Gilchrist v. Gough et al.

In section 3 of " An act to provide for the election, and prescribing certain duties of recorder," approved May 31st, 1852, it is provided, that the recorder shall make a complete index of all the instruments recorded, for each volume, which should contain "The name of each grantor, promiser or covenanter, in alphabetical order referring to the proper grantee, promisee or covenantee; and also the name of each grantee, promisee or covenantee, in the same order, referring to the proper grantor, promiser or covenanter." 1 R. S. 1876, p. 759.

It will be seen from these provisions, that the recorder is not required by law to note in any indexes the amount of any mortgage recorded in his office. Therefore, it seems to us, that a memorandum of the amount of a mortgage, made by a recorder in any index of his office, is not notice, actual or constructive, of any matter which other persons are bound to take notice of. The object of an index to records is to point out the book and page in which a particular record may be found; and if a person should find that there was a discrepancy or variance between the index to the record and the record itself, as to a matter which the record was obliged to contain, and the index was not required to contain, we think that he might well and reasonably conclude that the record was right and the index was wrong, without any further inquiry. Such discrepancy or variance would certainly not be sufficient to charge a subsequent mortgagee in good faith and for a valuable consideration, with notice that the index was right and the record was wrong, or of the true amount of the mortgage.

What we have hitherto said in this opinion disposes of all the errors assigned by the appellant, which call in question the decisions of the circuit court on the pleadings. There was no error in any of those decisions. The fact, that the appellant's mortgage was entitled to priority over

Gilchrist v. Gough et al.

the mortgages of the appellee Hoffman, to the extent of the amount shown in and by the record of the appellant's mortgage, was a fact recognized by said appellee in his pleadings, and acted upon by the court in its decisions, both in overruling the appellant's demurrers to the appellee's answers and cross complaint, and in sustaining appellee's demurrers to the appellant's replies.

We think it is unnecessary for us to set out even the substance of any of these pleadings. They were intended to, and did, fairly present the precise questions which have been fully considered in this opinion.

Under the alleged error of the circuit court in overruling the motion for a new trial, the counsel of the appellee Hoffman have briefly discussed in argument several alleged errors of law occurring at the trial, in the introduction of evidence and in giving and refusing to give certain instructions to the jury trying the cause. We have carefully examined and considered each and all of these alleged errors of law, and have been led to the conclusion, that none of them are well assigned, or available to the appellant for a reversal of the judgment below.

After a careful and thorough examination of the record of this action, and upon full consideration of the able and exhaustive briefs of the learned counsel of the respective parties, it has seemed clear to us," that the merits of the cause have been fairly tried and determined in the court below."

In such a case, the statute forbids that the "judgment be stayed or reversed, in whole or in part." 2 R. S. 1876, p. 246, sec. 580.

The judgment is affirmed, at the costs of the appellant. Petition for a rehearing overruled.

63 592 128 482

129 302

Jeffries v. Rowe.

JEFFRIES v. Rowe.

TOWNSHIP TRUSTEE-Eligibility to Office of.-Construction of Statutes.—
Township Elections.-The act of March 12th, 1877,"limiting the eligibility
to the office of township trustee," Acts 1877, Spec. Sess., p. 79, is not in
conflict with the act of March 3d, 1877, providing "for township elec
tions," Acts 1877, Reg. Sess., p. 58; and both acts should be construed as
though the former act were an additional section of the latter.
SAME.-Contested Election. - A township trustee who had held the office of
township trustee for two consecutive terms immediately preceding the first
Monday of April, 1878, was not eligible to re-election on that day, though
his last term had not continued for the two years for which he had been
elected.

SAME. The term "hereafter," as used in said act of March 12th, 1877, refers
to and means the time after the taking effect of such act.

From the Posey Circuit Court.

A. P. Hovey, G. V. Menzies and E. M. Spenser, for appel

lant.

W. P. Edson, H. C. Pitcher and M. W. Pearse, for appellee. BIDDLE, J.-Proceedings to contest an election to the office of township trustee.

The appellant, who is contestor, filed his written statement against the appellee, who is contestee, before the county auditor, stating the grounds of contest.

After alleging the facts showing his eligibility to hold the office, he avers, that, at the April election, in the year 1878, the contestor and contestee were opposing candidates for the office of township trustee for Black township, in said county; that the contestee at said election received five hundred and ninety-one votes, and the contestor received five hundred and eighty votes; that the inspectors of said election declared the contestee duly elected; that the contestee at the time was ineligible to hold said office, for the reason that he had held the said office in said county and State during two consecutive terms, before the 1st day of April, 1878; that said contestee was duly elected trustee of said township on the 8th day of October, 1872, and was duly quali

Jeffries v. Rowe.

fied as such trustee, under said election; that said contestee was duly elected to the same office on the 13th day of Ocber, 1874, and was duly qualified accordingly; that said contestee was again duly elected to said office on the 10th day of October, 1876, and was duly qualified; and that said contestee, since the 21st day of October, 1872, has held, enjoyed and exercised the duties of said office of trustee of said Black township, up to the filing of this statement, and still holds and claims said office by virtue of said election so held on the 1st day of April, 1878.

Prayer that the contestor be declared duly elected to said office, and that the same be certified accordingly.

Before the board of commissioners, the contestee filed his demurrer to the statement of the contestor, upon the ground of the insufficiency of the facts stated to constitute a cause of contest, which demurrer was overruled. The contestee declined to answer further, and the board of commissioners adjudged that the contestor was duly elected to said office, and was entitled to his certificate of election as such trustee.

From this judgment the contestee appealed to the circuit court, wherein the demurrer was sustained, and the contestee adjudged duly elected to said office, and that a certificate of his election be issued accordingly; to all of which the contestor excepted, and appealed to this court.

The eligibility of the contestee to hold the office in contest depends on the construction of the acts of March 3d, 1877, and March 12th, 1877. Acts 1877, Reg. Sess., p. 58, and Spec. Sess., p. 79.

Section 1 of the act of March 12th is in the following words:

"That any person who has held the office of trustee of any township in this State for two terms consecutively, at the date of the next general election in October, 1878, shall not be eligible to said office for the next ensuing VOL. LXIII.—38

Jeffries v Rowe.

term, and that hereafter no person shall be eligible to the office of township trustee, more than four years in any period of six years." Acts 1877, Spec. Sess., p. 79.

Township trustees are not created by the constitution. They are the creatures of the law. Constitution, art. 6, sec. 3.

Offices created by the Legislature may be abolished by the Legislature. The power that creates can destroy. The creator is greater than the creature. The term of an office may be shortened, the duties of the office increased, and the compensation lessened, by the legislative will. Gilbert v. The Board of Commissioners, etc., 8 Blackf. 81; Ellis v. The State, 4 Ind. 1; Walker v. Dunham, 17 Ind. 483; Walker v. Peelle, 18 Ind. 264.

By these principles and authorities, the question before us must be tested.

Statutes are generally to be construed prospectively, but they may have a retrospective effect, when the legislation plainly intends they should, and no vested rights are disturbed thereby.

But the statute before us has no retrospective effect, when applied to the agreed statement of facts. It acts. upon facts in existence at the time it went into effect. The plain meaning of it is, that any person who had, at the date of the general election in October, 1878, held the office of township trustee two consecutive terms, immediately before, should not be eligible to hold the office the next ensuing term. The fact, that the time of holding the election for township trustees had been changed from the month of October to the month of April, can make no difference; and the fact, that the contestee was eligible to hold the office at the time he was elected, will not authorize him to hold it after he became ineligible, although it shortened his official term. Offices are neither grants nor contracts nor obligations which