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Bates.

Nov. Term, be paid was not ascertained and fixed; but by that agree1859.

ment, the matter was referred to certain persons, that the THE INDIANA amount to be thus paid might be ascertained. The stat

ute does not say that agreements to thus pay shall be binding only as to fixed or certain sums, but is as to agreements to pay any sum, and we think properly includes this agreement.

As to the other error assigned, whether the objection was well taken or not, we need not decide, as the record has, since the said assignment, been, upon certiorari, so corrected as to show that the finding corresponds with the judgment.

Per Curiam.—The judgment is affirmed with 3 per cent. damages and costs.

J. B. Niles and A. L. Osborn, for the appellant.

THE INDIANA POTTERY COMPANY v. Bates and Others.

If a firm pays for land, and the conveyance is to one of the partners, there is

a resulting trust in favor of the firm. And in a suit by one claiming title under the firm for a conveyance of the

land, the heirs of the trustee are proper defendants; and they cannot object that the surviving partners and the heirs of those deceased arc made co-defendants.

Saturday,
December 24.

APPEAL from the Perry Circuit Court.

Hanna, J.— The complaint states that, in 1836, Samuel Casseday, James Cleus, William Bell, Reuben Bates, and seven others, were associated as partners under the style of the Lewis Pottery Company, for the manufacture of earthenware and china, and were possessed of certain lands in said county; that in 1836, they bought from Thomas E. Greswold, for the purpose of said partnership, a tract of land containing six acres, adjoining the town of Troy; that at the suggestion of the said Bates, who was one of the members of said partnership, said purchase was made

BATES.

through him, and in his name, and a conveyance executed Nov. Term, by Greswold and wife to Bates, on the 27th day of July,

1859. 1836, and the consideration therefor, 120 dollars, paid to THE INDIANA

POTTERY Co. Greswold by William Bell, treasurer, for and on behalf of the company, and a receipt therefor given at the foot of the deed; both of which (the deed and the receipt) are made part of the complaint.

It is further alleged that, by a verbal understanding and agreement, Bates was to hold the land for the company, by whom the consideration was paid.

It is also alleged that in January, 1837, the company was incorporated by the general assembly, under the style of the Indiana Pottery Company, and organized, and the partners, by a verbal agreement, for a consideration, adjusted in full, sold the land and their other real and personal partnership property to the incorporated company; and the purchaser took possession of, and made valuable and lasting improvements upon, said lands with the knowledge and consent of Bates. The widow and heirs of Bates and the surviving members of the partnership, with the heirs of those deceased, are made defendants, and a conveyance of the land is prayed for.

The heirs of Bates demurred to the complaint

1. Because of an alleged failure to state facts sufficient to constitute a cause of action.

2. Because the members of the company are defendants.

The demurrer was sustained by the Court below, to which plaintiffs excepted and appealed.

As to the first objection, it was insisted by plaintiff that the complaint showed an implied or constructive trust, such as is within the contemplation of the saving clause in the “ Act for the prevention of frauds and perjuries (R. S. 1831, p. 269, § 5), while on the part of defendants it was urged that because it is alleged that Bates took and held the land under a verbal agreement, the trust is an express one, and cannot be implied or resulting, and that an action to enforce it is barred by the statute.

The saving clause in the section referred to makes valid

Nov. Term, any verbal transfer of real estate “by which a trust or con1859.

fidence shall or may arise or result by the implication or ARNOLD construction of law." FLEMING.

The demurrer was not well taken.

It has been often decided by this Court, that if one person pays the consideration for land, and the conveyance is to another, there is a resulting trust in favor of the one who advances the money to make the payment. Resor v. Resor, 9 Ind. R. 317, and authorities cited.

The heirs of Bates were assuredly proper parties, and it is not for them, under the circumstances, to say that their co-defendants are not proper parties. But although, perhaps, they might not have been necessary parties, a question we need not decide, yet there could be no objection to making them parties for the purpose of concluding them as to any resulting interest which they might at any time set up as cestui que trusts of said Bates.

That they were, or had been, members of the original company, and afterwards of the corporation, cannot preclude the corporation, which may number a hundred other members, for ought that appears on the record, from the maintenance of the suit, where the contract was made by individual members with the said corporation.

Per Curiam.- The judgment is reversed with costs.
Cause remanded, &c.

B. Smith and J. Pitcher, for the appellants.
L. Q. De Bruler and D. T. Laird, for the appellees.

Arnold and Another v. FLEMING, Administrator.

Saturday,
December 24.

APPEAL from the Lagrange Court of Common Pleas.

HANNA, J.— Fleming obtained a judgment before a justice for less than 100 dollars against appellants. Defendants appealed, and moved to dismiss the cause on the

FERRY.

ground that an administrator could not sue before a jus- Nov. Term, tice.

1859. By the 2 R. S. p. 17, § 4, Common Pleas Courts have The Jeffer

SONVILLE, &C. exclusive jurisdiction in suits against executors, &c. But Railro's Co. we know of no statute by which the right of executors, &c., to sue in the justice's Court is taken away. That right, with limitations as to amounts, existed before the enactment of the statute quoted. The justices' act appears to confer jurisdiction within a given amount, without reference to the character in which a party sues.

Per Curiam.— The judgment is affirmed with 10 per cent. damages and costs.

J. M. Flagg, for the appellants.
J. B. Howe, for the appellee.

THE JEFFERSONVILLE RAILROAD COMPANY v. FERRY and

Others.

APPEAL from the Bartholomew Circuit Court.

Saturday,

December 24. Hanna, J.-An application was made by the appellees to compel the appellants to take the necessary steps to assess the damages which it is alleged were caused to the real estate of the appellees by the construction of the road of the appellants. An alternative mandate was granted, to which the company appeared and answered in denial. The evidence was heard and the order made absolute. From this order the company appeals.

The only question in the case is, whether a peremptory mandate should have been ordered.

It appears that within two years after the company took possession of the land described, upon which was a warehouse, Ferry and others filed a claim with the company for damages, naming an appraiser, &c., and fully describing the property and its location, except that it was alleged to be in section 25, when in truth it was in section 23. The

V.

Nov. Term, company, as provided by their charter, also appointed an
1859.

appraiser, but upon the discovery of the mistake in the
Parker description, directed him to desist from making the assess-
McAllister. ment, &c.

The
proper

correction was afterwards made in the title
deeds, &c., and in the description of the land, but the ap-
pellants had not caused the assessment of damages to be
made.

It is insisted that, as the property was taken possession of since the adoption of the new constitution, the appellees had an ample remedy at law, without a resort to a mandate. This proposition is based upon the provision of that instrument, to the effect that “no man's property shall be taken by law, without just compensation; nor except in case of the state, without such compensation first assessed and tendered.”

We are not able to perceive how this question can fairly
arise upon the record as presented to us. There does not
appear to have been any demurrer filed to the complaint
setting forth the facts upon which a mandate was prayed.
The ruling of the Court upon the motion to quash the
alternative writ was not excepted to. The record does not
profess to set forth all the evidence.

Per Curiam.The judgment is affirmed with costs.
C. E. Walker, for the appellants.
W. Singleton, for the appellees.

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12 144 205

Parker v. MCALLISTER.

Where a contract for the sale and conveyance of land provided that the first

payment of the purchase-money should be made "by the first day of Au-
gust,it was held that an offer to pay on the 31st day of July, was not pre-

mature. The language quoted is equivalent to "on or before,” &c.
Where, by the terms of a contract for the sale and conveyance of land, the

payment of the first installment of the purchase-money was to precede the
execution of the deed, but the vendor refused to receive the money and exe-

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