BERKSHIRE, J. The appellants filed a claim with the appellee on account of the publication in their newspaper of the list of allowances made by the latter at their March session, 1889. The amount of the claim was $44, and the amount allowed by the appellee was $15. From the allowance made by the appellee the appellants appealed to the circuit court, and judgment was rendered therein for the appellants for the sum of $15; and from that judgment this appeal is taken.

The controversy grows out of the construction which the parties give to sections 5765 and 6011, Rev. St. 1881. The firstnamed section came into force August 24, 1875, and the latter section, May 31, 1879. Section 5765 reads as follows: "The auditor of each county of the state shall be required to publish, in a newspaper of the largest circulation in his county, a statement showing all allowances made by the county commissioners at each term of their court, to whom the allowances are made, and for what purpose: provided, that the printing thereof shall not exceed five cents for each allowance." So much of the said section 6011 as concerns this controversy reads thus: "Advertising growing out of any duty of any city, county, or township officer, executor, administrator, guardian, trustee, or assignee, except the printing of the delinquent tax-list, shall be by such officer charged up, collected, and paid over to the printer; and, when such printing is done for the county, the board of county commissioners shall allow the same, and pay it out of the county treasury, according to the rate herein fixed. The compensation for such advertising shall be as herein set forth, to-wit, for each advertisement, per square of two hundred and fifty ems, first insertion, one dollar." The contention of the appellants is that section 6011, by implication, repeals the proviso in section 5765, and controls as to the price to be paid for the publication provided for in the former section. It is unnecessary to cite authorities to support the assertion that the rule which favors the repeal of statutes by implication is not followed by the courts. It is well settled that where apparently inconsistent statutes will bear either of two constructions, and by one of these constructions force and effect will be given to both statutes, and by the other all or a part of one of them will be stricken down, that construction will be followed which will enable all to stand. It is only where there is such inconsistency in the provisions of the statutes that no reasonable construction can be found whereby both statutes may be upheld that the earlier statute will be regarded as repealed by the later one. But, in our opinion, section 6011 is not in conflict with the proviso in section 5765. This last section simply provides for the publication of the list of allowances as made by the board of commissioners, and the compensation to be received therefor. The board of commissioners make the allowances. With this the auditor has nothing to do. The publication does not grow out of any duty he has

to perform. All that he does is to see that the publication is made. Section 6011, recognizing the fact that the officers and persons acting in a fiduciary capacity therein named have certain duties to perform wherein it is necessary to make publication in a newspaper, confers upon them authority to have such advertising done as grows out of the performance of those duties. This section of the statute is only available where the officer or fiduciary has to transact some duty, and in connection therewith he is required to make publication in a newspaper. To illustrate: An executor or administrator is required to sell real estate for the payment of debts. Notice by publication is required before he can make a valid sale; and the ditch law found in Rev St. 1881, § 4303, makes it the duty of the county auditor to give notice before he lets the contracts for building the ditch. In our opinion, the court below placed the proper construction upon the statutes in question. Judgment affirmed, with costs.

(121 Ind. 455)

BROWN V. CORBIN et al. (Supreme Court of Indiana. Jan. 14, 1890.) PERSONALTY-CHATTEL MORTGAGE-RECORD-AC

KNOWLEDGMENT.

1. A building erected on land of another by permission of the owner's agent, and sold several times independently of the land, one-half being bought by one who afterwards buys the land without disputing the title of the owner and occupant of the other half, is personal property.

2. Description of the mortgagors as of the county where record was made is sufficient, prima facie, to show that the mortgage was recorded in the county where the mortgagors reside.

3. A certificate that "personally appeared A. P. and N. P., his wife, acknowledged, " etc., shows an acknowledgment by both husband and wife.

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

J. McCabe & Son, for appellant. Rhodes, for appellees.

Wm.P.

OLDS, J. The complaint in this action is for the foreclosure of a mortgage on lots 1 and 2 in the town of Williamsport, in Warren county, and on the undivided one-half of a building occupied as a meat-market, situate on Monroe street, in said town, on the east side of said street, on lot 7, in Ellisworth's addition to said town of Williamsport. The mortgage was executed by appellees Augustus Palin and Nancy J. Palin, his wife, to Amos Martin, on the 9th day of January, 1885, to secure a note for $120; and said mortgage was recorded in the recorder's office of said county on the same day. On December 29, 1886, the said Amos Martin transferred the note and mortgage, by indorsement in writing, for a valuable consideration, to appellees William Corbin and Samuel B. Matthis, who brought this action for the foreclosure of the mortgage, making Augustus Palin and Nancy J. Palin, his wife, and Huldah A. Brown, defendants, alleging the purchase of the building located on said lot 7 by Huldah A. Brown after the execution of the mortgage. Issues were joined, and the cause submitted to court for trial, which resulted in a finding and judgment for plaintiffs Corbin and Matthis, and a decree

ard not then and there having procured a written prescription therefor from some regular practicing physician of said county of Sullivan. Upon a trial by jury the appellant was acquitted on the first count in the indictment, but was found guilty under the second count, and fined. Over a motion for a new trial the court rendered judgment on the verdict. On the 4th day of March, 1889, Benjamin Howard procured the following prescription, viz: "Pleasantville, Ind., March 4th, 1889. John W. Edwards: Let Benjamin Howard have pint of whisky and glycerine for medicinal purposes. Repeat as needed. WM. A. FLEMING." This prescription, having been presented to the appellant near its date, was filled by him. On the trial of this cause, after proof that William A. Fleming was a regular practicing physician, the appellant offered said prescription in evidence, and offered to prove that the sale with which he is charged in the second count of the indictment was made under this prescription. To this offered evidence the court sustained an objection. The appellant also offered to prove that the physician who gave Howard the prescription told him, between the 4th and 10th of March, to continue the prescription until he ordered a change; but the court refused to allow this offered testimony to go to the jury. The appellant also offered to prove that Howard was afflicted with a throat trouble, and that whisky and glycerine was a proper medicine for him, and that the sale with which he is charged was made, in good faith, for medical purposes; but the court sustained an objection to this offered testimony, and the appellant excepted. The court instructed the jury that, to justify a sale of intoxicating liquor on Sunday by a druggist, the prescription must be presented at the time of the sale. The motion for a new trial and the assignments of error call in question the correctness of the above several rulings of the Sullivan circuit court.

As the appellant was acquitted on the first count of the indictment, it is not necessary to give it any further consideration. Indeed, it is to be inferred from the record that the state on the trial relied wholly upon the charge contained in the second count. Section 2099, supra, provides that it shall be unlawful for any druggist or druggist's clerk to sell, barter, or give away any spirituous, vinous, malt, or other intoxicating liquor on Sunday, or upon the 4th day of July, the 1st day of January, the 25th day of December, (commonly called "Christmas,") Thanksgiving day, or any holiday, or upon the day of any state, county, township, primary, or municipal election in the township, town, or city where the same may be holden, or between the hours of 11 o'clock P. M. and 5 o'clock A. M. of any day, unless the person to whom the same is sold, bartered, or given shall have first procured a written prescription therefor from some regular practicing physician of the county where the same is to be sold, bartered, or given away. In a prosecution for the violation of this statute it is no defense that the liquor was sold, in good faith, for medicinal purposes. It was so decided by this court in the case of Barton

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v. State, 99 Ind. 89, and in the case of Tilford v. State, 109 Ind. 359, 10 N. E. Rep. 107. In the case first cited, ZOLLARS, C. J., in a carefully prepared opinion, says: The purpose of sections 2098 and 2099, supra, is to protect the Sabbath day, and the other days therein named, from the evils that might result from the sale of intoxicating liquors. The section is an absolute inhibition upon the sale of such liquors on the days named, to be drank as a beverage. It seems to recognize the right of druggists to sell such liquors for medicinal purposes, but imposes à condition on such sales on Sunday, and that is that the sale shall be made only to those who may have procured a written prescription therefor. The intention is to prohibit the sale on those days, except in cases of sickness; and, in order that this intention shall not be thwarted by feigned sickness, the prescription is required.' In the last case cited, ELLIOTT, C. J., says: "There is a reason, and a solid one, for requiring a written prescription;' for it is evidence of a tangible and lasting form, and it puts a professional man upon record as having deliberately advised a patient to buy, and a druggist to sell, liquor on Sunday. It is an effective means of preventing abuses, and is quite as important in a case where the druggist himself is a physician as in any other." The prescription offered in evidence is somewhat vague and uncertain in its terms. It prescribes whisky and glycerine, but gives no directions as to the proportions in which theyare to be mixed. It directs the druggist to "repeat as needed;" thus leaving it to his discretion to determine when the patient will be in a condition to require another half pint. There is no direction as to how frequently or in what quantities it shall be taken; but all is left to the judgment of the patient. But, whatever else may be said of this prescription, it cannot be said that it advises the patient to buy, or the druggist to sell, on Sunday.

In addition to what was said in the two cases above cited, it may be remarked that, prima facie, every sale of intoxicating liquor on Sunday and the other days named in the statute is unlawful. The burden of showing such sale to be lawful rests upon the person making the sale, and the statute contemplates that such proof shall be in writing. To permit it to be made in any other way would throw open the door to evasions of the plain provisions of statute. It will be observed that the prescription offered in evidence was given six days before the sale for which the appellant was prosecuted. If this were prosecution for selling without license on a week-day, and the question involved was one of a sale, in good faith, for medicinal purposes, this prescription would, perhaps, be strong evidence in the appellant's favor; but, in our opinion, it was no justification of a sale made on Sunday, six days after its date. There is no excuse given, nor was any of-' fered, for not renewing the prescription, if it had been necessary, during a week-day; and when it was offered in evidence to justify a sale on Sunday, under the circumstances in this case, we do not think the court erred in its exclusion. It may not be

and Gustave Conradt filed a cross-complaint based on a junior mortgage. The note and mortgage on which the foreclos⚫ure proceedings of Sallie Herff were founded were executed by John H. and Jane T. Griggs, the father and mother of Anthony W. Griggs, and the note on which Conradt's cross-complaint is founded was executed by Frances and Charles F. Griggs, but the mortgage securing it was executed by John H. and Jane T. Griggs. The appellee, Anthony W. Griggs, was named as one of the heirs of Jane T. Griggs, who had died before the commencement of the foreclosure suit, and was made a defendant to the suit. On the decree sale was made, and the mortgaged property was bought by Henry Reckhart, to whom a deed was executed by the sheriff in November, 1885. The ground upon which the appellee, Anthony W. Griggs, sought to have the judgment reviewed is the discovery of material new matter, and the allegations of his complaint touching that subject are, in substance, these: On the 1st day of January, 1842, Jacob W. Young was the owner of the real estate in controversy, and on that day executed a deed for a valuable consideration to the plaintiff, Warren A. Griggs, Charles F. Griggs, and Oliver M. Griggs, all of whom were infants of tender years, and children of John H. and Jane T. Griggs; that the persons last named immediately took possession of the real estate under the deed, and occupied it thereafter with their children, the grantees in the deed executed by Young, until the 23d day of April, 1862. when they executed a deed for the west half of the lot to Sarah E. Griggs; that Sarah E. Griggs subsequently conveyed the west half of the lot to Jane T. Griggs, and she afterwards conveyed it to Charles F. Griggs; that by the death of Oliver M. Griggs, in 1849, Jane T. Griggs acquired an interest in the property; that at the time Young delivered the deed to John H. and Jane T. Griggs, for the grantees therein named, the plaintiff was two years of age; that he had no knowledge of the deed executed in 1842 by Young, nor any means of knowing that it was in the possession of the persons to whom it was delivered; that it was concealed from him by those persons, and that they caused it to be generally reported that there was an unrecorded deed executed by Young vesting title in them; that at the time the foreclosure suit was instituted the plaintiff had no knowledge or intimation of the existence of the deed executed by Young, nor is there any record thereof.

The complaint shows all the diligence that it was possible for a person in the plaintiff's situation to exercise. He knew nothing of the execution or existence of the deed by Young in 1842, and he cannot be charged with negligence in not searching for an unknown instrument. The rule upon the subject of former adjudication does not apply to a direct attack upon a judgment, and a bill to review a judg ment is such an attack. It is in its essential features very like an appeal. Insurance Co. v. Gibson, 104 Ind. 336, 3 N. E. Rep. 892. "A matter," declares the ancient maxim, the validity of which is at issue in legal proceedings, cannot be set up as a bar

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thereto." The judgment upon a bill of review, in a case where the plaintiff succeeds, does not finally adjudicate the controversy. All that it does is to set aside the judgment assailed, and open the original case for trial. Leech v. Perry, 77 Ind. 422. The question, therefore, is, does the complaint for review make a prima facie case enti tling the plaintiff to have the cause again tried? The effect of a judgment granting a review is not very different from a judg ment on appeal awarding a new trial.

It

Gil

The complaint shows the delivery of the deed to third persons for the benefit of the grantees in January, 1842, and on the day of its delivery it became effective as against the parties to whom it was delivered. The registry of a deed adds nothing to its effect, as between the immediate parties. serves only to impart notice. Wines v. Woods, 109 Ind. 291, 10 N. E. Rep. 399; Bever v. North, 107 Ind. 544, 8 N. E. Rep. 576. If the case at our bar were one between the persons who executed the mortgages upon which the decree of foreclosure was founded and the plaintiff, there would be little difficulty, for, as between those parties, the deed is valid and effective; but the intervening rights of the mortgagees are such as to add an influential element to the case. It is not alleged that the mortgages were not founded on a valuable consideration, nor is it charged that they were not in good faith accepted upon the belief that the mortgagors owned the land of which they were in possession, and therefore the presumption must be in favor of the mortgagees upon this point. Mortgagees who acquire an interest in the land in good faith and for a valuable consideration occupy substantially the same position with reference to an unrecorded deed as a bona fide purchaser of the land. christ v. Gough, 63 Ind. 576; Brannon v. May, 42 Ind. 92; Jackson v. Reid, 30 Kan. 10, 1 Pac. Rep. 308; Mott v. Clark, 9 Pa. St. 399: Trull v. Bigelow, 16 Mass. 406. If the complaint can be regarded as stating a cause of action against the mortgagees, it must be for the reason that it avers that the mortgagors went into possession by virtue of the unrecorded deed, and held under the title which it vested in the grantees. The mortgagors entered into possession in 1842, and had continuously held possession for more than 40 years at the time the mortgages were executed. If their possession can be deemed adverse, it had ripened into a fee-simple long before the mortgages were executed, for a title by limitation is a title in fee. Sims v. City of Frankfort, 79 Ind. 446-449; Wilson v. Campbell, 119 Ind. 286, 21 N. E. Rep. 893. The question, therefore, narrows to the effect of this long-continued possession upon the rights of persons who occupy the position of bona fide purchasers as against the real owner under a deed executed 40 years before the bona fide purchasers acquired their rights, and not recorded until after the acquisition of those rights. The complaint avers that the mortgagors caused it to be reported that they were the owners under an unre. corded deed, and this was an assertion of ownership hostile to the title of the plaintiff, as was the conveyance of the west half of the lot. It may be true that the mort