(151 Ind. 471)

WILSON v. CURTIS et al. (Supreme Court of Indiana. Nov. 23, 1898.)

EXECUTORS POWER OF TESTATOR TO DELEGATE NOMINATION.

Burns' Rev. St. 1894, § 2375 (Horner's Rev. St. 1897, § 2222), providing that, on probate of a will, the circuit clerk shall issue letters testamentary to the person named as executor; section 2376 (2223), providing that every person named as executor who shall qualify and give bond shall be named in the letters, and, if not thus named, shall be deemed superseded; and section 2379 (2226), providing that, if there be no person named in the will as executor, letters of administration with the will annexed shall be granted to any competent residuary legatee,-admit of a testator's delegating by will the power to legatees to name the executor.

Appeal from circuit court, Howard county; Walter W. Mount, Judge.

In the matter of the estate of Nancy Wilson, John W. Wilson applied for letters of administration c. t. a., and objected to the appointment of Abner R. Barker as executor. From an order overruling the objections and appointing Barker, Wilson appeals. Affirmed.

J. C. Blackledge and C. C. Shirley, for appellant. Bell & Purdum, for appellees.

MONKS, J. Nancy Wilson died testate in Howard county, Ind., in 1897. Her will, which was duly admitted to probate in said county, provided that her executors should buy a "tombstone," and if necessary for the payment of the same, and her debts and funeral expenses, that he sell, at private sale or otherwise, or in such manner, upon such terms of credit as he may think proper, all or any part of her real estate, and to execute and deliver a deed therefor in fee simple. After the payment of the debts, her real estate was devised to her children, and it was provided that the children, or a majority of them, should appoint the executor. All of the children referred to in the will, except appellant, met and signed a writing by which appellee Abner R. Barker was appointed executor of said will. Said appointment was filed in the court below, and Abner R. Barker made his written application to be appointed such executor. Appellant, the oldest son of the testatrix, filed an application to be appointed administrator with the will annexed of said estate. and at the same time objected to the appointment of appellee Barker as executor, on the ground that he was not named as executor in the will. The court overruled the objection to the appointment of said Barker, and he gave bond, and was by the court duly appointed executor of said will, to all of which appellant objected and excepted.

It has been decided that a testator may in his will delegate the authority to name an executor to some third person or persons, and the appointment made by them will be the 51 N.E.-58

same as if made in the will. Williams, Ex'rs, pp. 195, 202 Woerner, Adm'n, § 239; Schouler, Ex'rs, § 41; Crosw. Ex'rs & Adm'rs, p. 52; 1 Thornt. Adm'n, 13, and cases cited; 1 Am. & Eng. Enc. Law, 180, and notes; Hartnett v. Wandell, 60 N. Y. 346; State v. Rogers, 1 Houst. 569; Mulford v. Mulford, 42 N. J. Eq. 68, 76, 6 Atl. 609; Bishop v. Bishop, 56 Conn. 208, 14 Atl. 808; Kinney v. KepIn Bishop linger, 172 Ill. 449, 50 N. E. 131.

v. Bishop, supra, the court said: "The executor is the creation solely of the testator, and it is within the power of the latter not only to appoint personally, but he may project his power of appointment into the future, and exercise it after death through an agent selected by him; and the agent may be pointed out by name, or by his office, or other method of certain identification." It is insisted by appellant that, whatever the rule may be elsewhere, under our statutes no person can be appointed executor unless he is named in the will. Section 2375, Burns' Rev. St. 1894 (section 2222, Horner's Rev. St. 1897), provides that, "whenever any will shall be duly admitted to probate, the clerk of the circuit court in which the same shall have been probated shall issue letters testamentary thereon, to the persons named as executors who are competent by law to serve as such, and who shall appear and qualify," etc. Section 2376, Burns' Rev. St. 1894 (section 2223, Horner's Rev. St. 1897), provides that "every person named in the will as executor, who shall qualify and give bond shall be named in such letters; and every person not thus named shall be deemed superseded." Section 2379, Burns' Rev. St. 1894 (section 2226, Horner's Rev. St. 1897), provides that "if there be no person named in the will as executor, or if those named therein havė failed to qualify, have renounced or have been removed, letters of administration with the will annexed shall be granted by the proper clerk or court to any competent residuary legatee named in such will," etc. These sections were enacted in 1881, and are substantially the same as statutes on the same subject in force in New York in 1885, when the case of Hartnett v. Wandell, supra, was decided. In that case it was held that the delegation of power to appoint an executor was valid at common law, and that it was valid in that state under laws substantially the same as those in force here. It was also held in Baker v. Baker, 18 App. Div. 189, 45 N. Y. Supp. 870, citing 1 Williams, Ex'rs, 189, Ex parte McDonnell, 2 Bradf. Sur. 32, and In re Blancan, 4 Redf. Sur. 151, that a direction in a will that the public administrator shall "sell out all real estate" is an appointment of the person holding that position as executor of the will, and letters testamentary were issued accordingly. We think that the trial court properly held that Abner R. Barker was, under the facts of the case, named as executor in the will of said testator, within the meaning of the statute

above cited, and that no error was committed, therefore, in appointing him executor. Judgment affirmed.

(151 Ind. 474)

STATE v. CHICAGO, I. & L. RY. CO. (Supreme Court of Indiana. Nov. 23, 1898.) RAILROADS-HIGHWAY CROSSINGS-INCORPORATED TOWNS-COUNTY COMMISSIONERS-FLAGMEN.

Rev. St. 1894, § 5174, requiring railroads having more than two tracks across any public highway or road on the order of the county commissioners to place a flagman there, does not apply to crossings in incorporated towns, as Rev. St. 1894, $ 4404 (Horner's Rev. St. 1897, § 3367), gives the trustees of such towns "exclusive power over the streets" within the corporate limits, and hence an order of the commissioners requiring a flagman at a crossing in such town is invalid.

Appeal from circuit court, Washington county; S. B. Voyles, Judge.

Action by the state against the Chicago, Indianapolis & Louisville Railway Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.

W. H. Poynter, for the State. E. C. Field, W. S. Kinnan, and Asa Elliott, for appellee.

HACKNEY, C. J. This was an action by the appellant against the appellee to recover the penalty provided by the act of 1891 (section 5175, Rev. St. 1894) for the failure to maintain a fiagman at the crossing of High street, in the town of Salem, and the main track and a switch track of the appellee. The requirement that such flagman should be so - maintained was by an order of the board of commissioners of Washington county claimed to have been adopted in pursuance of section 1 of said act (Rev. St. 1891, § 5174). The section referred to provides "that all railroads owned or operated in the state having more than two tracks across any public highway or road and used for switching purposes exclusively, or regularly, or if only one track, and used for switching purposes, said railroad corporation shall, upon the order of the county commissioners in which said railroad is located place a flagman at said crossing and maintain the same at their expense, from six o'clock a. m. to eight o'clock p. m. of each and every day, or so long as said commissioners deem it necessary." The appellee's demurrer was sustained to the appellant's complaint, and that ruling is the only assigned error. Constitutional objections are urged to the statute referred to, and, upon the appellant's construction of the statute, would require us to pass upon them.

We

are of the opinion, however, that it was not intended by the act in question to confer upon county boards any power or authority over the streets of incorporated towns, and that the order of the board, therefore, was invalid. "Public highways or roads" are the words of the statute describing the thoroughfare over which this power of the board is

given. If this expression were employed in a general and unlimited sense, it would include streets, since streets are a class of highways. But in construing the act we are to ascertain whether the legislature intended to include streets in the class over which the power was given. Primarily all power over all thoroughfares is with the legislature. For many years, if not from the beginning, this power has been so delegated by the legislature as to give control over urban ways to the cities and towns, and over suburban ways to the county boards and township officers. In keeping this control subdivided, an orderly system has prevailed with reference to the establishment, improvement, repair, and vacation of ways, and the sources from which the necessary funds are derived, and the offi cers executing these various functions and expending such funds. As to towns it has been and now is provided that "the board of trustees of incorporated towns in this state shall have exclusive power over the streets," etc.. "within the corporate limits of such town." Rev. St. 1894, § 4404 (Horner's Rev. St. 1897. § 3367). An intention to modify this "exclu sive power over the streets," and to disturb this prevailing orderly system, should be man ifest before the courts could construe the act In question as giving county boards control over the streets of an Incorporated town This "exclusive power" is utterly inconsistent with the exercise of any power by the county board. Sparling v. Dwenger, 60 Ind. 80. Tucker v. Conrad, 103 Ind. 354, 2 N. E. 803. The act in question, interpreted with reference to the class of highways over which the board has exercised power, namely, those ways the control of which is not given spe cially to cities or towns, would maintain the consistency of the existing laws, and not introduce conflict in their practical enforce ment. We do not doubt that the legislature bas power to recall any fraction of its authority over streets delegated to towns, and to confer it upon county boards, but we are as free from doubt in holding that it was not intended by this act to do so. The ruling of the circuit court was correct, and the judgment is affirmed.

(152 Ind. 39)

ROWND et al. v. STATE et al. (Supreme Court of Indiana. Nov. 18, 1898.) MARSHALING ASSETS-PLEADING-APPEAL

1. Where one creditor has a judgment lien on several properties of the judgment debtor, and others have liens, some on all the properties and others on a part only, a bill to marshal assets will lie.

2. A demurrer to two paragraphs of a pleading because neither states a cause of action or defense is joint, and hence must fall, unless both paragraphs are demurrable.

3. Where there was competent evidence. direct or circumstantial, or both, sustaining a finding by the trial court of fraud in a conveyance, the supreme court will not disturb it on the weight of the evidence.

'Rehearing denied, 52 N. E. 395.

Appeal from circuit court, Clark county; George H. D. Gibson, Judge.

Bill by the state of Indiana against Robert M. Rownd and others. There was a decree for plaintiff, and some of defendants appeal. Affirmed.

Rankin & Rector, T. E. Powell, and C. L. & H. E. Jewett, for appellants. W. A. Ketcham, for appellees.

MONKS, J. This action was brought by the appellee the state of Indiana against appellants. Appellants Rownd and Gray alone assign errors. Those not waived are as follows: (1) That the complaint does not state facts sufficient to constitute a cause of action. (2) The court erred in overruling the demurrer of the appellants Robert M. Rownd and David S. Gray to the second paragraph of the answer of the appellee the state of Indiana to the cross complaint of said appellants Rownd and Gray. (3) The court erred in overruling the demurrer of the appellants Robert M. Rownd and David S. Gray to the third paragraph of the answer of the appellee the state of Indiana to the cross complaint of the appellants Rownd and Gray. (4) The court erred in overruling the joint and several motions of Rownd and Gray for a new trial.

It is first insisted that the complaint stated no cause of action against Rownd and Gray. The state of Indiana recovered a judgment in the court below against one Patton, who owned manufacturing plants in Clark and Delaware counties, in this state, and caused executions to be issued on said judgment to said counties, and levied upon said plants. Said property appeared to be incumbered by liens held by different persons, and the state commenced this action for the appointment of a receiver; to set aside certain chattel mortgages upon a part of said property levied upon (one of which was held by the appellants Rownd and Gray), on the grounds that they were executed to hinder, delay, and defraud the creditors of said Patton; and to sell said incumbered property, and marshal the assets of said Patton, and distribute the same to the persons holding liens thereon according to their priority. The only objection urged against the complaint by Rownd and Gray is that the allegations of fraud are not sufficient to avoid the mortgage executed to them by said Patton, and that, therefore, the complaint did not state facts sufficient to constitute a cause of action against them. The complaint was sufficient as to said appellants, even if all the allegations of fraudulent intent and purpose, in the execution and acceptance of said mortgage, had been omitted therefrom. It is well established that courts of equity have jurisdiction to marshal the assets and securities of a debtor. The general principle is that, if one party has a lien on, or an interest in, two or more funds, as security for a debt, and another party has a

lien on, or interest in, one only of those funds, for another debt, and others have liens, some on all of said funds, and some only on a part thereof, as in this case, a bill to marshal the assets will lie. 1 Story, Eq. Jur. c. 13; 1 Pom. Eq. Jur. §§ 112, 186, 410, 1414; Ostrander v. Weber, 114 N. Y. 101, 21 N. E. 112; Reilly v. Mayer, 12 N. J. Eq. 55; Van Mater v. Ely, Id. 271.

It is next insisted that the court erred in overruling the demurrer of Rownd and Gray to the second and third paragraphs of the answer of the state of Indiana to the cross complaint of said Rownd and Gray. Rownd and Gray each filed a separate cross complaint, upon notes executed by said Patton to them, and the chattel mortgage executed to secure said notes, on certain property upon which the execution, issued on the judgment in favor of the state, had been levied. It was alleged that said chattel mortgage was a first lien on the property described therein, and each asked for an order that the proceeds of such property be first applied by the receiver to the payment of the claims of said appellants. The state of Indiana filed an answer in four paragraphs to said cross complaints of Rownd and Gray. Appellants Rownd and Gray filed a demurrer to the second and third paragraphs of said answer in the following form: "The defendants Robert M. Rownd and David S. Gray demur to the second and third paragraphs of the answer to the cross complaint of said defendants Rownd and Gray, and for cause of demurrer say neither of said paragraphs of answer states facts sufficient to constitute a good defense to either of said cross complaints." This demurrer was joint, and not several. Cooper v. Hayes, 96 Ind. 390, and cases cited; Stone v. State, 75 Ind. 235, 236; Silvers v. Railroad Co., 43 Ind. 435; Stanford v. Davis, 54 Ind. 45. It follows that, if either said second or third paragraph of said answer was good, the demurrer was properly overruled. The second paragraph of answer was a plea of payment, and said appellants do not claim that said paragraph was not good, but assail the third paragraph of answer only. As said second paragraph of answer was sufficient, the court did not err in overruling the demurrer, even if the third paragraph was not good. City of Plymouth v. Milner, 117 Inu. 324, 325, 20 N. E. 235; Durham v. Hiatt, 127 Ind. 514-519, 26 N. E. 401.

It is contended by appellants Rownd and Gray that the finding of the court was not sustained by the evidence. It is insisted in their brief that the controlling question is whether the evidence shows that "Rownd and Gray participated with Patton in any fraud by which the state of Indiana suffered, or by which they intended that the state of Indiana should suffer." It is true, as insisted by said appellants, that, in this state, an insolvent debtor may, in good faith, prefer one bona fide creditor to the exclusion

of others; and a mortgage or other security given in good faith to secure a bona fide indebtedness, and accepted in good faith for that purpose, cannot be set aside by the other creditors on the ground that the giving and accepting of such security may result in defeating their claims. Levering v. Bimel, 146 Ind. 545, 45 N. E. 775; Straight v. Roberts, 126 Ind. 383, 26 N. E. 73; Gilbert v. McCorkle, 110 Ind. 215, 11 N. E. 296. But if Patton executed the chattel mortgage in controversy to appellants Rownd and Gray, with the fraudulent intent to cheat, hinder, delay, or defraud his creditors, and they were injured thereby, and said appellants participated in such fraud, it is clear that such mortgage may, in an action brought by one or more of the creditors, be set aside. It is not necessary, however, to establish the charge of fraud by direct and positive proof. As a general rule, men do not perpetrate fraud openly, but the attempt is made to carry out the fraudulent purpose in such a way as to conceal the real intent and purpose, and give it the appearance of fairness and honesty, and thus baffle detection. Fraud is therefore usually established by circumstantial evidence. Conduct which, standing alone, would seem innocent and harmless, when considered in connection with other facts and circumstances may furnish sufficient grounds to sustain an inference of fraud. It is "usually shown by the outlook, the circumstances, and environments of the transaction, and the situation and relations of the parties, and must be tested by our knowledge of human nature, and the motives and purposes which move men in the ordinary transactions of life." Wait, Fraud. Conv. (3d Ed.) pp. 15, 16. As was said in Bump on Fraudulent Conveyances (4th Ed. p. 592): "The frequency of frauds upon creditors, the difficulty of detection, the powerful motives which tempt an insolvent man to commit it, and the plausible casuistry with which it is sometimes reconciled to the consciences even of persons who have been without reproach, are considerations which prevent its classification among the grossly improbable violations of moral duty, and often permit it to be presumed from facts which may seem slight. How much evidence is required to raise a presumption of actual fraud cannot be determined according to any inflexible rule." Whether said Patton executed the chattel mortgage to said appellants with the fraudulent intent charged, and whether said appellants participated therein, were questions of fact to be determined by the trial court. Kelly v. Lenihan, 56 Ind. 448, 450, 451; Rhodes v. Green, 36 Ind. 715. This court said in Rhodes v. Green, supra: "Since fraud is a question of fact, and not of law, it is the peculiar province of the jury to decide upon the facts, and the credibility of the witnesses, and the weight and effect of their evidence. Fraud may be found from the circumstances as well as from posi

tive evidence." What was said in regard to the province of the jury in said case applies with equal force to the court in this case as the trior of the facts. If there was compe tent evidence, either direct or circumstantial, or both, which sustains the finding, this court cannot disturb the same on the weight of the evidence. After a careful examination of the evidence, we cannot say that the finding of the court was not sustained thereby. As there was competent evidence which satisfied the trial court, we cannot disturb the finding. Judgment affirmed.

(152 Ind. 139)

UNION NAT. SAVINGS & LOAN ASS'N v. HELBERG et al. 1

(Supreme Court of Indiana. Nov. 22, 1898.) MECHANICS' LIENS-LIMITATIONS-MORTGAGES.

Horner's Rev. St. 1897, § 5298 (Burns' Rev. St. 1894, § 7259), making a mechanic's lien void if not enforced within a year after it is recorded, precludes a mechanic's lienor, foreclosing his lien without making the holder of a mortgage junior to his lien a party, from asserting any rights, other than that of an owner of the land having a right to redeem, as against the mortgagee bringing suit to foreclose more than a year after the filing of the lien.

Appeal from superior court, Lake county; J. E. Cass, Judge.

Action by the Union National Savings & Loan Association against George H. Helberg and one Mosier. From a judgment for Mosier, plaintiff appeals. Reversed.

Olds & Griffin, for appellant. Peter Crumpacker, for appellees.

HACKNEY, C. J. The appellant sued to foreclose a mortgage executed by the appellee Helberg. The appellee Mosier, by cross complaint, sought to enforce a mechanic's lien as senior to the mortgage. The essential facts were that Helberg owned a lot in the city of Hammond, and in December, 1892, contracted with Mosier for the erection of a dwelling house. The dwelling house was under construction when, in March, 1893, the appellant, with knowledge of said contract and the work upon said house, made a loan of $1,300 to Helberg, which loan was secured by a mortgage of said lot. On the 30th day of September, 1893, within the statutory time, Mosier gave the proper notice of a mechanic's lien. On the 8th day of September, 1894, Mosier sued to foreclose said lien, not making the appellant a party, and in February, 1895, purchased said property under a decree of foreclosure. The lower court held the lien of Mosier senior to that of the appellant, and that holding presents the question for decision by this court.

It is not questioned that, in point of time. the mechanic's lien was, by relation back to the time when the work began, senior to the mortgage; but it is insisted that by the failure to bring suit to foreclose such lien, as against the appellant, within one year from 'Rehearing denied.

*

the giving of such notice, the lien was waived as to the appellant. The statute, giving the remedy for the foreclosure of mechanics' liens, provides that "any person having such lien may enforce the same by filing his complaint in the circuit or superior court of the county where the labor was performed or the materials, machinery, articles, things, or service furnished or rendered at any time within one year from the time when said notice has been received for record by the recorder of the county, * and if said lien shall not be enforced within the time prescribed by this section, the same shall be null and void. Horner's Rev. St. 1897, § 5298 (Burns' Rev. St. 1894, § 7259). It will thus be seen that the remedy is limited to one year, and, if the complaint is not filed during that period, the lien is void. We have seen, also, that the remedy, as against Helberg, the owner of the property, was enforced within the year. Does the statute require that the remedy shall be enforced also against existing junior lienholders, within the year, to save the validity of the senior lien? The requirement of the statute is general, and coutains no exception applicable to this case. Its object was to prevent the ex parte incumbrance from beclouding titles, and embarrassing dealings with reference to the property, for a longer perior than one year. This object cannot be said to concern the property owner alone, for the junior incumbrancer is interested in having the lien determined while the extent of labor or materials may be more easily ascertained, and while values, as to the lien, may not become obscure, and, as to the property, may not become impaired. A foreclosure, as against a junior lienor alone, could hardly be said to satisfy the statutory requirement if objection were made by the property owner. If, upon such foreclosure, the year having expired, the owner could assert the invalidity of the lien, it would seem that the rule should also be upheld that a foreclosure against the owner alone would not preclude the junior lienor to assert the invalidity of the lien as against his lien. Even as between mortgagees, where the senior is foreclosed without bringing in the junior, the foreclosure is a nullity as to the junior. Gaskell v. Viquesney, 122 Ind. 244, 23 N. E. 791, and authorities there cited; Catterlin v. Armstrong, 101 Ind. 258. The same rule has been generally applied to mechanics' liens. See 15 Am. & Eng. Enc. Law, p. 165, note 4. If the analogy is fair, and we think it is, we may say that the foreclosure by Mosier was, as to the appellant, as no foreclosure, and did not preclude or estop the appellant to deny the validity of the lien, under the provisions of the statute. In Alabama it was held, in an action to foreclose a lien, commenced against the husband within the statutory period, the wife being brought in by amendment after the period, that the statute was a bar in her favor. Seibs v. Engelhardt, 78 Ala. 508. In Dunphy v. Rid

dle, 86 Ill. 22, Crowl v. Nagle, Id. 437, and McGraw v. Bayard, 96 Ill. 146, it was held that a suit within the statutory period against the property owner, and to which a junior incumbrancer was made a party after the statutory period, could not be maintained against the junior incumbrancer. In Dunphy v. Riddle, supra, it was held that the limitation, "unless suit be instituted to enforce such lien within six months," required that the suit should be instituted against the owner, creditor, or incumbrancer to be available. In this state it has been held that the limitation applies in favor of a purchaser pending the lien. Holland v. Jones, 9 Ind. 495; Marvin v. Taylor, 27 Ind. 73; Schneider v. Kolthoff, 59 Ind. 568. These holdings support the conclusion that the statute is available in favor of all who are interested, and against whom proceedings have not been instituted within the limited period. While we hold that the failure to make the appellant a party to his foreclosure lost to Mosier the seniority of his lien, we do not hold that his foreclosure was entirely fruitless. It had the effect to place Mosier in the shoes of Helberg, and to carry to him the equity of redemption. Holmes v. Bybee, 34 Ind. 262; Catterlin v. Armstrong, 101 Ind. 258; Browning v. Smith, 139 Ind. 280, 37 N. E. 540. The judgment is reversed, with instructions to sustain the demurrer to the cross complaint, and to grant a new trial.

(151 Ind. 442)

LONG v. CITY OF PORTLAND. (Supreme Court of Indiana. Nov. 15, 1898.) ORDINANCE-CONSTRUCTION -"KEEPING" CHICK

ENS.

A dealer who on Saturday takes in a large number of chickens, and retains them in the building, on the ground of a railroad company, occupied by him, and near which ran a side track, and ships them, on Monday, in the mean. time feeding them, does not violate an ordinance declaring it a nuisance for one "to keep" within the city, for the purpose of feeding for the market, more than 50 chickens.

Appeal from circuit court, Jay county; J. W. Headington, Judge.

Joseph A. Long was convicted of violating Reversed. an ordinance, and he appeals.

John M. Smith and John F. La Follette, for appellant. D. T. Taylor and S. A. D. Whipple, for appellee.

HACKNEY, C. J. The appellant was char ged by the city, and found guilty, of the vio lation of section numbered 2 of an ordinance of said city, as follows:

"Sec. 2. That it shall be unlawful for any person or persons to keep in any lot or enclosure within the corporate limits of said city of Portland, Indiana, for the purpose of slaughtering or feeding for marketing or slaughtering, any cattle, hogs, sheep, or other animals in any number; or any geese, chickens, ducks, turkeys or other fowls exceeding