in one paragraph. To this paragraph of answer a demurrer was filed, which was sustained by the court. The record then recites that, the cause being at issue, it was submitted to the court for trial. The first paragraph of complaint is an action on a promissory note and a creditors' bill, combined. The note was executed by the appellee Frank D. Bolen, payable in the appellant's bank and to one A. W. Cunningham, and by him indorsed to the appellant before maturity. The ordinary allegations found in a creditors' bill to set aside an alleged fraudulent conveyance are found in this paragraph of complaint, and, among others, that the female appellee, to whom the conveyance was made, paid no consideration therefor, and had notice of the fraudulent design charged against the appellee Frank D. Bolen. It is also charged that the appellees entered into a conspiracy to defraud the creditors of the appellee Frank D., and that the conveyance to the appellee Rebecca M. was the culmination of the conspiracy. The second paragraph of complaint does not differ from the first, except that it rests upon a promissory note executed to Stephens & Son, and payable to their order, in the appellant's bank, and indorsed to appellant, for value, before maturity. The third paragraph of complaint rests upon the same obligation as the first paragraph, and only differs from it in that it omits the allegation of conspiracy, and, in stead of a purchase and payment of the purchase money of the real estate here involved by the appellee Frank D., it is alleged that he exchanged other lands for the said real estate, and directed that it be conveyed to the female appellee. The fourth paragraph of complaint is the same as the third, except that it rests upon the same obligation as the second. At the request of the appellant, made at the proper time, the court made a special finding. Upon the special finding as made by the court, it rendered judgment upon the obligations sued upon against the appellee Frank D. Bolen, for $173.76, and judgment for the appellees as to the bona fides of the conveyance executed to the female appellee. The appellant filed a motion for a venire de novo, which the court overruled, and the proper exception was taken. It then moved the court for a judgment non obstante on the ground that the appellees filed no further answer to the third and fourth paragraphs of complaint after the sustaining of the demurrer to the answer filed by them, as heretofore stated. There was also a motion to vacate the judgment rendered, and to render a judgment for the appellant, which presents the same question that is presented by the motion last above. The substance of the errors assigned are: (1) The court erred in its conclusions of law upon the facts found; (2) the court erred in overruling the motion for a judgment in favor of the appellant upon the third and fourth paragraphs of the complaint; (3) in overruling the motion to vacate the judgment; and (4) in overruling the motion for a venire de novo. In the face of the recital in the record that the cause was at issue when it was submitted to the court for trial, we cannot very well see how it can be successfully maintained that there was not a sufficient answer on file at that time to the third and fourth paragraphs of complaint. Without such an answer, the cause was not at issue. But, were it otherwise, it has been long and well settled by numerous decisions of this court that where the parties go to trial before the cause is at issue they waive all questions which would otherwise be available to them because of the absence of the necessary pleadings. Lange v. Dammier, 119 Ind. 567, 21 N. E. Rep. 749; Trentman v. Eldridge, 98 Ind. 525; June v. Payne, 107 Ind. 307,7 N. E. Rep. 370, and 8 N. E. Rep. 556; Johnson v. Briscoe, 92 Ind. 367; City of Warsaw v. Dunlap, 112 Ind. 576, 11 N. E. Rep. 623, and 14 N. E. Rep. 568. It is well settled that a venire de novo will not be awarded where the special finding or special verdict is not defective in form. If the verdict or finding does not cover all the issues in the case, or all the material facts involved in any of the issues, the remedy is by a motion for a new trial, and not for a venire de novo. Phelps v. Smith, 116 Ind. 387, 17 N. E. Rep. 602, and 19 N. E. Rep. 156; Elston v. Castor, 101 Ind. 426; Railroad Co. v. Finnell, 116 Ind. 414, 19 N. E. Rep. 204; Railroad Co. v. Hart, 119 Ind. 277, 21 N. E. Rep. 753, and cases cited. It cannot be successfully maintained that the special finding is defective in form. The contention is that it does not find as to all the facts which are involved in the issues that the court was called upon to try. | The presumption is that, where a fact material to any issue in the case is omitted from the special finding or special verdict, there was not evidence sufficient to establish the fact, and the omission is equivalent to a finding against the party having the burden of the issue as to that particular fact. The facts found by the court were substantially as follows: On the 20th day of October, 1885, the appellee Frank D. Bolen was the owner of 50 acres of land, of the value of $1,700, and two town lots, of the value of $150, and continued such owner until the 11th day of October, 1886, when he, together with his wife and co-appellee, conveyed the same to one Daniel Teeters, in consideration of the assumption by Teeters of incumbrances on the property, and other debts of the said appellee Frank D., amounting to $980, and the conveyance by Teeters to the female appellee of real estate in the town of Portland, Jay county, Ind., (the property involved in this action,) of the value of $900. Among other incunbrances on the 50-acre tract was a mortgage for $540, in which the appellee Rebecca M. had joined. At the instance of the appellee Rebecca M., the appellee Frank D. caused the conveyance to be executed to her, in consideration of the execution by her of the deed to Teeters. At the time of these transactions the female appellee had notice of the financial condition of her husband. At the time she joined in the conveyance to Teeters the inchoate interest of the appellee Rebecca M. was of the value of $600. After the conveyance to Teeters, the appellee Frank D. was still indebted in the sum of $330, besides the indebtedness which Teeters assumed, and the value of the property still owned by him was $135; and at no time thereafter did he have property, subject to execution, sufficient to pay his indebtedness. During all of said time the said appellee was a resident householder of said county of Jay. That the appellee Rebecca M. refused to join in the conveyance to Teeters, except upon the condition that the Portland property be conveyed to her. From the facts as stated in the special finding, the court could not do otherwise than to state, as a conclusion of law, that the conveyance to the appellee Rebecca M. was a legal and valid conveyance. The question of fraudulent intent is a question of fact, and not of law, under our statute; and, in an action in the form of a creditors' bill, to set aside a conveyance as fraudulent, where there is a special finding, a fraudulent intent must be found as a fact. Othewise, the conveyance cannot be held to be fraudulent as to creditors. Phelps v. Smith, 116 Ind. 387, 17 N. E. Rep. 602, and 19 N. E. Rep. 156; Rose v. Colter, 76 Ind. 590; Elston v. Castor, 101 Ind. 426; Stix v. Sadler, 109 Ind. 254, 9 N. E. Rep. 905; Bartholomew v. Pierson, 112 Ind. 430, 14 N. E. Rep. 249. The appellee Rebecca M. held an inchoate right in the real estate conveyed to Teeters of the value of $600. This she was under no obligation to convey or surrender. She had a right to sell her inchoate right, and get the best price she could for it, without reference to her husband's financial condition; and, if she acted in good He, being a householder, was entitled to an exemption of $600. Whatever of the indebtedness which Teeters assumed that was not an incumbrance on the propertyand the amount does not appear-was a mere preference by the debtor of some of his creditors, which was his right; and, as what remained was not equal to the inchoate right of the appellee Rebecca M. and the exemption of the appellee Frank D., the appellant was not damaged in consequence of the conveyance to the female appellee, and has no cause to complain. Phelps v. Smith, supra; Blair v. Smith, 114 Ind. 114, 15 N. E. Rep. 817; Dumbould v. Rowley, 113 Ind. 353, 15 N. E. Rep. 463; Barnard v. Brown, 112 Ind. 53, 13 N. E. Rep. 401; Taylor v. Duesterberg, 109 Ind. 165, 9 N. E. Rep. 907; Faurote v. Carr, 108 Ind. 123, 9 N. E. Rep. 350; Burdge v. Bolin, 106 Ind. 175, 6 N. E. Rep. 140. Judgment affirmed, with costs. (121 Ind. 307) MARQUADT v. SIEBERLING et al. (Supreme Court of Indiana. Dec. 19, 1889.) APPEAL-RECORD-INSTRUCTIONS. Instructions cannot be brought before the supreme court on appeal by the mere report of the stenographer, where it does not appear that they were signed by the judge or filed by the proper officer. Appeal from superior court, Allen county; A. A. CHAPIN, Judge. Randall & Vesey and A. A. Purman, for appellant. Colerick & Oppenheim, for appellee. ELLIOTT, J. The evidence, as the appellee contends, is not properly in the record, and the instructions certainly are not. Instructions cannot be brought before this court by the mere report of the stenographer, where it does not appear that they were even signed by the judge or filed by the proper officer. Judgment affirmed. (121 Ind. 312) SMITH V. GOODKNIGHT et al. (Supreme Court of Indiana. Dec. 19, 1889.) GRAVEL-ROADS-INJUNCTION. A bill to enjoin the condemnation of land, or gravel thereon, for the construction of a free gravel-road, which alleges that the commissioners have established a second gravel-road, for which plain- | needed for the construction of a large por tiff's land will be taxed; that the gravel on his land can easily be used for the construction of the second road; and that the cost of its construction will be much greater if the gravel is taken for the first road, cannot be maintained, as Rev. St. Ind. 1881, §§ S96, 905, relating to assessment of damages to land by the construction of such roads, furnish an adequate remedy. Appeal from circuit court, Tipton county; DANIEL WAUGH, Judge. Proceedings in injunction by John D. Smith against Isaac M. Goodknight, Jefferson Kemp, Silas I. Davis, and Dow Hinkle. There was judgment for defendants, and plaintiff appealed. Gifford & Fippen and Beauchamp & Mount, for appellant. Waugh & Kemp and Blacklidge, Blacklidge & Moon, for appellees. OLDS, J. The appellant filed his complaint in the Tipton circuit court against the appellees, Isaac N. Goodknight, Jefferson Kemp, Silas, I. Davis, and Dow Hinkle, for injunction. The complaint is in two paragraphs, the averments of which are subtantially the same. The appellees demurred separately to each paragraph of the complaint, for cause that neither of said paragraphs stated facts sufficient to constitute a cause of action. The court sustained the demurrer to each paragraph; to which ruling appellant at the time excepted, and assigns such ruling as error. The facts alleged in the complaint are substantially as follows: That on the 11th day of March, 1888, the board of commissioners of the county of Tipton ordered the construction of a gravel-road in the county of Tipton, known as the "Tipton, Normanda & Kempton Free Gravel-Road," describing the location and route of the road. It is then averred that afterwards, on the 12th day of March, 1889, said road was contracted to appellees Isaac N. Goodknight and Jefferson Kemp for construction; that said defendants Goodknight and Kemp, by their contract, were to do all the work, and furnish all the material, for the graveling of said road; that the plaintiff is informed and believes that said contractors have sublet a part of the contract to the defendants Davis and Hinkle. It is further averred that on the 11th day of March, 1889, the board of commissioners ordered and adjudged that gravel-road No. 20 be located on the following route, (describing it;) that said last mentioned road has not been contracted, but that all preliminary steps have been taken for the same; that said road is to be contracted whenever the bonds for the building of said road can be legally sold, and many other steps being taken as required by law, and the costs of said improvement has been estimated; that plaintiff has several hundred acres of land which are affected by said highway, and will be taxed for its construction; that he has, as he believes, gravel and materials situated on his land, which land is described as follows, (setting out a description;) that said gravel is such as was contemplated and specified in the orders of the court for the construction of said road No. 20; that said gravel and material are the most convenient, and of the best quality, that can be tion of said gravel-road No. 20; that the estimate for the construction of said lastmentioned gravel-road was made upon the basis and with the view of said road, or a large amount of it, being constructed and built out of said gravel; that he believes said road cannot be constructed for the estimated cost thereof, if said gravel is used for the construction of the first-mentioned road; that said gravel is a necessity, as plaintiff believes, for the building of said gravel-road No. 20. It is further averred that the contractors on the Tipton, Normanda & Kempton gravel-road are proceeding to and are now surveying said land preparatory to condemning said land, or gravel thereon, for the use and construction of said gravel-road; that plaintiff is informed and believes that if said parties are not restrained they will condemn said gravel, and use the same in the construction of said road, thereby defeating gravel-road No. 20, for the reason that there is no other material within reach of said gravel-road No. 20 that can be placed on said road, at the estimated cost thereof, which can be used in lieu of the gravel in controversy; that plaintiff is a large tax-payer on said gravel-road No. 20; that said road is a public improvement of great importance, leading through one of the best districts of the county; that the defeating of said road, or compelling its construction out of more expensive materials than the gravel herein mentioned, would be an irreparable damage to the plaintiff and the public in general; that the defendants can procure the gravel to construct their said road without injury or damage to the parties taxed to construct road No. 20. Prayer for injunction, etc. Section 13 of the free gravel-road act (section 1484, Elliott's Supp. 1889) provides for the taking of materials by the contractor for the construction of the road, and prescribes a mode for the assessment of damages to the owner of the land or materials taken, and provides for an appeal to the circuit court by the person aggrieved. No limitation is put upon the question to be tried in such proceedings. In the statute providing for the assessment of damages (section 896, Rev. St. 1881) it is provided that "any defendant may appear, and traverse any material fact therein stated in the inquest, or he may plead or show any valid matter in bar of the right of the plaintiff to have the benefit of such writ; and issues of law and of fact may be made up and tried," etc. Section 905, Id., provides that "when any person, corporation, or company designs to construct a canal, or railroad, or turnpike, graded, macadamized, or plank road, or bridge, or establish a ferry, as a work of public utility, although for private profit, being authorized by law to take real property therefor, such person, corporation, or company may have a writ of assessment of damages." By the free gravel-road act the contractor is authorized by law to take real property for the construction of a graded and gravel road of public utility, and is granted the right of a writ for the assessment of damages, and no limit is provided as to the questions to be tried. These various statutes constitute one general system of legal procedure, and must be construed together, and, when so construed, give to the landowner a just and adequate remedy at law. See Swinney v. Railroad Co., 59 Ind. 205, and authorities cited in that opinion. It has been repeatedly held by this court, and is the settled law of this state, that when a party has a just and adequate remedy at law the extraordinary remedy of injunction will not lie. Hendricks v. Gilchrist, 76 Ind. 369; Ricketts v. Spraker, 77 Ind. 371; Caskey v. City of Greensburgh, 78 Ind. 233. The complaint in this case does not state any grounds for the relief asked. It does not show that the gravel sought to be appropriated is not subject to such appropriation. True, it alleges that the second gravel-road was located, and cost of construction estimated, with a view of constructing it with the gravel in controversy, and no other gravel is as convenient for use in the construction of it as the gravel on the lands of the plaintiff, and that to defeat the construction of the road, or to require its construction with more costly material, would be an irreparable damage to the plaintiff and the general public; but these facts are not such as to entitle the party to injunctive relief. If the gravel is subject to be taken by the contractors, the question of the amount of gravel in that locality, or the scarcity of it, and the use about to be made of it, might be a matter which would affect its value, and bear upon the question of damages to be assessed. There was no error in sustaining the demurrer to the complaint. Judgment affirmed, with costs. (121 Ind. 342) SULLIVAN et al. v. STATE ex rel. LANGSDALE. (Supreme Court of Indiana. Dec. 20, 1889.) CLERK OF COURT-BONDS-LIABILITY OF SURETIES. 1. In an action by an administrator de bonis non against a clerk of the circuit court for a breach of bond, the complaint alleged that defendant had given bond conditioned that he would faithfully discharge the duties as such clerk, and pay over to the persons entitled thereto all money coming into his hands as such clerk; that as such clerk money belonging to plaintiff's intestate had come into his hands to be held in trust until the further order of the court; that he had not held the money in accordance with this order, but had spent and wasted it, and fled to parts unknown,-whereby plaintiff had been damaged. Held that, as the complaint did not seek a recovery of the money, but damages for its waste, it showed a cause of action in the plaintiff, though it appeared by the complaint that the money had been deposited with the clerk by plaintiff's predecessor as administrator, and no order was shown to pay it to plaintiff. 2. In such action the sureties on the bond of the clerk cannot avoid their liability by showing that the plaintiff agreed with the clerk that he should retain the money so deposited in his hands, and pay interest therefor to the plaintiff. 3. Indiana act of December 18, 1851, providing that, the duties theretofore devolving on associate judges of the circuit court in the approval of official bonds of certain officers should hereafter devolve upon the board of commissioners of the proper county, refers only to the approval of original bonds, and does not confer upon the board of commissioners the power of releasing sureties on such bonds upon the presentation of a new bond. Appeal from superior court, Marion county; L. C. WALKER, Judge. This action was brought by the relatrix, Elizabeth Langsdale, as administratrix de bonis non with the will annexed of the estate of Mary Ferrell, deceased, against John E. Sullivan, William K. Sproule, James Renihan, James B. Conaty, and Daniel Burton, for a breach of the official bond of said Sullivan, as clerk of the circuit court, the other defendants being sureties on the bond. There was judgment for plaintiff, and defendants appealed. John A. Holman and Duncan & Smith, for appellants. Robt. Denny and John R. McFee, for appellee. OLDS, J. This action was brought by the relatrix, Elizabeth Langsdale, administratrix de bonis non with the will annexed of the estate of Mary Ferrell, deceased, against John E. Sullivan, James B. Conaty, William K. Sproule, and Daniel Burton, on the official bond of John E. Sullivan, clerk of the circuit court of Marion county. The defendants named in the complaint other than Sullivan were sureties on the bond. Defendant Burton filed a separate demurrer to the complaint for want of sufficient facts, which was overruled, and exceptions taken. Burton then answered by general denial and three special paragraphs. Plaintiff filed demurrer to each of the special paragraphs. The demurrer was sustained to each paragraph, and exceptions. Burton then withdrew his answer in general denial, and refused to plead further. The other defendants answered by general denial. The cause was then submitted to the court, and trial had, resulting in a finding and judgment against all of the defendants. Burton made a motion to modify the judgment, which was overruled, and exceptions reserved. Burton appeals, the other defendants refusing to join. Errors are assigned as to these rulings of the court. Omitting the caption, the complaint is as follows: "The state of Indiana, on the relation of Elizabeth Langsdale, administratrix de bonis non with the will annexed of the estate of Mary Ferrell, deceased, complains of said defendants, John E. Sullivan, William K. Sproule, James Renihan, James B. Conaty, and Daniel Burton, and says that prior to the 9th day of November, A. D. 1886, the said defendant John E. Sullivan was duly elected clerk of the circuit court in and for Marion county, in the state of Indiana, and on said day was qualified according to law, and entered upon his duties as such; that on said 9th day of November, A. D. 1886, he executed his bond according to law, with said William K. Sproule, James Renihan, James B. Conaty, and Daniel Burton as sureties, which was duly filed and approved by the board of commissioners of said county, according to law, [a copy of said bond is herewith filed, marked Exhibit A,' and is made a part hereof;] that the said bond was conditioned, among other things, that said John E. Sullivan ‘shall faithfully discharge the duties of said office of clerk of the circuit court in and for Marion county, and shall pay over to the person or persons entitled to the same all moneys that may come into his hands;' |