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title. The plaintiff had judgment below, and the defendants appeal, and assign for error that the complaint does not state facts sufficient to constitute a cause of action. Under the revenue laws of this state,1 taxes become a lien upon real estate upon the 1st day of April, although they are not payable until the 1st day of the following January; so it is manifest, at the time the deed in this case was executed, there was a valid and subsisting lien upon the property. Taxes upon real estate constitute a personal liability against the person owning it at the time they accrue, but a subsequent purchaser is not personally liable for taxes which stood against the property at the time of his purchase, although they continue to be a lien upon the property. Blodgett v. Bank, 69 Ind. 153. It does not appear, from the complaint under consideration, that appellants, or either of them, owned the property in question on the 1st day of April, 1890, the date upon which the taxes accrued. By the special covenant in the deed the liability of the grantors is limited to incumbrances which resulted from acts of theirs, or things suffered by them to be done, and the question for decision is, do the taxes for the year 1890 constitute an incumbrance within the scope of that cov enant? It may be said, at the outset, that the taxes accrued through no act of the grantors,-that they did nothing to charge the premises with the lien; so, if any liability exists, it must be found under the other clause of the covenant. incumbrance upon property, suffered by the grantor, means one within his power and duty to have avoided. "Suffer," in that connection, implies responsible control, and it cannot be held to apply to a thing not caused by the act of the party, nor within his power to prevent. An instance of a lien within the scope of the covenant would be a judgment against the covenantors. While it might not have been within their power to have prevented the judgment in one sense, within the sense of law it could have been avoided by the payment of the debt. Such a lien could not exist except by the default of the parties in failing to discharge their personal obligation; consequently, could only be by their sufferance. But where the grantor is under no personal obligation to discharge a lien, and it was not created by his act, he cannot be held upon a covenant like that under consideration. incumbrance upon the property at the time the grantor acquired the title to it is not within his covenant against "incumbrances done or suffered" by him. Parker v. Parker, 93 Ala. 80;2 Brown v. Young, 69 Iowa, 625, 29 N. W. Rep. 941; Cole v. Lee, 30 Me. 392; Comstock v. Smith, 13 Pick. 116. The case of Hobson v. Middleton, 6 Barn. & C. 295, was an action for the breach of a limited covenant against incumbrances resulting from acts done or suffered and permitted by the defendant. It was charged in the declaration that the defendant joined in, and consented to, the execution of a deed which created a charge

'Rev. St. 1881, § 6446 et seq. 9 South. Rep. 426.

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upon the premises. The answer alleged that the defendant could not have prevented the execution of the instrument, and the court held he was not responsible for the deed of the other party, although he did consent to its execution. In deciding the case, BAYLEY, J., said: "Now the words 'permitting and suffering' do not bear the same meaning as knowing of and bring privy to.' The meaning of them is that the defendant should not concur in any act over which he had a control. As far as the execution of the deed by himself, he admits the breach, but as to the residue, says he could not prevent it, and if 'permitting and suffering' applies only to that which he could prevent, it is clear that his consent in this case is not a breach of the covenant." The same meaning was given the terms "suffer" and "permit" in the following cases: Townson v. Green, 2 Car. & P. 110; Staunard v. Forbes, 6 Adol. & E. 572. Applying these principles to the case in judgment, it must be held that the complaint is insufficient. The incumbrance was not created by the act of the appellants, nor by any power for which they were in any respect responsible. They could not have removed it at any time before the deed was executed, and it does not appear that they were under any personal obligation to have done So afterwards.

The judgment is reversed.

HOLMAN et al. v. ROBBINS.

(Appellate Court of Indiana. Sept. 16, 1892.) APPEAL FROM COUNTY BOARD - FILING PAPERSEMPLOYMENT OF ATTORNEYS.

1. Rev. St. 5774, provides that, within 20 days after filing the appeal bond, on an appeal from the board of county commissioners, the auditor shall make a complete transcript of the proceedings before such board, and deliver the same, with all the papers filed in the proceeding, and the appeal bond, to the clerk of the circuit court to which the appeal is taken. Held that, where the auditor, on such an appeal, delayed filing the transcript and papers until the expiration of the statutory period, the appellant could, on motion, supply them to the circuit court after the appeal was taken.

2. Acts 1885, p. 141, provides that the county treasury shall be reimbursed for money drawn therefrom to repair drains constructed under the laws of the state, by assessment made by the county surveyor, and allows appeals from such assessments. Held that, where a county surveyor refused to take the necessary steps for reimbursing the treasury in such a case, or to employ attorneys for that purpose, the board of county commissioners had authority to employ attorneys, and allow them compensation for their services.

Appeal from circuit court, Fulton county; A. C. CAPRON, Judge.

Claim presented to the board of commissioners by George W. Holman and Julius Rowley for services rendered. Claim was allowed. Appeal to the circuit court by Alfred H. Robbins. Modified judgment for claimants. Claimants appeal. Judgment reversed.

Holman & Stephenson, Riley & Baker, and J. H. Bibbler, for appellants. P. F. Buchanan, O. F. Montgomery, and Siduey Kieth, for appellee.

BLACK, J. The appellants, George W. Holman and Julius Rowley, presented to the board of commissioners of Fulton county a claim for services, amounting, in the aggregate, to $315. The board of commissioners, on the 19th of November, 1890, allowed the claim in full. The appellee, Alfred H. Robbins, appealed from the decision of the board, and on the 7th of January, 1891, filed in the office of the clerk of the court below a transcript. The parties appeared in the court below on the 3d of February, 1891, and the appellants then moved to dismiss the appeal, assigning, as grounds for the motion, that the transcript did not disclose that Robbins was an authorized appellant; that it contained no record of any filing of an appeal bond, or affidavit of the interest of Robbius; that it was not accompanied by any of the papers in the cause, and that nothing appeared as before the court except a certified copy of the bill of the appellants before the board of county com. missioners, and the order of the board allowing the same. Pending this motion, on the 5th of February, 1891, the appellee filed his petition or motion for leave to file with the papers of the case all the papers and documents filed in the proceedings, and the appeal bond. The court granted leave to supply the papers, as so asked by the appellee, and it overruled the motion to dismiss the appeal. The record is in a confused and disjointed state, but it shows that the appellee, under such leave of court, filed the account of the appellants which was allowed by the board of commissioners, and the appellee's affidavit for an appeal and his appeal bond, approved by the county auditor, said affidavit and said appeal bond being indorsed by the auditor as filed December 18, 1590. There is also copied into the transcript of the record before us an additional transcript of the proceedings of the board of commissioners in the allowance of the claim, certified by said auditor on the 5th of February, 1891. The court didnot err in these rulings. Section 5772, Rev. St. 1881, provides: "From any decision of such commissioners there shall be allowed an appeal to the circuit court by any person aggrieved; but if such person shall not be a party to the proceeding, such appeal shall not be allowed, unless he shall file in the office of the county auditor his affidavit setting forth that he has an interest in the matter decided, and that he is aggrieved by such decision, alleging explicit ly the nature of his interest." Section 5773, Rev. St. 1881, provides that the appeal shall be taken within 30 days after the time the decision is made, by the appellant's filing an appeal bond; and section 5774 provides that, within 20 days after the filing of such appeal bond, the auditor shall make out a complete transcript of the proceed ings of said board relating to the proceedings appealed from, and shall deliver the same, and all the papers and documents filed in such proceeding, and the appeal bond, to the clerk of the court to which the appeal is taken. The delay of the auditor in filing the transcript and papers until after the expiration of the period within which the statute directs the filing is not

good ground for the dismissal of the ap peal. His delay will not be permitted to prejudice the appellant, who has complied with the statutory requirements. Day v. Herod, 33 Ind. 197. It has been held that, if material papers in the cause are not filed in the circuit court, they may be obtained on motion by either party. Board, etc., v. Loeb, 68 Ind. 29. The circuit court being a court of general superior jurisdiction, having authority to hear and determine such a cause on appeal, and the parties being before it, the presumption exists, upon appeal to this court, that the proceedings of the circuit court were regular and valid, unless something to the contrary is shown by the record. Having proceeded in the cause, it would be presumed that the things necessary to be done to confer jurisdiction of the appeal from the board of commissioners were done, the record being silent, or not show. ing the contrary. The appellants also moved to strike out the affidavit for an appeal, the appeal bond, and the record of their filing. As the appellants, in their brief, admit that the action of the court in overruling this motion does not involve any question other than those involved in the preceding rulings mentioned, it need not be noticed further. Afterwards the claimants filed, in the court below, an. amended complaint, embracing a number of separate items of account, which the parties and the court treated as separate paragraphs of the complaint, and the court sustained a demurrer to all the items of account except the first two, amounting to the sum of $35. Upon trial by the court there was a finding for the claim. ants in the sum last mentioned, on the first two items of their claim, and against them upon the other items, and the court thereupon adjudged that the appellants were entitled to the sum of $35, and rendered judgment in their favor for costs against the appellee. This ruling upon 'demurrer is assigned as error.

It was alleged in the complaint, in substance, that prior to the year 1889, and during that year, one James K. Stinson, then surveyor of Fulton county, expended on repairs of what was known as the “Peterson and Reed Ditch," in that county, theretofore established under and in pursuance of an order of the board of commissioners of that county, about $4,000, which sum had been paid out of the coun ty treasury upon the order of said surveyor; that his term of office expired in 1889, and he was succeeded in office by one Peter J. Stingley, who was related to three of the landowners assessed for the construction of said ditch, being a son of one, a brother of another, and a cousin of a third; that no assessment for said repairs was made upon the landowners along the ditch during said Stinson's term of office; that it was claimed by said Stingley, surveyor, and by those whose land was affected by the construction thereof, that the expenditures so made were extravagant, unauthorized, and in excess of the original cost of construction, so that no steps were being taken by the surveyor or his deputy for the reimbursement of the county treasury; that there

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had also been paid out of the county | treasury about $2,000 for repairs of what was known as the "Walters and Cannon Ditch," in said county, by said Stinson, surveyor; that it was claimed, also, by those affected by the construction of this ditch, that the amount so expended for said repairs was unauthorized and unnecessary; that said Stingley, surveyor, because of the objection to the repairs by those affected thereby, and because he claimed that said Stinson could be held liable for making repairs unauthorized, declined and refused to take any steps for the reimbursement of said treasury, unless directed by the board of county commissioners and relieved from responsibility thereon; that said board, on investigation, discovered that large sums of money had been paid out from time to time as costs in the construction of ditches petitioned for before said board, it being then claimed that said expenses should be borne by the county, a question about which said board was in doubt; that in view of the condition of the county treasury as aforesaid, and being in doubt as to what should be done to reimburse it, said board, on the 6th of August, 1889, entered of record, an order of employment of the appellants as follows: "It is hereby ordered by the board that George W. Hsiman and Julius Rowley be, and are here. by, employed as attorneys to take such legal measures as shall be necessary to reimburse the treasury of this county for money paid out of the treasury on account of the location and repairing of ditches in Fulton county, Indiana." was then alleged that, in pursuance of this contract, and at the request and under the direction of said board, the appellants, on, etc., made a careful examination of the various statutes relating to the expenses of the establishment of ditches by the board of county commissioners, and gave said board a written opinion thereon, which was accepted and acted upon by said board, for which the appellant charged $25. It was further alleged that, ou, etc., the appellants spent with said board the greater part of a day in consul. tation with the board, and in examining the records relating to the proceedings which resulted in the depletion of the county treasury for the repair of ditches, for which they charged $10. The court below held the complaint sufficient as to these two items, amounting to $35, and it was for them that the finding and judginent were rendered in favor of the appellants. It was further alleged that, before the employment of the appellants, one Isaiah Walker was appointed deputy surveyor; that, in the opinion of the appellants, it was necessary to make assessments against the landowners affected by the Peterson and Reed ditch, and appellants directed that assessments for repairs be made by the deputy surveyor, which he accordingly made; that 17 persons against whom the assessments were made appealed therefrom, making their appeal bond payable to said Stingley, as county surveyor, he declining to defend, and having an interest therein adverse to the county; that the appel v.31N.E.no.20-55

lants, in pursuance of their said employment, and in discharge of their duties therein, appeared in each of said causes. Five of the items of the claim of the appellants, amounting to $151.20, were for services described, in and about these causes on appeal from said assessments. Another item of $18 was for service described, rendered by the appellants, at the request of said board, in a proceeding in which the county auditor was compelled by mandamus to place the assessments from which no appeal was taken upon the proper duplicate for collection. It was further alleged that the appellants were directed by said board to require assessments to be made for the repairs to the Walter and Cannon ditch, which was accordingly done; that 17 of those against whom these assessments were made appealed therefrom to the court below, and that said surveyor, on the ground hereinbefore stated, declined to resist said appeals; that the appellants, at the request of said board, and in pursuance of their said employment, appeared in all of said causes, and two of the items of claim are for services described, in these causes, amounting to $110. It was alleged that the charges stated in the complaint were reasonable, just, and of the value of the amount charged, etc.

The contention in the argument here relates to the question whether or not the board of commissioners of the county had authority to contract with the appellants as shown by the complaint, and to subject the courty to liability for remuneration for the services stated. The statute

section 10 of the act of April 6, 1885, (Acts 1885, p. 141)—provides for the repair of drains constructed under the laws of this state, and prescribes the mode in which the county treasury may be reibmursed for money paid out of it for such repairs. It provides for assessments to be made by the county surveyor, and for appeals therefrom, and for the placing of the assessments upon the tax duplicate by the County auditor. The county is interested in these acts and proceedings, whereby alone its treasury may be reimbursed. No express provision is made for the employment of attorneys, or for their compensation. It sufficiently appears in the complaint that the surveyor did not employ attorneys to protect the interest of the county. The employment of the appellants by the board of commissioners was not unauthorized. Stingley v. Nichols, (Ind. Sup.) 30 N. E. Rep. 34. Without regard to the question whether or not such a demurrer, directed to particular items in an account, so set forth in a single paragraph of complaint, should be eutertained by the court, we are of the opinion that the court erred in sustaining the demurrer. The judgment is reversed.

GOUVERNEUR et al. v. NATIONAL ICE Co. (Court of Appeals of New York, Second Division. Oct. 1, 1892.)

BOUNDARIES-LAND ABUTTING ON POND-CONSTRUCTION OF DEED.

1. A deed of land bordering on a small nonnavigable lake or pond is presumed to convey title

to the center of the lake or pond, unless the contrary appears. Wheeler v. Spinola, 54 N. Y. 377, distinguished. 11 N. Y. Supp. 87, reversed.

2. The fact that a deed described the property conveyed as commencing at a known monument on the shore of a pond, and running thence "along said pond," does not show an intention to convey only to the shore. 11 N. Y. Supp. 87, reversed.

Appeal from supreme court, general term, second department.

Action by Mary M. Gouverneur and others against the National Ice Company. From an order of the general term revers. ing a judgment of the special term in favor of defendant, and granting a new trial, defendant appeals. Reversed.

The other facts fully appear in the following statement by BRADLEY, J.:

The

The action is ejectment, and was brought in January, 1883, to recover the possession of certain premises consisting of water and land under water of a natural pond or lake known as "Hinckley Pond" or “Croton Lake," situated in the town of Patterson, county of Putnam, and is about 2,500 feet in length, and 800 feet in width, in the broadest place, and covers 45 acres. Two streams, constituting its surface inlets, enter in at the southerly end. outlet at the north end is known as "Muddy Brook." The pond is within a tract of land granted June 17, 1697, to Adolph Phillipse by William III., king of England, by letters patent, which embraced the present Putnam county. The plaintiffs, by descent and as successors in interest of the patentee, who died intestate, seised of the premises, in 1749, have title to them, unless it has in the mean time been alienated or otherwise defeated. The plaintiffs' ancestors, by five deeds, of dates January 13, 1796, February 6, 1813, March 9, 1813, May 1, 1828, and September 20, 1845, conveyed all the lands surrounding and adjacent to the pond to grantees therein mentioned. The several deeds, respectively, described parcels of lands, and mentioned the quantities embraced within the boundaries; and the following are the only portions of the descriptions given by the said conveyances, in the order of their dates, essential to the questions here for consideration. In the first: "Thence north, sixteen degrees west, forty-three chains and seventy-nine links, to Muddy brook, and down the same as it rups until it bears due west," etc. This first-mentioned course intersected the pond some distance southerly from what now appears to be the outlet. In the second: "Thence south, eighty-one degrees east, five chains, to Hinckley pond, near a large rock; thence northerly, along said pond, to the outlet thereof; that is, to Muddy brook. In the third: "Thence running north, nineteen degrees west, fourteen chains forty links, * to a birch sapling marked, on the east side of Hinckley pond; thence south, thirteen degrees west, three chains twenty-six links, along said pond; thence south, seven degrees fifteen minutes west, seven chains sixty links, along do.; thence south, thirty minutes west, two chains, along do.; thence south, five degrees east, two chains, along said pond; thence south, fourteen degrees

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corner.

deed:

fifteen minutes east, two chains ninetyfive links, along do., to a bunch of basswood sprouts marked, at Abiol Crosby's Another description in the same “Thence nine degrees thirty min utes east, ten chains eighty-eight links, along Abiol Crosby, to a bunch of basswood sprouts marked; then due west one chain, along Hinckley pond; thence south, sixty-five degrees west, four chains, along do.; thence south, thirty-seven degrees west, five chains eighty-five links, along do.; thence north, seventy-one degrees thirty minutes west, six chains eightyeight links, along do., to the brook leading in said pond." In the fourth: "Beginning near the south side of a large rock, on the west side of Hinckley pond; thence running south, sixteen degrees west, five chains sixteen links, along said pond." In the fifth: Beginning at a stake in a swamp south of Hinckley pond; thence several courses and distances; then "north, sixteen degrees cast, six chains forty-eight links, to a maple marked, by said pond; then north, sixty degrees west, four chains ninety links, along said pond, to the beginning. About twelve hundred feet in length of the northerly portion of the premises in question lies along the two courses of the lines so given in the first two deeds, and the balance, about thirteen hundred feet in length, of the southerly portion of them, is between the lines so described as along it, in the last three deeds. Through those five deeds, and sundry mesne conveyances, the defendant took title to uplands adjacent to and surrounding the whole of the pond, except a portion at the northeasterly corner, formerly owned by one William Merritt, and such rights as the New York & Harlem Railroad Company acquired to a strip along its west shore. In 1850 and 1851 William Merritt, who then had title to a | portion of the upland, conveyed to the predecessors of the defendant all his interest in the premises in question. And in 1850 or 1851 the defendant's predecessors filled in a portion of the pond, built an ice house thereon, and provided some other appliances for gathering ice. After the construction of the New York & Harlem Railroad, and in the winter of 1850 and 1851, the defendant's predecessors commenced gathering ice there, and shipping it to market on the railroad. This was done every year thereafter, unless the winter of 1853-54 may be excepted. And the defendant acquired its interest there in 1867, then made preparations for the business of gathering ice from the pond, and storing it for shipment and market, and erected buildings and provided means and facilities for such business, which it has since then carried on quite extensively there. The trial court found that the plaintiffs had no title to and were not entitled to the possession of the premises, and refused to find that by the lines, as defined in the deeds of the parcels of land around and adjacent to the lake, excluded the premises in question from the conveyances, and directed judgment for the defendant.

Calvin Frost, for appellant. Eugene Frayer, for respondents.