ed them with the matter and subject of the Gilfillin litigation, and that at least the adults understood it. More than 10 years elapsed since the rendition of the decree upon which Yanaway's title to the 80-acre tract rested, without the validity of such proceedings being questioned. Moreover, in 1882 they were made parties defendant, as will be hereafter seen, in respect of other lands belonging to the estate, and lying in the same county, and failed to question the good faith of Henderson as their guardian in respect of said estate until the bringing of this suit, in February, 1886, although all of them had, with the exception of James Swift, Jr., arrived at full age long prior to that time. Without pausing to determine whether they are barred by laches, it is sufficient to say that after the delay the court would be justified in requiring clear and satisfactory proof of the existence of the alleged fraud by which it is sought to impeach the bona fides of the defendant in error's title. We are of the opinion that, as to the 80-acre tract of land mentioned in the bill, the decree dismissing the bill was properly entered.

As to the 20-acre tract mentioned in the bill, a different conclusion should be reached. In February, 1882, "George S. Henderson, guardian of James Swift, Jr.," brought his bill in the circuit court of Cumberland county against "Mary Broadhead, Susannah Morelock, and Anna Strangle," for partition of said 20-acre tract of land. The discrepancy in the names of the defendants, from those of the plaintiffs in error, or the effect of such misdescription, need not be here noticed. In this case the record and files were also destroyed by the fire, as before mentioned, except the decree for sale. It appears from the findings of that decree that the commissioners appointed to make partition of the land therein described, being the said 20 acres, reported that the same was not susceptible of division, without, etc., and that they placed the value of said land at $206. It was thereupon decreed that the master in chancery, after first publishing a notice of the sale of said premises in a newspaper in the county of general circulation, giving the time and place of such sale, etc., and the posting of five notices thereof, etc., should sell the land at the courthouse door in said county, to the highest bidder for cash in hand, and make the purchaser a good and sufficient deed of conveyance therefor; and it was then decreed that, "out of the proceeds, pay the cost of suit, including an attorney's fee of $20 to the complainant's solicitor, and pay to said N. L. Scranton said sum of $75 heretofore found due him," etc.; and orders the residue to be paid, onequarter to the complainant, for his ward, James Swift, Jr., and a quarter to each of the defendants, etc. Defendant in error, Yanaway, became the purchaser of said land

at the sale subsequently made pursuant to said decree. Without discussing the many questions raised in respect of this second proceeding, it seems clear that the decree is void upon its face. It appears from the entitling of the cause, as well as by the decree itself, that the suit was brought by George S. Henderson, as a party in interest. James Swift, Jr., who presumably was the owner of the land, and the real party complainant, is not made complainant; but Henderson, who had no interest in the estate, was complainant in such proceeding. It is true there is attached to his name the descriptio personae of "Guardian of James Swift, Jr." Without extending this opinion, it is clear, from the record, that there was here want of proper party complainant, and while the record of the cause, or the title thereof, may at the proper time be amended, as to the parties, on leave, no such step having been taken, the proceedings and decree are ineffectual to pass the title of the ward, or stop him from asserting his title on arriving at full age. Hoare v. Harris, 11 III. 25; McDonald v. Brown, 16 Ill. 32. In the case cited it was held that a suit brought by a guardian in the manner above shown was not a suit by the ward, and did not bring him into court as a party. See, also, Smith v. Brittenham, 109 Ill. 549. In this case, as in the other, no attempt has been made to restore the files on the record, and, without the preceding orders, it does not appear that the court was either authorized to order the sale of the premises, or to make distribution of the proceeds decreed by the court. Nor does it appear that the court had acquired jurisdiction over the person of either the plaintiff in error James Swift, or of the defendants in this proceeding, or other plaintiffs in error here. Moreover, it does not appear that the court was authorized to require the payment of $75 to a person apparently an entire stranger to the proceedings, to whom it was not shown the owners of the land were indebted, or who it was pretended had any lien upon the lands of the plaintiffs in error. Without extending this discussion, we are of opinion that the decree, as rendered in said proceeding at the suit of Henderson, was unauthorized and void, and that the court therefore erred in dismissing the bill as to that tract of land.

Numerous other questions are presented, but their consideration would be of no avail. For the reason stated the decree of the circuit court in dismissing the bill as to said 20-acre tract of land will be reversed, and the cause remanded to the court for further proceedings. In all other respects the decree is affirmed. Affirmed in part, and reversed in part.

WILKIN, C. J., took no part in the consideration and decision of this case.

SHAUL v. RINKER et al. (Supreme Court of Indiana. Nov. 16, 1894.) SUIT FOR PARTITION-FILING CROSS COMPLAINTREQUIREMENT OF FURTHER PROCESS-TRANSACTION WITH MINOR-DISAFFIRMANCE.

1. Where the original complaint in an action for partition alleges that plaintiff and certain of the defendants are owners in fee of an undivided portion of the land, and that one of the other defendants is owner in fee of the remainder, and a cross complaint filed by one of the original defendants alleges that she is owner in fee of all the land, and asks that the title be quieted in her as against others of the original parties, process must issue on the defendants named in the cross complaint, in order to bind them by a decree rendered there

on.

2. One dealing with minors in relation to real property, with full knowledge of their incapacity, cannot insist upon a restoration of the consideration as a condition precedent to their right to disaffirm. under Rev. St. 1881, § 2945 (Rev. St. 1894, § 3365), providing for such restoration where the minor has falsely represented himself to be of age, and his grantee acted in good faith, and relied upon those representations.

Appeal from circuit court, Madison county; A. Ellison, Judge.

Action by Flora Rinker, Minnie Huston, Clarence Huston, Frank Huston, and Blanche Huston, against Laura Shaul to set aside a decree fraudulently procured by defendant Shaul in an action by plaintiff Rinker against her coplaintiffs, defendant, and another for partition. From an order overruling her demurrer to the complaint, and one sustaining a demurrer to her answer, defendant appeals. Affirmed.

Howell D. Thompson, John T. Ellis, and Edward E. Hendee, for appellant.

COFFEY, J. On the 7th day of September, 1891, the appellee Flora Rinker commenced an action in the Madison circuit court against her coappellees, Minnie Huston, Clarence Huston, Frank Huston, Blanche Huston, the appellant (Laura Shaul), and others, for the partition of a tract of land described in her complaint in that cause. She alleged in her complaint, among other things, that she and Clarence Huston, Frank Huston, Minnie Huston, and Blanche Huston were the owners in fee and tenants in common of the undivided two-thirds of the land, and that someone of the other defendants-but which one, she was unable to state-was the owner in fee of the remaining one-third. The appellees Minnie Huston, Clarence Huston, Frank Huston, and Blanche Huston were defaulted; but. being minors under the age of 21 years, a guardian ad litem was appointed for them, who filed an answer. The appellant, Laura Shaul, filed a cross complaint against the plaintiffs in that action, Minnie Huston, Clarence Huston, Frank Huston, Blanche Huston, and others, in which she alleged, among other things, that she became the owner in fee of all the land described by deed of conveyance executed by Lucy A. Huston on the 16th V.38N.E.no.13-38

day of February, 1878; that said Lucy A. Huston put her in possession, and that she continued to own and possess the same, paying all taxes and assessments thereon, until she sold and conveyed the same, by general warranty deed, to William P. Harter; and that the appellees herein were asserting an unfounded claim to the land, which cast a cloud upon the title. Prayer that the title be quieted in Harter. No process was ever issued on this cross complaint, but without such process the court appointed a guardian ad litem for the appellees, and proceeded to try the cause, rendering a decree on the cross complaint quieting title in Harter.

The complaint in this cause alleged that the finding and judgment in favor of Laura Shaul was procured by fraud upon the court, in this: that her attorneys represented to the court that the cause, both as to the complaint and cross complaint, had been compromised and adjusted, and that, by agreement, Harter must have a finding and judgment quieting his title; that said finding and judgment were made and rendered by the court without any notice to the defendants to said cross complaint, and that the court had no jurisdiction of the persons of said defendants; and that the finding and judgment are without jurisdicThe court overruled a detion and void. murrer to the complaint, and the appellant excepted. Thereupon, she filed an answer averring that the decree which the appellees were seeking to set aside was rendered by agreement; that by the terms of said agreement the appellant agreed to pay to the clerk of the Madison circuit court, for the use of the appellees, the sum of $590, and to surrender for cancellation a tax certificate which she held against the land in controversy, of the value of $80; that said decree was rendered pursuant to said agreement, and that she thereupon paid said sum of money to the clerk, and surrendered said certificate for cancellation; that after the decree was entered the appellees, with knowledge of its terms, accepted said money from the clerk, and still retain the same, never having returned, or offered to return, the same. То this answer the court sustained a demurrer, and the appellant excepted. On final hearing the court set aside the decree in favor of Harter, from which action of the court this appeal is prosecuted.

We are of the opinion that the circuit court did not err in overruling a demurrer to the complaint in this cause. The cross complaint of Laura Shaul set up a new cause of action not disclosed in the original complaint, and it was therefore necessary to issue process thereon against the defendants therein named, in order to acquire jurisdiction over their persons. Elliott, Gen. Pr., and authorities cited (section 375). The record discloses the fact that this was not done. For this reason the court had no jurisdiction as to these appellees, and the decree, as to them, was void.

We think the answer of Laura Shaul was wholly insufficient to bar the right of action set up in the complaint. Section 2945, Rev. St. 1881 (Rev. St. 1894, § 3365),1 has no appliIcation to the case, inasmuch as the record discloses the fact that the appellees were minors under the age of 21 years. In dealing with them with full knowledge that they were under legal disabilities, and could not bind themselves by contract, she was bound to know that they might at any time rescind such attempted contract without restoring what they had received. Nor does section 632, Rev. St. 1881 (section 644, Rev. St. 1894), apply to the case, as this was an action to review a judgment, and not an appeal to the supreme court.

Numerous motions were made by the appellant, after the finding and judgment entered by court, having in view a modification of the decree entered in this case; but, as the questions presented by these motions are the same as those we have discussed, we deem it unnecessary to extend this opinion by setting them out. There is no error in the record for which the judgment should be reversed, and the same is therefore affirmed.

PITTSBURG, C., C. & ST. L. RY. CO. v. BURTON.

(Supreme Court of Indiana. Nov. 16, 1894.) INJURY AT RAILROAD CROSSING-CONTRIBUTORY

NEGLIGENCE.

A finding that plaintiff's view and hearing of an approaching train were cut off 375 feet before reaching the tracks; that he proceeded slowly until his horses passed to the end of a box car, when he checked them, looked north 100 feet, which was as far as he could see, without seeing or hearing the approaching train, and then started forward, and, when he had passed the west side of the car, looked north, and saw the train approaching at 45 or 50 miles an hour, and instantly endeavored to stop his horses, then 10 feet from defendant's main track,-does not show contributory negligence.

On rehearing. Motion denied.

For prior report, see 37 N. E. Rep. 150.

HACKNEY, C. J. Again the appellant urges the proposition that Burton was guilty of contributory negligence upon the facts found by the jury. A decision of the question presented depends upon the construction of the finding, rather than upon any differences between counsel and the court as to the law of contributory negligence. The finding is that from which we quoted first in the original opinion. It was found that the view of and hearing of an ap

1 Rev. St. 1881, § 2945 (Rev. St. 1894, § 3365), provides that, in all sales of real estate by an infant, a condition precedent to his right to disaffirm such a sale shall be the restoration to the purchaser of the consideration therefor, if the purchaser, acting in good faith, relied upon false representations by the infant that he was of age, and had good reason to believe such representations to be true.

*

proaching train were cut off from Burton for 375 feet before reaching the railway tracks; that he proceeded slowly until his horses passed to the end of the box car, when he checked them, leaned forward to get a view to the north, unobstructed by the car, and, not seeing or hearing the approaching train, and being unable to see more than 100 feet up the main track, he started forward, "and when he had passed the west side of the car, * he looked north and saw the * train approaching * at forty-five to fifty miles an hour, when he instantly pulled vigorously upon his lines, and endeavored to stop his horses, that were by that time ten feet from defendant's main track, but that his team had by this time discovered the said approaching train, and become greatly frightened and unmanageable." Then follows his effort to keep the team from the main track. In this connection we restate the fact found that the box car stood 34 feet and 9 inches from the main track. Counsel for the appellant endeavored to maintain that under the facts stated Burton proceeded 11 feet and 9 inches from the car before again looking north, allowing 10 feet from the horses to the main track and 13 feet from the team and vehicle back to Burton. So construing the facts, it is claimed that it was negligence to proceed 11 feet and 9 inches in plain view of the train without looking to see if it was ap proaching. With this construction of the facts we did not, and do not now, agree. The language of the finding is not that "when" he had passed the car, and his horses had gone to within ten feet of the main track, he looked, and then pulled upon his lines. The sense of the language of the finding is that "as soon as" he had passed he looked, or "just after the moment" of passing he looked, or he passed the car, "at which time" he looked. The quoted words are definitions of the word "when" as given by the Century Dictionary. and sustained by Webster's International Dictionary (Ed. 1893). When he had passed the car and had looked, and when he had pulled upon the lines and endeavored to stop the horses, it was then that the horses were "ten feet from defendant's main track." If we are correct in this construction of the finding, it showed diligence, and not contributory negligence, on the part of Burton. The petition is overruled.

against them and their heirs.

cree.

Appeal from circuit court, Porter county; J. H. Gillett, Judge.

Action by Robert S. Disney against Charles B. Shedd and others to quiet title to certain real property. Plaintiff had judgment, and defendant Shedd appeals. Affirmed.

W. E. Pinney, for appellant. A. D. Bartholomew, for appellees.

COFFEY, J. This action was commenced in the Porter circuit court by the appellee Disney against the appellant, Shedd, and others, to quiet title to the land described in the complaint. Shedd, in addition to filing an answer consisting of the general denial, filed a cross complaint, in which he sought, among other relief, to quiet title in himself to the same land. A trial of the cause by the court resulted in a special finding of the facts proven on the trial, with the court's conclusions of law thereon, upon which a decree was entered in favor of the appellee Disney. The assignment of error calls in question the correctness of the court's conclusions of law on the facts found. The facts in the cause, necessary to a decision of the questions discussed by counsel, are as follows: Both the appellant, Shedd, and the appellee Disney claim title to the land in dispute under John Peters and Edwin Hoxie, who acquired it, as tenants in common, by patent from the state of Indiana. On the 12th day of February, 1878, James G. Smith purchased the land at a tax sale made to satisfy delinquent taxes, and on the 19th day of February, 1880, he received a tax deed from the auditor of Porter county. He subsequently transferred his interest to Frank H. Morrical, who instituted suit in the Porter circuit court to quiet the title; but the court found that the deed to Smith was insufficient to convey the title, and he thereupon took a decree to sell the land for the payment of the amount found due him. The land was sold on this decree, and bid in by Morrical, but the description in both the decree and order of sale was erroneous. On the 1st day of August, 1883, Morrical conveyed the land, by warranty deed, to J. S. McKinney and E. S. Bean; and, on the 25th day of December thereafter, McKinney conveyed the undivided half of it to Bean. On the 28th day of April, 1891, Emma S. Bean instituted suit in the Porter circuit court, against Peters and Hoxie and others, to quiet her title, in which she was successful, and the court entered a

the land, as The court also appointed a commissioner to execute a deed conveying to her the title of Peters and Hoxie, which was done. On the 25th day of September, 1891, Bean conveyed the land to the appellee Robert S. Disney by warranty deed, who platted the same as town lots, and has sold and conveyed a large number of such lots to purchasers. On the 11th day of February, 1889, the appellant, Charles B. Shedd, purchased this land at tax sale for the sum of $6.811⁄2, and on the 25th day of June, 1891, he received a tax deed from the auditor of Porter county. On the 15th day of May, 1890, he paid taxes on the land to the amount of $2.62. Prior to the commencement of this action, Emma S. Bean tendered to the appellant $17 in redemption from his purchase at tax sale, which was a sum in excess of the amount due him, if she was entitled to redeem. The tender was kept good by bringing the money into court for the use of the appellant. All of the parties to this controversy are now, and always have been, nonresidents of the state of Indiana. The appellant did not file the agreement required by section 8603, Rev. St. 1894; but, without such agreement, the treasurer received his bid, and struck off and sold the land to him.

It will be seen from an examination of the above statement of facts that the appellee Robert S. Disney makes a perfect chain of title from the state of Indiana to himself. Prior to the action by Mrs. Bean against Peters and Hoxie to quiet title, her title would seem to have been imperfect, unless the tax sale to Smith was valid, but by that action she obtained the evidence of the fact that she held their title. Neither Peters nor Hoxie can assert any claim to this land, as against Mrs. Bean, while the decree in her favor against them remains in force.

The appellant claims that this decree is void as to him, because he was not made a party to that suit, but we do not think he was a necessary party. At the time that suit was instituted he had not yet received a tax deed, but, if he had, that suit involved a controversy between Mrs. Bean, on one side, and Peters and Hoxie, on the other, in which the appellant had no interest. case, in its legal aspect, is not different from what it would have been, had Peters and Hoxie executed a conveyance to Mrs. Bean, instead of permitting her to take a decree quieting title.

The

This brings us to the question as to whether the appellant, by his purchase at a tax sale, acquired a title to this land, and thereby divested the title of the appellee. It has been repeatedly held in this state that whoever asserts a title through a tax deed takes upon himself the burden of showing that every step required by law to be taken, from the listing of the land for taxation to the delivery of the deed, has been regularly taken. Gavin

We think the answer of Laura Shaul was wholly insufficient to bar the right of action set up in the complaint. Section 2945, Rev. St. 1881 (Rev. St. 1894, § 3365),1 has no application to the case, inasmuch as the record discloses the fact that the appellees were minors under the age of 21 years. In dealing with them with full knowledge that they were under legal disabilities, and could not bind themselves by contract, she was bound to know that they might at any time rescind such attempted contract without restoring what they had received. Nor does section 632, Rev. St. 1881 (section 644, Rev. St. 1894), apply to the case, as this was an action to review a judgment, and not an appeal to the supreme court.

Numerous motions were made by the appellant, after the finding and judgment entered by court, having in view a modification of the decree entered in this case; but, as the questions presented by these motions are the same as those we have discussed, we deem it unnecessary to extend this opinion by setting them out. There is no error in the record for which the judgment should be reversed, and the same is therefore affirmed.

PITTSBURG, C., C. & ST. L. RY. CO. v. BURTON.

(Supreme Court of Indiana. Nov. 16, 1894.) INJURY AT RAILROAD CROSSING-CONTRIBUTORY

NEGLIGENCE.

A finding that plaintiff's view and hearing of an approaching train were cut off 375 feet before reaching the tracks; that he proceeded slowly until his horses passed to the end of a box car, when he checked them, looked north 100 feet, which was as far as he could see, without seeing or hearing the approaching train, and then started forward, and, when he had passed the west side of the car, looked north, and saw the train approaching at 45 or 50 miles an hour, and instantly endeavored to stop his horses, then 10 feet from defendant's main track, does not show contributory negligence.

On rehearing. Motion denied.

For prior report, see 37 N. E. Rep. 150.

HACKNEY, C. J. Again the appellant urges the proposition that Burton was guilty of contributory negligence upon the facts found by the jury. A decision of the question presented depends upon the construction of the finding, rather than upon any differences between counsel and the court as to the law of contributory negligence. The finding is that from which we quoted first in the original opinion. It was found that the view of and hearing of an ap

1 Rev. St. 1881, § 2945 (Rev. St. 1894, § 3365), provides that, in all sales of real estate by an infant, a condition precedent to his right to disaffirm such a sale shall be the restoration to the purchaser of the consideration therefor, if the purchaser, acting in good faith, relied upon false representations by the infant that he was of age, and had good reason to believe such representations to be true.

proaching train were cut off from Burton for 375 feet before reaching the railway tracks; that he proceeded slowly until his horses passed to the end of the box car, when he checked them, leaned forward to get a view to the north, unobstructed by the car, and, not seeing or hearing the approaching train, and being unable to see more than 100 feet up the main track, he started forward, "and when he had passed the west side of the car, he looked north and saw the * train approach

ing * * at forty-five to fifty miles an

hour, * when he instantly pulled vigorously upon his lines, and endeavored to stop his horses, that were by that time ten feet from defendant's main track, but that his team had by this time discovered the said approaching train, and become greatly frightened and unmanageable." Then follows his effort to keep the team from the main track. In this connection we restate the fact found that the box car stood 34 feet and 9 inches from the main track. Counsel for the appellant endeav ored to maintain that under the facts stated Burton proceeded 11 feet and 9 inches from the car before again looking north, allowing 10 feet from the horses to the main track and 13 feet from the team and vehicle back to Burton. So construing the facts, it is claimed that it was negligence to proceed 11 feet and 9 inches in plain view of the train without looking to see if it was approaching. With this construction of the facts we did not, and do not now, agree. The language of the finding is not that "when" he had passed the car, and his horses had gone to within ten feet of the main track, he looked, and then pulled upon his lines. The sense of the language of the finding is that "as soon as" he had passed he looked, or "just after the moment" of passing he looked, or he passed the car, "at which time" he looked. The quoted words are definitions of the word "when" as given by the Century Dictionary. and sustained by Webster's International Dictionary (Ed. 1893). When he had passed the car and had looked, and when he had pulled upon the lines and endeavored to stop the horses, it was then that the horses were "ten feet from defendant's main track." If we are correct in this construction of the finding, it showed diligence, and not contributory negligence, on the part of Burton. The petition is overruled.