Bissell v. Wert.

but was merely inferential. It is not in every case where the necessary inference of crime follows the finding of an issue against a party, that it can be said the commission of the crime was put in issue. The perjury of a party might be said to be in issue in all cases where he is a witness in the cause. If you plead non est factum to an action brought upon your bond, you do not thereby charge the plaintiff with forgery,nor if you plead payment of it, do you thereby charge him with fraudulently trying to extort the money from you a second time."

Applying the principles of law so well stated in the above case to the one under consideration, it necessarily results, that the instructions given were incorrect, and that the court should have given the instructions asked by the appellant. In this case there was no direct and specific charge of any crime. In fact, there could have been no inference or presumption of crime. The court charged the jury that there had been no larceny committed, for the reason that the property alleged to have been converted was, at the time of such conversion, in the lawful possession of the plaintiff below. A conversion of property under such circumstances could amount to no more than a breach of trust. The court erred in the giving of the instructions complained of, and in refusing the instructions asked. The appellant was entitled to a new trial. It has been very strongly urged upon us by the appellee, that, conceding that the court had erred in the giving of instuctions, the case should not be reversed, for the reason that the verdict of the jury was fully sustained by the evidence. This case is brought here on reserved questions under section 347 of our code, 2 G. & H. 210. The evidence is not in the record, and we are not authorized to say that the giving of an erroneous instruction, which excluded from the consideration of the jury, in effect, the principal ground of defense, resulted in no injury to the appellant. The appellee has also pressed upon our consideration several technical objections to the manner in which the questions are presented in the record, but in view

Dritt v. Dodds.

of the importance of the questions involved, we have preferred to decide the case upon the merits.

The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to grant a new trial, and for further proceedings in accordance with this opinion.

W. A. Woods, for appellant.

7. H. Baker and F. A. S. Mitchell, for appellee.

DRITT V. Dodds.

BILL OF EXCEPTIONS.-Where a motion to dismiss a cause appealed to the circuit court from the board of county commissioners is sustained, the Supreme Court will presume in favor of the correctness of such action of the court below if no bill of exceptions be filed.

APPEAL from the Cass Circuit Court.

DOWNEY, C. J.-This was a proceeding by the appellant against the appellee to contest his election to the office of auditor of the county. Before the commissioners there was a judgment in favor of the contestant. The contestee appealed to the circuit court, where, as the clerk's entry says, the defendant moved the court to dismiss the cause, which motion was sustained; to which ruling of the court the plaintiff excepted. Time was given in which to file a bill of exceptions, but none was ever filed. There is, therefore, no question before us, as we must presume in favor of the correctness of the action of the circuit court. There are many

cases in this court, which might be cited, to this effect. Smith v. Smith, 15 Ind. 315; Conoway v. Weaver, 1 Ind. 263, and cases there cited.

The judgment is affirmed, with costs.

N. O. Ross, R. P. Effinger, and R. Magee, for appellant.
S. T. McConnell and M. Winfield, for appellee.

Milligan v. Poole and Others.

LEFFRET V. Jackson.

APPEAL from the Cass Circuit Court.

PETTIT, J.—This was a proceeding to contest an election, commenced before the board of commissioners. On an appeal to the circuit court, the cause was dismissed on the motion of the defendant. Exception, and time given to file a bill of exceptions, but none was filed. There is, therefore, no question before us for our consideration. On the authority of Dritt v. Dodds, decided at this term, ante, p. 63, the judgment of the circuit court is affirmed, at the costs of the appellant.

D. H. Chase and —, Nelson, for appellant.

S. T. McConnell and M. Winfield, for appellee.

MILLIGAN V. POOLE and Others.

PARTITION. Jurisdiction.—In a proceeding for partition, the court has ample power to settle the rights of the parties interested in the land; and if it has to be sold, their rights are the same in the proceeds that they were in the land; and the court has power to adjust and secure their rights, whether legal or equitable, in the proceeds of such sale.

SAME.-Parties.—All persons interested in the land should be made parties. SAME.-Liens.-Persons holding a lien on any undivided interest, by mortgage, judgment, or otherwise, if made parties to the suit, will be bound by the partition, and limited in their claims to the share set off to the party under whom they claim.

SAME.-A. and B. owned certain real estate as tenants in common. B. sold his undivided interest to C., and gave him a bond for a deed when paid for, and put him in possession; a part of the purchase-money was paid by C. and his notes given for the balance. A. then instituted proceedings for partition, making B. and C. parties defendants, and under the proceedings the land was sold by order of court.

Held, that the contract of sale between B. and C. must be held to have been made with reference to the legal incidents pertaining to the land; that C., when he contracted with B. for the purchase of an undivided interest in the

Milligan v. Poole and Others.

land, knew that A. had the right at any time to compel partition, or in the event that a division could not be made, to have the land sold; and hence the sale of the land in the suit for partition was not a breach of the bond to convey, made by B. to C.; that after the sale B. was no longer bound to convey, and C. was no longer in a condition to demand a conveyance. Held, also, that B. held the legal title only as security for the payment of the purchase-money, and he was entitled to have the residue of the purchasemoney coming to him from C. paid out of the proceeds of the sale, if there was sufficient of it; if not sufficient, he had a right to retain the notes of C. as evidence of his right to collect the residue when it should become due.

APPEAL from the Parke Common Pleas.

DOWNEY, C. J.-Buchanan and Milligan owned certain. real estate in equal shares, as tenants in common. Milligan sold his undivided half to Poole and Magill, gave them a bond for a deed on payment of the purchase-money, and put them in possession. They paid the first two instalments of the purchase-money. Buchanan then instituted a proceeding by petition for partition of the real estate, making Poole and Magill, as well as Milligan, defendants. Milligan filed an answer and cross bill, setting up the facts with reference to the sale of his one-half of the property to Poole and Magill, showing the amount due him on the purchase, and when payable, giving a copy of the bond executed by him to them, asking that his interests be protected by the judgment of the court, and offering to convey to the purchaser under the judgment, if the court should so order, stating also that the property could not be divided, but would have to be sold. Poole and Magill made default.

The court adjudged partition, and appointed commissioners, who subsequently reported that partition of the real estate could not be made without damage to all the owners. Thereupon the court ordered the sale of the property through the agency of a commissioner appointed for that purposc. The court also ordered that the commissioner, after paying the costs and expenses, should pay to Buchanan one-half of the proceeds, and that he pay the other one-half into court for the other parties whose rights therein were not yet setVOL. XXXV.-5

Milligan v. Poole and Others.

tled. The commissioner reported at the next term that he had sold the real estate to Buchanan, whereupon the sale was approved. Poole and Magill then appeared, and on their motion the answer and cross petition of Milligan, filed at the previous term, were stricken out. Milligan excepted by bill of exceptions setting out the rejected pleading. Poole and Magill ther filed a petition setting up the particulars of the contract of purchase by them from Milligan of the one-half of the real estate; that they had paid eight hundred dollars of the price; that there remained to be paid, when due, seventeen hundred dollars, and interest on the same; that they went into possession, and had performed all their part of the contract, but Milligan had permitted the land to be sold, and had failed to protect them in the possession of said real estate, from which they had been evicted by the sale made by the order of the court as above stated; and that he had thus made it impossible for him to perform the contract which he had made with them. They offered to surrender the land, and asked a return. of the amount which they had paid, and the surrender of their notes yet to become due.

They prayed an order of the court rescinding the contract of purchase, for the payment of four hundred dollars to each of them, with interest, to be paid out of the proceeds of the one-half of the property so sold,, before any part thereof should go to Milligan; that Milligan surrender up their notes; that they be released from the payment of any part of the costs; and for other proper relief. They made a copy of the bond from Milligan to them part of their petition.

Milligan demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action, or to entitle Poole and Magill to the relief prayed for. This demurrer was overruled, and Milligan excepted.

The case was then submitted to the court for trial, with a request from both parties to make a special finding. Then follows in the record what purports to be a special finding by the court, but which we cannot so regard, for it is not signed by the judge, nor incorporated in a bill of exceptions. See