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Green, Treasurer, &c., and Others v. Beeson and Others.

will be of public utility, the antecedent requirements of the first section of the act being strictly jurisdictional and necessary to put the tribunal in motion; and the statute does not, in terms, even require the board to ascertain whether these jurisdictional facts are true, though they must undoubtedly be stated in the petition, and probably it was the duty of the boards to have ascertained their truth before proceeding further; and it may be that their decision on that subject would be conclusive when questioned collaterally. The Evansville, fc. R. R. Co. v. Evansville, 15 Ind. 395. But that the length of the road proposed to be constructed shall be five miles, is not a matter to be decided before authority shall be given to form the corporation. A petition by the owners of three-fifths of the real estate lying within three-fourths of a mile on each side of the proposed turnpike, stating its location and length and their desire to construct it, is all that is required to evoke the action of the tribunal. Whether or not so much of the proposed route is already occupied by a turnpike completed that five miles does not remain to be constructed, is not then an inquiry. But after the corporation is created, a restraint is imposed upon its action by the eighth section of the act. It cannot make less than five miles of road, and it must commence its work within two years and finish it within six years. If such a route is designated in its organization that there are only four miles to make, then it has no power to do anything; for it would be idle to say that it might collect money which it could not lawfully expend. And it is equally idle to say that the purchase or other acquisition of a road already made answers the requirement of the statute.

So we are of opinion that the court below was correct in not carrying back and sustaining to the complaint the demurrer to the second and third paragraphs of the answer. What has already been said determines also that those paragraphs of the answer were bad, and that the demurrer to them was correctly sustained.

We are unable to perceive why the signing of the peti

Moor v. Seaton.

tion to the commissioners should constitute an estoppel in this case. Indeed, the argument for the appellants concedes as much. If the corporation cannot lawfully expend money under its peculiar organization, what equity can there be in allowing it to collect money?

The finding against the defendants was well sustained by the evidence.

But we cannot sustain the finding against the plaintiffs John Ingels and Christian Pike. The case made by them was the same as that made by the other plaintiffs, except that they were petitioners for the organization of the turnpike company. It does not appear that they became members of it. Their motion for a new trial should have been granted.

Judgment against the defendants below affirmed, with costs; that against the plaintiffs John Ingels and Christian Pike reversed, with costs, and cause remanded for new trial as to them.

B. F. Claypool and J. S. Reid, for appellants.
J. B. & J. F. Julian, for appellees.

31 f167

11 28

Moor v. SEATON.

New TRIAL.-As of Right. The form of the issues in an action to quiet title

to real property cannot abridge the right of the losing party to bave a new

trial on the payment of costs as provided by section 601 of the code. SAME.-In a suit to quiet title to real property, there was a finding for the

defendant upon a cross complaint. Held, that the plaintiff was entitled to a new trial on the payment of costs. REPEAL OF LAWS.Inchoate Rights.--Inchoate rights generally, derived from

a statute, are lost by its repeal, unless saved by express words in the repeal

ing statute. SAME.— Redemption.-School Lands. -A purchaser of school lands having made

default in the payment of interest on purchase money, the lands were reyear.

Moor v. Seaton.

sold. By the law in force at the time of his purchase, a defaulting purchaser had a right to redeem within one year after sale; by that in force at the time of the sale, and at the time of the default, a delinquent purchaser

could redeem at any time before sale, but not after. Held, that the right to redeem was governed by the latter law.

APPEAL from the Pulaski Circuit Court.

GREGORY, J.-Suit by Seaton against Moor, to quiet title to real property.

The defendant answered, first, by the general denial; second, by way of cross complaint, that he was the owner in fee of the land, and that the plaintiff claimed some interest therein adverse to his; but that the claim was groundless; prayer, to quiet the defendant's title. Reply, the general denial.

A trial resulted in a finding for the defendant. The plaintiff obtained a new trial by the payment of the costs.

This is the first alleged error complained of. It is claimed, that as the finding was on the cross complaint, the plaintiff was not entitled to a new trial as a matter of right.

The statute secures to the losing party a new trial on the payment of costs. 2 G. & H. pp. 283, 284, secs. 601, 612. The form of the issues cannot abridge this right.

The land in controversy is school land, being a part of section sixteen. The appellant purchased the land in November, 1854. He paid a portion of the purchase money, and was to pay interest on the residue. The interest was paid until 1860, when default was made and continued to be made until the land was sold in March, 1864, to the appellce.

By the law in force at the time of the purchase the defaulting purchaser had a right to redeem at any time within one year after the sale. 1R. S. 1852, pp. 451, 452, secs. 100, 105. By the law in force at the time of the sale, and at the time of the default, the delinquent purchaser could redeem at any time before sale, but not after. Moor offered to redeem after the sale and within the

Sieveking and Another v. Litzler.

The question is, which law must govern? In Patterson v. Cox, 25 Ind. 261, it was held, that the right of a mortgagor, or his assigus, to redeem land sold at a sinking fund sale is governed by the law in force at the time of the sale.

This principle follows the plain and obvious one, that inchoate rights generally, derived under a statute, are lost by its repeal, unless saved by express words in the repealing statute. Butler v. Palmer, 1 Hill, 324.

Moor was in default; he had no standing in court except such as was given him by the statute. The case at bar cannot be distinguished from that of Patterson v. Cox, supra.

There are objections made to the form of the proceedings connected with, and forming a part of, the sale. Upon examination it is found that these proceedings were according to the statute in force at the time of the sale.

The judgment is affirmed, with costs.
D. P. Baldwin, for appellant.
J. B. Belford, for appellee.

SIEVEKING and Another v. LITZLER.

SALE.- Rescission.-Suit by the buyer to rescind an executed contract for the

sale of one-half of a portable mill. Held, that an averment that the seller never intended that the buyer should

derive any benefit from the mill, or exercise any control over it, could add

no force to the complaint. Held, also, that the fact that after the sale was completed the buyer was not

permitted to collect money or examine the books, could not entitle him to

rescind the contract. Same.—Misrepresentation.— Value.—A misrepresentation by the seller as to

the value of the article offered for sale is not available to rescind the contract; but where a fact is stated falsely which goes to make up the value (as the number of feet of lumber a portable saw-mill can saw in a day), and which is peculiarly within the knowledge of the seller, upon the seller's

Sieveking and Another v. Litzler.

statement of which the buyer can rely without negligence, the false state

ment may constitute a ground for rescission. SAME.-If the buyer relies upon a statement of the seller that the former will

make a good and profitable trade by the purchase, it is the buyer's own

folly. SAME.-Promise. The failure of the seller to keep a mere promise, to be per

formed after the sale is complete, is not a ground for rescission. SAME.— Fraud.Diligence. The party claiming to rescind a contract of sale

on account of fraud must act at once upon discovery of the fraud; and he cannot postpone discovery by neglect to use ordinary diligence. This rule must be strictly enforced where the law affords a complete remedy in dam

ages. SAME.— InjuryTo authorize a rescission of a contract of sale on the ground

of fraud, there must be an injury shown as the result or that fraud.

APPEAL from the Vanderburg Common Pleas.

Ray, J.-This was an action to rescind a contract for the purchase by the appellee of one-half interest in a portable saw-mill.

A demurrer was filed to the amended complaint, which was overruled; and this is presented as crror in this court. As the appellee denies the accuracy of the abstract filed by the appellant, we have used the one furnished by himself.

The complaint charges, that the appellant, Sieveking, wilily contriving and intending to cheat and defraud the appellee out of his tract of land, hired one John Wall, a sawyer, at the price of one hundred dollars, to assist him in the perpetration of the fraud; that, in pursuance of his fraudulent design, on the 14th of March, 1867, he and the said Wall, the sawyer, by misrepresentation, falsehood, and fraud, succeeded in putting upon the appellee the one-half of a portable saw-mill and two log-wagons, at a price of $2,225; that Sieveking received in payment from the appellee, two promissory notes, one for $725, secured by mortgage on the one-half of the saw-mill and two log-wagons, and the other for $1,500, secured by mortgage on the appellee's tract of land. It is averred that the appellee was ignorant of the value, capacities, and uses of saw-mills and machinery; that he was ignorant of business and the manner of transacting the same; that he was weak of intellect and

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