Lamb, Treasurer, v. Rawles, Executor. The facts in the case are presented by an agreement made by the parties in the circuit court; which, in substance, is as follows: Some time in November, 1866, Hetfield orally agreed to sell his farm of three hundred and twenty acres. of land in Fountain county, at forty dollars per acre, to one John Death. No writings were then made, but it was understood between them that the agreement should be consummated at some future date. On the 3d day January, 1867, Death paid Hetfield five thousand dollars on account of the purchase, and executed to the latter his notes amounting to eight thousand eight hundred and eightynine dollars, for the residue, payable in four equal annual instalments, without interest; the interest having been calculated from November, 1866, and added to the amount as a part of the principal included in the notes. After the oral agreement in November, 1866, and before the 1st of January, 1867, Death came to Hetfield and proposed to let him have a note for twelve hundred and fifty dollars, on one Carpenter, and twelve hundred and fifty dollars in money, to be held by Hetfield, and to be accounted for when the sale of the land should be consummated. trade was consummated on the 3d of January, 1867, when the five thousand dollars just referred to were allowed as a payment on the land, notes executed for the balance as before stated, and at the same time Hetfield executed to Death a title bond, binding him to make a deed for the land, when the notes given for the residue of the purchasemoney should be paid. The The note for twelve hundred and fifty dollars on Carpenter was given in by Hetfield to the assessor, and properly charged to him on the tax duplicate for 1867. Hetfield had invested the twelve hundred and fifty dollars in money, received from Death, in other real estate, before the 1st of January, 1867, and consequently did not have it on hand at that date. Prior to the 1st of January, 1867, Hetfield sold to Death a lot of sheep and some oats and hay, then on the farm, Lamb, Treasurer, v. Rawles, Executor. and permitted the sheep to remain there and be fed with the oats and hay. Hetfield remained in possession of the farm until after January 3d, 1867. The farm was assessed on the tax duplicate for 1867 against Hetfield, though by agreement between him and Death, the latter paid said tax. In addition to the other taxes assessed against Hetfield for 1867, about which there is no controversy, he was charged on the duplicate for that year, without his consent, with twelve thousand dollars, the proceeds of the sale of the farm; on which the taxes levied amounted to four hundred and sixty-three dollars and twenty cents. The duplicate containing said tax was in the hands of Lamb as treasurer, and he was about to proceed to collect the amount by a levy and sale of Hetfield's personal property, and would have done so, but for the restraining order of the court. It is provided by statute, that "every person shall be listed in the township where he resides when the enlistment is made, for all personal estate owned by him, on the 1st day of January of the year in which the enlistment is made," &c. 1 G. & H. 71, sec. 13. And by the 23d section of the same act, "personal estate" is made to include, among other things, "the value of all demands against any person or body corporate, either within or without this State." The question here is, do the facts stated show that Hetfield, on the first day of January, 1867, held a demand against Death for the price of the farm, or any part of it? We think not. The word "demands," as used in the statute, must be construed to relate only to such legal demands as the law will recognize and enforce. Here it does not appear that Death had either purchased or agreed to purchase the farm until after the 1st of January, 1867. It is stated that Hetfield, in November, 1866, agreed to sell the farm to Death at forty dollars per acre; but it does not appear that Death agreed to purchase it. There does not seem to have been any agreement or understanding between them, at that time, as to the mode or time of payment. The facts stated simply amount to this: Hetfield proposed to sell the farm Lamb, Treasurer, v. Rawles, Executor. at forty dollars per acre; Death did not then agrce to make the purchase, but it was understood by both parties that an agreement for its purchase would be consummated at some future time, which, in fact, did occur on the 3d of January, 1867. It seems evident that the terms of the contract were not settled or agreed upon between the parties until the 3d of January, 1867. So that, aside from any question presented by the statute of frauds, there was no definite or binding agreement existing between them in reference to the sale of the farm on the first of January, 1867; and it follows that Hetfield, on that day, held no legal demand against Death on account of the sale of the farm, no such sale having been then made. The subject had been talked of between the parties, and it may be inferred from the facts stated that both of them confidently expected that a contract would be consummated at some future time, but it did not exist on the 1st of January, 1867. But it is argued that as interest was computed on that part of the purchase-money for which notes were given, from November, 1866, the consummation of the contract on the 3d of January, 1867, related back to November, 1866, and in legal effect, rendered the contract as of that date. This proposition is untenable, as applied to the question before us. To make Hetfield liable to the assessment, he must have held a legal claim against Death on the 1st of January, 1867; and no subsequent contract between them by which a liability was created, could be made to relate back so as to make him liable to be taxed for what, in fact, he did not possess on that day. The finding of the court below is also objected to on the ground that it does not appear that Hetfield had paid the taxes legally assessed against him for 1867, and Roseberry v. Huff, 27 Ind. 12, is cited. That case is not in point here. There it affirmatively appeared that there were legal taxes due against Huff, which he suffered to be returned as delinquent for several years; and the question in the case grew Shannon v. Baker. out of the interest and penalties charged upon them. Here SHANNON V. BAKER, Governor. TITLE TO ELECTIVE OFFICE.- Contest.- Commission.-A person duly elected by popular vote to an office under the constitution and laws of this State has the right to the possession of such office at the commencement of the term for which he was elected, notwithstanding a contest of such election may be pending; and a commission issued to him after the termination of such contest should be made for the term for which he was clected (commencing, not at the date of the termination of the contest, but at the date at which he was entitled to the possession of the office). APPEAL from the Marion Circuit Court. GREGORY, J.-Shannon sued out an alternative mandate against Baker, to compel the issuing of a commission by the latter as Governor, to the former, for the office of clerk of the Laporte Circuit Court for the term of four years from the 10th of May, 1870. The cause was submitted to the court below on an agreed statement of facts. Judgment was rendered against Shannon, from which he appeals. At the general election of 1868, Shannon the appellant, and one Charles Spaeth were candidates for the office of clerk of the Laporte Circuit Court, Shannon being then the clerk, and his commission extending till May 5th, 1869, and until his successor should be elected and qualified. Shannon was by the board of canvassers declared to be duly elected. Within the proper time, Spaeth contested the elec Shannon v. Baker. tion on various grounds. On the 13th of November, 1868, the contest was decided by the board of commissioners in favor of Shannon, and Spaeth appealed to the circuit court. The cause was unavoidably continued in the circuit court until the April term, 1870, when, by agreement of the parties, the appeal was, on the 10th day of May, 1870, dismissed. On May 17th, 1870, Shannon presented to the Governor a duly certified copy of the record and proceedings, and requested the Governor to commission him for four years from the time of the termination of the contest; which the Governor declined to do, but was willing to issue the commission for four years from the 5th day of May, 1869; and the question in controversy was voluntarily submitted to the court. The eligibility of Shannon and the good faith of all the proceedings is also admitted. The question is, when did Shannon's term of office commence under his election in 1868? It is claimed, that the contest suspended his right to the office during its pendency, and that his term therefore commenced at the termination of the contest. It seems to be settled, that where the title to an office is derived from popular election, the commission of the executive is not necessary to the right to exercise the duties of such office. State, ex rel. Cornwell, v. Allen, 21 Ind. 516; Glascock v. Lyons, 20 Ind. 1. This principle seems to be recognized by the code, in which it is provided, that "in every case contesting the right to an office, judgment shall be rendered upon the rights of the parties, and for the damages the relator may show himself entitled to, if any, to the time of the judgment. If judgment be rendered in favor of the relator, he shall proceed to exercise the functions of the office after he has been qualified as required by law." 2 G. & H. 324, secs. 754-5. There is no provision in the constitution or laws of this State requiring a commission before a person duly elected |