Barnard et al. v. Brown et al.

question exempted from execution; that Ullery was entitled to hold the lot in controversy free from any encumbrances by reason of the matters stated in the complaint, and decreed accordingly.

Error is assigned only upon the overruling of the demurrer to the complaint.

The objections to the complaint are:

First. That it did not aver the value of Brown's real estate at any time.

Second. That it did not allege that Brown had no other real estate besides the lot sold to Ullery.

Third. That it did not show that Brown had no other real estate at the time the transcripts were filed.

Fourth. That it did not allege that the defendants had ever issued executions on their judgments, or that they had ever attempted or threatened to enforce their judgments. against the lot in question, or that they even knew of the existence of the lot.

Fifth. That it did not state the value of Brown's personal property at the time of filing the complaint.

Sixth. That it did not assert a demand and a refusal by the defendants to relinquish all claim against the lot conveyed to Ullery.

This proceeding was, in some of its features, a novel one, but it was undoubtedly within the power of the circuit court to grant the relief demanded if the facts relied on were sufficiently well pleaded to justify it in doing so. If the object sought had been simply to have an amount of property, not exceeding in value the sum of $600, set off to Brown as exempt from execution, it might have been well objected that another and a different method of proceeding had been expressly provided, and one to which Ullery was not a proper party; but the purpose had in view in this case was much more comprehensive in its scope. Its claim for relief rested upon equitable principles recognized, but not declared, by

statute.

Barnard et al. v. Brown et al.

The chief and controlling purpose was to have Ullery's title to the lot described quieted, upon the alleged ground that it was, under the circumstances, equitably exempt from execution on all the judgments set forth in the complaint.

The circuit court might, with propriety, have required the complaint to be made more certain and specific in some respects; but we regard it as fairly inferable from the averments of that pleading that, for the three months immediately preceding the conveyance of the lot to Ullery, Brown was the owner only of the lot and of $223 worth of personal property, and that both did not exceed in value the net sum of $600, and that this condition of things existed at the time of the conveyance.

Conceding this condition of things to have existed at that time, and for near three months previously, as we construe the complaint to have substantially averred, the recording of the judgments in the clerk's office did not create any lien upon the lot.

Property exempt from execution is unaffected by execution liens, and may be sold or exchanged even while writs of execution are in the hands of the proper officer. Freeman Executions, section 197; Godman v. Smith, 17 Ind. 152; Taylor v. Duesterberg, 109 Ind. 165.

The material inquiry, therefore, as to the value of Brown's property had relation to the time of the conveyance, and not to the time of the commencement of this suit.

For these reasons the averments as to the issuance of executions on some of the judgments, and as to the filing of certain schedules of his property by Brown, were immaterial to the essential matter of inquiry concerning the value of Brown's property.

No demand was necessary to the maintenance of this action. The appellants had filed transcripts in the clerk's office, and had thus placed themselves in a position to proceed against Brown's real estate whenever they might choose to do so.

The Louisville, New Albany and Chicago Railway Company v. Phillips.

This constituted an element of disturbance to Brown, and a cloud upon Ullery's title, sufficient to justify a resort to legal proceedings for the relief prayed for.

The circuit court did not, as we believe, err in overruling the several demurrers to the complaint.

The judgment is affirmed, with costs.
Filed Oct. 12, 1887.

No. 12,180.

THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY

COMPANY V. PHILLIPS.

RAILROAD.-Negligence.-Right of Public to Use of Track Laid in Street.— Trespass.—Where a railroad track is laid in a public street, the rights of the public and the railroad company respecting the use thereof are mutual, though those of the latter are paramount. A person is not a trespasser who walks along such track, and if in so doing his foot becomes fastened in an opening which exists by reason of the negligent construction of the track, and he is run upon by a train of the railroad company, which is negligently managed, he being without fault, the railroad company is liable for the injuries sustained.

VARIANCE.-Pleading.-Evidence.-A verdict will not be disturbed on account of an immaterial variance between the pleading and proof.

From the Lawrence Circuit Court.

G. W. Friedley and W. H. Martin, for appellant.

J. R. East, W. H. East and G. W. Cooper, for appellee.

ELLIOTT, J.-The appellee alleges in the first paragraph of his complaint that the track of the appellant is laid upon Railroad street, in the city of Bloomington, for the distance of the one-half of a mile; that it crosses several streets,

The Louisville, New Albany and Chicago Railway Company . Phillips.

among others Fourth and Fifth streets; that in constructing the track a space of three or four inches was left between the guard-rail and the rails of the track; that, on the 27th day of December, 1882, the appellee, without any fault or negligence on his part, was crossing the track and caught his foot in the space between the guard-rail and the rails of the track; that the appellant negligently and carelessly ran one of its trains upon the appellee while his foot was fastened between the rails, and greatly injured him.

The second paragraph of the complaint contains substantially the same allegations as to the appellant's negligence in running a train upon the appellee while his foot was fastened between the rails, as to his own care, and as to the occupancy of Railroad street by the appellant's track, but it also alleges that for the use of persons travelling upon the street the appellant had constructed and maintained a walk or platform, and that it was guilty of negligence in constructing and maintaining the walk, thereby endangering the life and limbs of those who travelled over it.

There was no demurrer addressed to the complaint, nor is there any attack upon it that we can properly notice, although counsel have assigned as error rulings upon demurrers to each paragraph of the complaint. We do not, therefore, pass upon the sufficiency of the complaint, but confine our decision to such questions as are properly presented.

The material facts which are established by the evidence are these: In 1853 the track of the appellant was constructed upon and along Railroad street, in the city of Bloomington, and has since been maintained and used. Between the tracks of the company, and on each side, the ground is covered by planks. On the 27th day of December, 1882, the appellee, a lad about eight years of age, was sent on an errand, and passed down Fifth street until he reached Railroad street, and there entered upon the track laid in that street; from this point he walked toward Fourth street, and when opposite the appellant's depot, and within twenty feet of Fourth street,

The Louisville, New Albany and Chicago Railway Company v. Phillips.

his foot was caught between the rail of the track and the plank on the inside of the track. His foot was so firmly fastened that he could not extricate it, and while he was thus fastened a train of cars was run upon him and he was very severely maimed and injured. The employees of the appellant were guilty of negligence in the management of the train, but there was no intentional or wilful wrong on their part. The track was negligently constructed and maintained, and was in such a condition, through the fault of the company, as to endanger the lives and limbs of those walking along the track laid in the street.

It is important to keep in mind the fact that the injury to the appellee did not occur at a street crossing, but at a point on the track laid along a street twenty feet north of the crossing. If the injury had been caused solely by the negligence of the appellant in constructing or maintaining the crossing, there would be no doubt as to the appellee's right of recovery, for it is the duty of a railroad company to maintain street or highway crossings, changed by it for its own purpose and convenience, in a reasonably safe condition for passage. Delzell v. Indianapolis, etc., R. R. Co., 32 Ind. 45; Indianapolis, etc., R. R. Co. v. Stout, 53 Ind. 143; Louisville, etc., R. W. Co. v. Smith, 91 Ind. 119; South, etc., R. R. Co. v. McLendon, 63 Ala. 266; Kelly v. Southern, etc., R. R. Co., 28 Minn. 98; Oliver v. Northeastern R. W. Co., 9 Eng. Rep. (Moak) 350; 2 Wood Railway Law, 1382.

But the appellee was not injured at a crossing, so that the rule we have stated can not directly apply, although the principle which it asserts may exert an important influence in the decision of the case; for, if the place where the injury was inflicted was still a street, the principle the rule embodies does exert a potent influence. 2 Wood Railway Law, 958.

If the place where the accident occurred was exclusively the track of the railroad company, in which the public had no rights, then there can be no recovery on the sole ground that the employees of the appellant were negligent in the