Iwould be to allow him to perpetrate a most palpable and glaring fraud. Equity and good conscience will not allow such gross injustice as would follow if the appellant were permitted to assert his title under the circumstances alleged. Counsel on neither side have furnished us with any authority to sustain their respective contentions, and yet there is no want of authority from this as well as other courts touching the questions involved. In the case of Stone v. Lewman, 28 Ind. 97, the learned judge who delivered the opinion says: "The fourth paragraph of the answer, a demurrer to which was overruled, alleged that the judgment sued on had been obtained in the defendant's absence, and without his personal knowledge, by the plaintiff's fraudulent suppression of the facts upon an account which had been fully satisfied; that the defendant returned to this state within a year from the rendition of the judgment, and, being about to commence proceedings to be relieved against it, of which the plaintiff had notice, the latter promised to enter satisfaction of the judgment in consideration that the defendant would not prosecute proceedings for relief, and would not press the collection of a demand held by him against the plaintiff, which the defendant promised and faithfully performed, relying upon the plaintiff to enter satisfaction of the judg ment, which he supposed had been done until served with process in this suit, too late, under the statute, to institute proceedings for relief against the judgment. We perceive no error in overruling the de murrer to this defense. If its averments be true, the collection of the judgment would now be a gross fraud upon the defendant, which cannot find countenance in the law. All the conditions of an estoppel appear. In the case of Johnson's Adm'rs v. Unversaw, 30 Ind. 435, the facts alleged are very similar to the facts alleged in Stone v. Lewman, supra, but the question arose on a demurrer to the complaint. GREGORY, J., delivered the opinion of the court, and said: "The appellee was prevented from making his defense, and also from making his motion, within the time allowed by law to set aside the judgment for mistake, inadvertence, surprise, or excusable neglect' by the fraudulent device of the intestate, and thereby he was, and the appellants, as his administrators, are estopped from enforcing it." Nealis v. Dicks, 72 Ind. 374, and Sanders v. State, 85 Ind. 318, approve the cases supra. ton v. Shreeve, 4 Ind. 66; Swope v. Ardery, 5 Ind. 213; Dawson v. Jackson, 62 Ind. 174. Hogg v. Link, 90 Ind. 346, is to the same effect. See Freem. Judgm. § 492; Blakesley v. Johnson, 13 Wis. 592; Pom. Ea. Jur. §§ 918, 919. As the consideration paid by the appellant was merely nominal, the maxim, "He who seeks equity must do equity," has no application. The statute of frauds has no application to the cause of action alleged in the second paragraph of the cross-complaint. The appellee is not thereby seeking to enforce a contract for the sale of real estate. The theory of the pleading is that the appellee is the owner of the real estate, and holds the legal title thereto, and that the appellant is

Ben

asserting a claim thereto, and the demand is that the appellee's title to the land be quieted.

It is urged, also, that, the appellee having been guilty of negligence in the assertion of his rights, he is for that reason not entitled to the relief demanded in his cross-complaint; but so long as the appellant made no claim to the property, and permitted the appellee to occupy it undisturbed, he had no right of action. It was not until the appellant asserted title and instituted proceedings to recover the land that it became necessary for the appellee to ask that his title be quieted. In Johnson's Adm'rs v. Unversaw, supra, the learned judge says: "The appellants have cited no authority, but they contend that the appellee has lost his remedy (if he ever had one) by gross neglect in delaying ten years to assert his right. By the allegations of the complaint the intestate never attempted to enforce the judgment. On the contrary, he repeatedly asserted that it was as to appellee released and satisfied. The administrators have no right to complain of a delay caused by their intestate. It may be said of the appellant that he has no cause to complain of delay caused by his own inaction.

The fifth paragraph of answer, which is in the nature of a plea of the statute of limitations, was clearly bad. The period of limitation alleged is one year, and it is contended that the appellee was bound to redeem within one year from the day of sale, and at most within one year from the date of the sheriff's deed to the appellant. This not being an action to redeem, but to quiet title, the redemption law can have no possible application. See Lynch v. Reese, 97 Ind. 360.

The

The fourth paragraph of answer was a plea of the statute of limitations, alleging that the cause of action did not accrue within a period of six years before the commencement of the cross-action. gravamen of the action is to quiet title to real estate, and not to enforce a parol contract, or for relief against fraud. Therefore the six-years period of limitation does not apply. Fraud may be, and in fact is, an incident to the cause of action alleged in the complaint, but that is all. If the crossaction was one to set aside the sheriff's deed to the appellant on the ground of fraud, then a different question would be presented. The period of limitation applicable to a cause of action like the one alleged in the second paragraph of the crosscomplaint is 15 years. Eve v. Louis, 91 Ind. 457; Vanduyn v. Hepner, 45 Ind. 589-598; Caress v. Foster, 62 Ind. 145.

case.

We come, lastly, to the evidence in the It is a well-settled rule of this court that, where there is evidence to support the finding of the court or jury trying the cause, this court will not disturb such finding or verdict. The evidence does not make as strong a case for the appellee as is made by the averments in his cross-complaint. It fails to show that he had any understanding or agreement with the appellant in person; but, notwithstanding, we think the evidence is sufficient to support the finding of the court. A. C. Capron testified as a witness for the appellee, and

showed that he was the attorney for the appellant, and ordered the execution upon which the appellee's real estate and other parcels of real estate were sold. That the appellant came to Plymouth, and they made a schedule of all the real estate owned by Schlarb at and after the judgment was rendered, none of which was owned by him when the execution issued. When the schedule was made out, they put on it the figures proper to bid on each tract, which footed up the full amount due on the execution. That the witness informed the appellant that the appellee's property was incumbered by mortgage and other liens when he bought it for more than its value, and that the appellee's money had paid off those liens; and that Schlarb had practically nothing in the property; and that they would be compelled to make their money out of other property, to which the appellant agreed, and one dollar was fixed as the amount to be bid on the appellee's said property. A short time before the sale the appellee went to the witness' office, and he informed the appellee that the judgment of the appellant was a lien on all the real estate owned by Schlarb at its rendition, but that, as far as his property was concerned, they were only going to sell it to get at the other property, and that he need give himself no uneasiness about it. That they were never going to take out a deed or certificate of sale. The appellant told witness he wanted nothing out of it, and the witness so informed the appellee. That the appellee seemed to be uneasy, and came to see witness the second time, and he again assured him that he need not worry about it. That they expected to get the bulk of the money out of the Knowlton land. Witness further told the appellee that he need not give the matter any further attention. The bulk of the money was made out of the Knowlton land. Before the appellant took his sheriff's deed the witness informed him that it would be a fraud on the appellee to take a deed for his property. The first that the witness knew that the appellant contemplated taking a sheriff's deed was at a time when the appellant's son came to Plymouth, after the year of redemption had expired. The appellee testified as a witness in his own behalf, and corroborated the witness Capron as to the agreement and understanding between them as to the sale; that the property at the date of the sale was worth about $6,000; that the witness never heard of the appellant's intention to claim the property until after he had taken the sheriff's deed. The evidence shows that the property was bid in for one dollar, and that this was the consideration named in the sheriff's deed. From the evidence the court might conclude that the appellant and his attorney regarded the interest of the judgment debtor in appellee's property at the date of the judgment and thereafter as of nominal value, but that it was desirable to bid it in, that other real estate upon which the execution had been levied might be sold, from the sale of which they expected to realize the amount due on the execution; and that they finally concluded to bid for the appellee's said real estate the

nominal sum of one dollar; and that they regarded the purchase of no other importance than to enable them to proceed with the sale of the other real estate; and that after this arrangement the said attorney informed the appellee, and assured him, that he could rest easy and need give the matter no further attention; and that the appellee acted upon the understanding which he had with the attorney. That he relied upon what was stated by the attorney there could be no question, else he would not have permitted his property, worth $6,000, to be sold by the sheriff for the nominal sum of $1, and the year of redemption to pass by, without some effort to protect his rights and interest in the said property.

We are not prepared to say that it was not in the line of the attorney's employment, after he and his client had reached the conclusion above stated, for him to say to the appellee just what he did say. His client's interests could not be prejudiced thereby, and if the appellee could thus be kept quiet, and prevented from taking steps to enjoin the sale, it would certainly be to the appellant's advantage. In Graffam v. Burgess, 117 U. S. 180, (188,) 6 Sup. Ct. Rep. 686, 690, the court says: It is true that Fairfield's declarations ought not to be used against Graffam except when made by him in the course of his business as Graffam's attorney. It is in this point of view that they have been noticed." The declarations of Fairfield were made under circumstances very much in line with the statements made by Capron to the appellee. But, whether this is so or not, the attorney acting for the appellant did make the promises as he has testified. The appellee relied upon them, and thereby the appellant was enabled to obtain a sheriff's deed to property worth $6,000 for the nominal sum of $1. Although it appears that the attorney, Mr. Capron, acted in good faith, the conduct of his client afterwards, in taking a deed from the sheriff for the property, and his effort thereafter to recover its possession from the appellee, was a fraud not to be tolerated, and renders the sale absolutely void, and estops the appellant from setting up title in the said property. Authorities, supra. In the case of Graffam v. Burgess, 117 U.S. 192, 6 Sup. Ct. Rep. 692, the court says: "From the cases here cited we may draw the general conclusion that if the inadequacy of price is so gross as to shock the conscience, or if, in addition to gross inadequacy, the purchaser has been guilty of any unfairness, or has taken any undue advantage, or if the owner of the property or party interested in it has been for any other reason misled or surprised, then the sale will be regarded as fraudulent and void, or the party injured will be permitted to redeem the property sold. Great inadequacy requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise the presumption of fraud." On page 194, 117 Ü. S., 6 Sup. Ct. Rep. 694, and in the same opinion, the court says: "Some technical objections, however, have been raised. It is said that it was error in the court to allow the amendment to redeem. We see no error in this.

De Bolt, 78 Ind. 568. But the interest of the wife was incumbered by a mortgage, and she could not assert a right, in any event, to any sum, except such as remained after paying the mortgage debt, and the parcel bought by Hart did not bring enough by a considerable sum to discharge that debt. It is true that parcel A did not bring more than enough to pay the incumbrance on it, but, as Mrs. Elder received one-third of the avails, she certainly cannot complain.

It is probably true that the wife, in the proper case, may compel resort to other property before sale of her interest, or have an order to first offer the husband's interest for sale, but we have no such case here. It does not appear that the husband had any other property than that covered by the mortgages, nor does it appear that the assignee had any money of the debtor, nor any of his property, except that covered by the mortgages, and the mortgagees had therefore a right to the entire sum realized. It does appear that the property sold to Hart was much less in value than the amount of the mortgage debt, so that there is no surplus in which the wife can have an equity. Sparrow v. Kelso, 92 Ind. 514. There is, on the facts before us, no imperative duty resting on the assignee to pay off mortgage liens, and if there is no duty there can be no lia- | bility. Whether there may be cases in which it would be the duty of the assignee, in order to protect the wife, to pay off mortgages, we need not inquire; it is enough to say that this is not such a case. Judgment affirmed.

(122 Ind. 178)

STATE V. SMITH.

(Supreme Court of Indiana. Feb. 19, 1890.) INTOXICATING LIQUORS-INFORMATION.

Under Rev. St. Ind. 1881, § 2093, which forbids the sale of intoxicating liquor to an habitual drunkard "after notice shall have been given him in writing" that such person is a drunkard, an information charging such sale after due notice in writing had been served upon the proprietor of the saloon in which the accused was employed, which notice was left at such saloon, is insufficient, in not charging notice to the accused.

Appeal from circuit court, Huntington county; JOSEPH S. DAILEY, Judge.

Indictment of Frank Smith for selling liquor to an habitual drunkard. The information was quashed, and the state appeals.

Wm. A. Branyan, Pros. Atty., and Louis T. Michener, Atty. Gen., for the State. Milligan & Whitelock, for appellee.

MITCHELL, C. J. Section 2093, Rev. St. 1881, is in the following language: "Whoever, directly or indirectly, sells, barters, or gives away any spirituous, vinous, malt, or other intoxicating liquor, to any person who is in the habit of being intoxicated, after notice shall have been given him in writing by any citizen of the township or ward wherein such person resides, that such person is in the habit of being intoxicated, shall be fined," etc. It was charged in an affidavit and information that Frank Smith, on a date mentioned, sold intoxicating liquor to a person named,

who was in the habit of being intoxicated, after due notice in writing had been served by a citizen of the proper township upon Moores Milligan, the proprietor of the saloon in which Smith was employed, that the person to whom the liquor was sold was in the habit of being intoxicated, which notice, it is a verred, was also left at and in the saloon. The affidavit and information were very properly quashed. The charge should have been that notice in writing had been given the defendant, and it would then have become a question of proof whether or not serving a notice upon the proprietor, and leaving a copy in the saloon, conveyed notice to the employe. The offense consists in selling, bartering, or giving intoxicating liquor to a person in the habit of being intoxicated, after notice shall have been given him (the person selling or giving the liquor) that the person to whom it is sold or given is in the habit of being intoxicated. Notice in writing must have been given the defendant. This conclusion does not, as is contended, require that a separate notice be served upon the proprietor of a saloon, and also upon each and every clerk, employe, or other person authorized to sell. It only requires, in order to make an indictment or information sufficient, that the charge should be laid substantially in the language of the statute, leaving the question of the sufficiency of the proof to the court, or jury trying the cause. averment that the proprietor was notified in writing, and a copy left in the saloon, without any averment that the defendant was notified, is of no consequence. doubtedly, if the evidence showed that an employe had knowledge that due notice had been given the proprietor or left in the saloon, or if he were in any other way notified that a statutory notice had been given not to sell intoxicating liquor to a particular individual, a conviction would be sustained if a sale were afterwards made in disregard of the notice. Such evidence might warrant the inference that notice had been given him. The appeal is not sustained. Judgment affirmed.

An

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(122 Ind. 180)

HOBBS et al. v. COMMISSIONERS OF TIPTON COUNTY et al.

(Supreme Court of Indiana. Feb. 19, 1890.) VACATING JUDGMENT.

A judgment refusing to enjoin the collection of a special assessment will not be vacated more than a year after its rendition, under Rev. St. Ind. 1881, § 396, which provides that the court may at any time within two years relieve a party from a judgment taken against him" through his mistake, inadvertence, surprise, or excusable neglect," where the surprise alleged is the introduction in evidence of the record of the assessment proceedings after the same had been fraudulently altered, and it appears that the complaining party knew of the alteration before the trial, and objected to it when offered in evidence.

Appeal from circuit court, Clinton county; ALLEN E. PAIGE, Judge.

Action by De Witt C. Hobbs and others against the board of commissioners of Tipton county and others. Judgment for defendants. Plaintiffs appeal.

Joshua Jones, J. N. Sims, and W. R. Ogle

COFFEY, J. This was an application in the court below to vacate and set aside a judgment rendered in the Clinton circuit court, the complaint consisting of two paragraphs. The first paragraph of the complaint, omitting the formal parts, charges, substantially, that the appellants on the 29th day of January, 1884, filed their complaint in the Tipton circuit court against the appellees to enjoin them from the collection of an assessment for building and constructing gravel-road No. 5, in Tipton county, Ind.; that the venue in said cause was changed from the Tipton circuit court to the Clinton circuit court, where the same was put at issue by filing a general denial to the complaint; that the same was tried by the court without the intervention of a jury on the 11th day of January, 1887; that the trial of said cause resulted in a finding and judgment for the appellees; that upon the trial of said cause the appellants offered to prove, by the auditor and two members of the board of commissioners of Tipton county, that no notice was given by the said auditor of the filing of the cash assessment made by the viewers appointed by said board to view and assess the benefits to the lands of the appellants; that the court sustained an objection to such offered evidence, and the appellants excepted; that appellants offered and read in evidence the report of the first viewers appointed by said board to view the route of said proposed road, and then rested their cause; that the appellees, to support their cause, offered and read in evidence, over the objection of the appellants, the record, or pretended record, establishing and ordering said gravel-road No. 5, and also introduced the oral testimony of two of the viewers, the engineer and auditor, and rested their cause; that on the trial of said cause the appellees, for the purpose of practicing a fraud upon the court and upon the appellants, and for the purpose of obtaining an undue advantage of the appellants and a lien upon their lands with out due process of law, purposely, fraudulently, designedly, and willfully read in evidence to the court, over the objection of the appellants, a piece of paper or pretended record, showing that after the viewers appointed by said board had made their report, on the 10th day of June, 1882, the auditor of said county had given notice of the filing of the same by publication in the Tipton Weekly Times, published in Tipton county, Ind., and that said auditor had issued a summons to the sheriff of said county commanding him to summon said board to meet at the auditor's office on the 17th day of July, 1882, to act upon said report; that appellants can now prove by the papers printed and published within the period from the 10th day of June to 17th day of July, 1882, that said pretended record is absolutely false, and that no notice of any kind was ever given by said auditor of the filing of said assessment, or of the time said commissioners would meet to act thereon; that appellants made diligent search and effort to discover and procure a copy of said paper to offer in ev

issued a subpoena, and caused the same to be served on John Bakamer, the editor and publisher of said paper at the time said cause was tried; that he was unable to find a copy of said paper covering the period aforesaid; that they went to the residence of Jesse Alexander, father of the editor of said paper, covering said period; that said former editor was in the city of Washington, D. C., at the time of said trial, and had been there residing long be fore that time; that they were wholly unable to learn the whereabouts of the other editor of said paper, and, after diligent inquiry and search among the neighbors, they were unable to find a copy of said paper before the trial of said cause; that the appellants were defeated in their said cause by means of said pretended record, and judgment was thereupon rendered against them; that said judgment is in conflict with the constitutional requirements of article 14, § 1, of the Amendments of the constitution of the United States, being section 39 of the Revised Statutes of Indiana. The second paragraph contains the same charges as the first in relation to the commencement of the suit, the change of venue, the issues, and the trial of the cause and the result of the suit. It then charges that on the trial of said cause the appellants introduced a part of the record establishing gravel-road No. 5 in Tipton county, and that they offered to prove by the auditor of Tipton county and two members of the board of commissioners of said county that said record was not the record of said board, the same never having been read over to them and signed; that the same was signed long after the first trial of this cause in the supreme court, and that the same had been interlined and changed from its first condition, and that when the assessment was made for the location, construction, and building of said road, and the report filed in the auditor's office, no notice of any kind was given of the filing of the same, and that no notice was given of the day set for the hearing of the same, and that no summons was issued calling said board together in special session, and that they never did meet and confirm said report, as shown by said record, and that said record was made by said auditor long after its date, and the names of the board of commissioners appended thereto by said auditor, and that the court sustained an objection to said offered evidence, to which appellants excepted; that, said appellants having rested their cause, the appellees, to sustain the issue on their part, read in evidence, over the objection of the appellants, the record of the board of commissioners of Tipton county establishing said gravel-road, and establishing and confirming said assessment; that on the trial of said cause the appellees, for the fraudulent purpose of deceiving the court, and thereby obtaining a judgment confirming said assessment, fraudulently and designedly read in evidence, over the objection of the appellants, the record of the said board in regard to the report of the said viewers, showing that after the report of the said viewers was filed, on the 10th day of June, 1882,