MONKS, J. Appellee brought this action against appellants on a note given for the unpaid purchase money of real estate, and to foreclose the lien on said real estate reserved in the deed conveying the same. The only error assigned, and not waived, is that the court erred in its conclusions of law. The part of the special finding necessary to the determination of the question presented is substantially as follows: On December

13, 1888, one Cosby conveyed to David J. Mackey and Edward T. Sullivan certain real estate in Posey county, Ind., for the sum of $6,500. In the deed a lien was reserved to secure the notes given for the unpaid purchase money. Mackey and Sullivan were partners engaged in buying land, and farming the same, in Posey county. Sullivan was the managing partner, Mackey being engaged in other enterprises. All the notes so given were paid off by Mackey & Sullivan, except the last one, for $1,000, which fell due March 1, 1892. After this note became due, it was placed in a bank at Evansville for collection; and on August 27, 1892, the firm not having the money to pay the same, said Sullivan paid the interest on said note to said date, and, on behalf of said firm of Mackey & Sullivan, applied to appellee for a loan of $1,000, to take up said note, agreeing that appellee should hold said note uncanceled, and should have and hold the lien to secure the payment of said note that was held by said Cosby; and appellee, in consideration of said promise and agreement, gave said Sullivan a draft on a bank at Mt. Vernon, Ind., for the sum of $1,000, payable to the firm of Mackey & Sullivan, which draft was on the same day (August 27, 1892) indorsed in the firm name of Mackey & Sullivan to the bank in Evansville holding said note for collection; and the note taken up by said. Sullivan with the funds of appellee, and for her use, was on the same day delivered to appellee under said agreement. Before delivering said note to appellee, the following was entered on the back of said note: "This note was taken up for Mackey and Sullivan by Olive L. Hankins August 27, 1892. Mackey and Sullivan paid the interest in full to said date, and we agree to pay said Hankins seven per cent. per annum interest, until paid (interest payable semiannually), on her $1,000.00. Mackey and Sullivan, per E. L. Sullivan." Cosby, the payee of said note, was not a party to said agreement; Mackey was not present, and knew nothing of the transaction; and Sullivan had no authority to make the same, except such as he had as the managing partner of the business of said firm; and the real estate for which the note was given was the property of the firm. On November 16, 1893, Mackey & Sullivan, being largely involved and in failing circumstances, executed to appellant Huston a mortgage on the real estate described, for which said note was given, and on other lands in Posey county, two of which were payable to William

P. Warford, to secure certain notes, and to save said Huston harmless by reason of his being security thereon. The notes mentioned in said mortgage were all dated in June and July, 1893. At the time of the execution of said mortgage to Huston, on November 16, 1893, neither he nor Warford had any notice of any lien on said real estate, except that given by the record of the deed from Cosby to Mackey & Sullivan; and they had no actual knowledge that appellee held said note, or that the lien in favor of Cosby on said real estate had been transferred to her; and said note is due and unpaid. The conclusions of law stated by the court were, in substance, that Sullivan, the managing partner of the firm of Mackey & Sullivan, had the legal right to make the contract referred to, with appellee, without first procuring the consent of his co-partner, Mackey; that the oral agreement of Sullivan on behalf of said firm was a valid and binding agreement, and had the effect to transfer said note, together with the lien securing the same, to appellee; that the appellants Warford and Huston took their mortgage charged with notice of the prior lien upon said real estate, to the extent of the unpaid note described in said deed; that appellee's lien was prior and superior to that of appellants, for the amount of the face of the note, with 6 per cent. interest thereon,-that being the rate of interest provided in the note. Judgment was rendered accordingly.

Appellants insist that the note, and the lien securing the same, could not be transferred to appellee, without the payee was a party to the agreement, and that, under the facts found, the note was paid, and the lien securing the same was thereby satisfied; that appellee's only relief is limited to a recovery against Mackey & Sullivan. Appellee contends that as she took up said note on agreement with the makers of the note that said note, and the lien securing the same, should be held by her as security therefor, she is subrogated to all the rights of Cosby, provid ed that the rights of innocent third parties have not intervened.

A vendor's lien upon real estate, for the unpaid purchase money, is created by implication of law; but, when a lien for the purchase money is expressly reserved by a vendor in his deed of conveyance, a lien is created by contract, and not by implication of law. It is a contract that the land shall be subject to a lien until the purchase money is paid, and is really a mortgage. Bever v. Bever, 144 Ind. 157, 162, 163, 41 N. E. 944, and authorities cited; Sample v. Cochrane, 84 Ind. 594; Jones, Mortg. §§ 228, 229; 28 Am. & Eng. Enc. Law, 184, 193; 3 Pom. Eq. Jur. §§ 1257, 1258. For the purposes of subrogation, there is no difference between a vendor's lien expressly reserved in the deed, and a mortgage given by the vendor to secure the purchase money. Dowdy v. Blake, 50 Ark. 205, 6 S. W. 897; 28 Am. & Eng.

Enc. Law, 192. The right of subrogation is not founded upon contract, express or implied, but upon principles of equity and justice, and includes every instance in which one party, not a mere volunteer, pays a debt for another, primarily liable, and which in good conscience should have been paid by the latter. Davis v. Schlemmer (this term) 50 N. E. 373, and cases cited. A person who may be compelled to pay a debt, or the protection of whose property or interest requires that he pay it, is not a mere volunteer. Davis v. Schlemmer, supra, and cases cited. Nor is one who pays a debt, or advances money for the purpose, at the request of the debtor, a mere volunteer. Shattuck v. Cox, 128 Ind. 293, 27 N. E. 609; Reeves v. Isenhour, 59 Ind. 478; Shirts v. Irons, 28 Ind. 458, 461; Woodford v. Leavenworth, 14 Ind. 311, 313; Trible v. Nichols, 53 Ark. 271, 13 S. W. 796; Gans v. Thieme, 93 N. Y. 225; 24 Am. & Eng. Enc. Law, 281, 294, 296; 2 Enc. Pl. & Prac. 1012; 3 Pom. Eq. Jur. § 1212; Harris, Subr. § 792. In 3 Pom. Eq. Jur. § 1212, it is said: "The doctrine is also justly extended, by analogy, to one who, having no previous interest, and being under no obligation, pays off the mortgage, or advances money for its payment, at the instance of a debtor party, and for his benefit. Such person is in no true sense a mere stranger and volunteer." The rule was thus stated in Wilson v. Brown, 13 N. J. Eq. 277: "To entitle a party who pays the debt of another to the rights of the creditor, by subrogation, the debt must be paid at the instance of the debtor, or the person paying it must be liable, as surety or otherwise, for its payment." In Railway Co. v. Wortendyke, 27 N. J. Eq. 658, the court said: "It is not sufficient that a person paying the debt of another should do so merely with the understanding on his part that he should be subrogated to the rights of the creditor. Conventional subrogation can only result from an express agreement with the debtor or creditor." The rule as stated in the foregoing New Jersey cases is supported by the following authorities; some declaring the rule to be as stated in the first, and others as stated in the last, case: Gore v. Brian (N. J. Ch.) 35 Atl. 897; Shinn v. Budd, 14 N. J. Eq. 234; Association v. Thompson, 32 N. J. Eq. 133; Hoy v. Bramhall, 19 N. J. Eq. 563; Sandford v. McLean, 3 Paige, 116, 122; White v. Knapp, 8 Paige, 173; Swope v. Leffingwell, 72 Mo. 348, 360; Bank v. Cushing, 53 Vt. 321, 326; Stebbins v. Willard, Id. 665, 667; Payne v. Hathaway, 3 Vt. 212; Good v. Golden, 73 Miss. 91, 94, 95, 19 South. 100; Trust Co. v. Peters, 72 Miss. 1058, 1070, 1071, 18 South. 497; Fievel v. Zuber, 67 Tex. 275, 280, 3 S. W. 273; Dillon v. Kauffman, 58 Tex. 696; Oury v. Saunders, 77 Tex. 278, 280, 13 S. W. 1030; Whiteselle v. Loan Agency (Tex. Civ. App.) 27 S. W. 309, 314; Reimler v. Pfingsten (Md.) 28 Atl. 24; Mitchell v. Butt, 45 Ga. 162; Fuller v. Hollis, 57 Ala. 435; Heuser v. Sharman, 89

Iowa, 355, 56 N. W. 525; Trible v. Nichols, supra; Owen v. Cook, 3 Tenn. Ch. 78; Bank v. Wert, 26 Fed. 294; 1 White & T. Lead. Cas. Eq. 875; 2 White & T. Lead. Cas. Eq. 288; 24 Am. & Eng. Enc. Law, pp. 281, 290– 296; 1 Jones, Mortg. §§ 1091, 1092; Harris, Subr. § 792; Sheld. Subr. 88 247, 248; 2 Beach, Mod. Eq. Jur. § 806.

In Gans v. Thieme, supra, the court said: "A volunteer cannot acquire either an equitable lien, or the right of subrogation; but one who, at the request of another, advances his money to redeem, or even to pay off, asecurity in which that other has an interest. or to the discharge of which he is bound, is not of that character; and, in the absence of an express agreement, one would be implied, if necessary, that it shall subsist for his use, and it will be so enforced. But the doctrine of substitution may be applied, although there is no contract, express or implied. It is said to rest on the basis of mere equity and benevolence. Cheesebrough v. Millard, 1 Johns. Ch. 409; 1 Story, Eq. Jur. § 493. In any aspect of the case the plaintiffs have paid a debt which the testator ought to have paid, and a mortgage to which the land was subject, under the belief, authorized by the words and acts of the legal representatives of the deceased, that they were to have a valid security upon it. It has not been given to them, and it will subserve the purposes of justice, and violate no rule of law, to subrogate them to the lien of the mortgage, as against any of the parties to this action, since their title was affected by it; and no wrong can be done to either by putting the plaintiffs in the place of the original creditor." This doctrine is also supported by the cases which hold that when a third party, at the request of a debtor, loans the money to him to pay a debt secured by mortgage or other lien, under an agreement that he shall have a mortgage on the same real estate to secure him in such loan, and after the same is paid the debtor refuses to give the mortgage, or, if given, it proves invalid or ineffectual for any reason, or if there are intervening liens, of which the person making the loan or payment had no notice or knowledge, such person is entitled to be subrogated to the mortgage or other lien securing the debt paid. Thomp son v. Insurance Co., 139 Ind. 325, 346, 349, 38 N. E. 796, and cases cited; Johnson v. Barrett, 117 Ind. 551, 19 N. E. 199; Spaulding v. Harvey, 129 Ind. 106, 28 N. E. 323; Mortgage Co. v. Latham, SS Ind. SS; Sidener v. Pavey, 77 Ind. 241; Gans v. Thieme, supra; Baker v. Baker, 2 S. D. 261, 49 N. W. 1064; Debenture Co. v. Elsbree, 55 Kan. 562, 40 Pac. 906; Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453; Milholland v. Tiffany, 64 Md. 455, 2 Atl. S31; Insurance Co. v. Aspinall, 48 Mich. 238, 12 N. W. 214; Gilbert v. Gilbert, 39 Iowa, 657; Trust Co. v. Peters, 72 Miss. 1058, 18 South. 497; Ogden v. Totten (Ky.) 34 S. W. 1081.

The lien reserved in the deed conveying the real estate to Mackey & Sullivan was notice to appellants Huston and Warford of the rights of appellee. Sample v. Cochran, 84 Ind. 594, 596. Besides, the special finding shows that the mortgage executed to appellant Huston to indemnify him as surety, and to secure the note payable to appellant Warford, was given to secure pre-existing debts and liabilities, and would not, therefore, cut off prior equities. Bank v. Judy, 146 Ind. 322, 330, 43 N. E. 259, and cases cited. Whatever rights, therefore, appellee has against Mackey & Sullivan, under the agreement with them, to enforce said lien, may be enforced against said appellants Huston and Warford. The special finding shows that the money was loaned to Mackey & Sullivan to take up said note under the express agreement, made with them, that appellee should hold the note uncanceled, and that the lien reserved in the deed should be kept alive to secure her. Under the authorities cited, it is clear that appellee is entitled to enforce said lien against appellants, the same as Cosby could have done if the same had not been paid to him. It is insisted that under the rule declared by this court in Binford v. Adams, 104 Ind. 41, 3 N. E. 753, appellee is not entitled to enforce said lien. In that case Walker executed a note to Gant, and secured it by a mortgage on his real estate. Gant sold the note and mortgage to Boyd, and indorsed the note to him. Afterwards Gant requested Walker to pay the note, and Walker made arrangements with Binford to pay the note, which Binford did. Boyd marked the note "Paid," on his book, and delivered the note to Binford. Gant died, and Binford sued Gant's administrator to recover upon Gant's indorsement of the note; and this court held that there could be no recovery on the indorsement. There is a wide difference between that case and this. If the action in that case had been brought to foreclose the mortgage executed by Walker to secure the note, a different question would have been presented. If Binford was entitled to subrogation under the facts of that case, it was only to foreclose the mortgage against Walker, the maker of the note, at whose request he had paid the note. As between Gant and Walker, the latter was primarily liable on said note; and, even if Binford paid the note under an agreement with Walker that he should hold the note and mortgage to secure him in such payment, this would not have given him any right to maintain an action against Gant on his indorsement. Walker's agreement could only continue the note and mortgage in force as against himself and the mortgaged real estate. It was properly held, therefore, that, so far as Gant was concerned, Binford was a mere volunteer, and acquired no rights against him; and, as to Gant and Boyd, the note was paid and satisfied.

1. Rulings of the court below in striking out portions of the pleadings cannot be reviewed when it does not affirmatively appear from the record as shown by the bill of exceptions what the portions were.

2. An allegation in a complaint not denied will be taken to be admitted.

3. A judgment of ouster in an action against a township trustee to vacate his office does not affect the validity of his acts as a de facto officer during the pendency of the action.

4. An allegation that a township trustee had vacated his office because he had accepted the office of postmaster, under the state constitution, is insufficient where it fails also to allege that his salary as such postmaster exceeded $90 per year, the limit prescribed by the constitution.

5. The title to office of one who has been elected, inducted into office, and is acting de facto as township trustee, cannot be questioned in a collateral proceeding.

6. Burns' Rev. St. §§ 1145, 1146 (Horner's Rev. St. 1897, §§ 1131, 1132), expressly authorizes an information in the name of the state to be filed by any person claiming an interest in any public office against one usurping the same. Held to authorize the filing of an information of quo warranto in the name of the state against one alleged to be usurping the office of county superintendent rightfully belonging to the relator.

7. Pleading that one was eligible to any office is sufficient, without alleging the qualifications constituting eligibility.

Appeal from circuit court, Jay county; John W. Headington, Judge.

Quo warranto by the state, on the relation of John E. Bishop, against Louis Crowe. Judgment for the defendant, and relator appeals. Reversed.

John M. Smith and Frank H. Snyder, for appellant. D. T. Taylor, for appellee.

MCCABE, J. This was a suit by information in the nature of a quo warranto, filed by the relator, John E. Bishop, claiming to be the rightful county superintendent of Jay county, and charging the appellee with usurping and unlawfully intruding into said office, and calling on him to show by what authority he does so. The circuit court sustained appellee's motion to strike out certain portions of the information, and overruled appellant's demurrer to the second paragraph of appellee's answer. The court also sustained appellee's motion to strike out the second paragraph of appellant's reply, and sustained appellee's demurrer to the third and fourth paragraphs of said reply. The only error assigned is upon these rulings. On sustaining the demurrer to the third and fourth paragraphs of appellant's reply, he refused to amend or plead further, and judgment

was rendered against him on demurrer for want of a reply.

The action of the circuit court upon the motion to strike out certain portions of the information is not so presented by the record as to enable us to determine the correctness of that action. The bill of exceptions by which it is sought to incorporate into the record the portion of the information stricken out contains the motion, reading as follows: "The said defendant moves the court to strike out and from the plaintiff's amended complaint all after the word 'meeting' in line 17, page 2, to and including the word 'day,' line 24, page 20, for the following reasons;" and then follows a statement of certain reasons for the motion. On turning to page 2, line 17, we find no such word as "meeting." and on turning to page 20 we find no such word in line 24 thereof as "day." No doubt that was a correct designation of the pages and lines and the words therein between which, as it appeared in the original complaint, the language sought to be stricken out would be found. But for us to find the language now, since the paging and lines have all been changed by incorporation into the transcript, would be the merest guesswork. Moreover, the language stricken out is not in the record, because. it is not in the bill of exceptions. The presumption is that all that appears in the information was left there by the court, unless the contrary is made to appear affirmatively by the record; and the contrary does not so appear. State v. Halter (Ind. Sup.) 49 N. E. 7; Dudley v. Pigg (Ind. Sup.) 48 N. E. 642, and cases there cited. Besides, we judicially know that the pages and lines referred to in the bill of exceptions are not the pages and lines of the transcript, because at the time the bill of exceptions was made there was no transcript. Bement v. May, 135 Ind., at page 670, 34 N. E., at page 327, and 35 N. E., at page 387. The question, therefore, as to the correctness of the ruling on the motion to strike out portions of the information is not presented by the record.

The record is in the same condition as to the action of the court in striking out the second paragraph of appellant's reply. The bill of exceptions does not incorporate or contain any part of it, and, as it was all stricken out by the court, it is not in the record, though what purports to be such reply has been copied into the transcript by the clerk. The clerk had no authority to transcribe it into the transcript. The question, therefore, as to whether the court properly struck it out or not, cannot be determined without an examination of the pleading; and that examination cannot be made by us unless such reply is properly incorporated in a bill of exceptions duly authenticated as a part of the record. The information shows that there are 12 townships in Jay county, and that pursuant to the statute (Burns' Rev. St. 1894, § 5900; Rev. St. 1881, § 4424; Horner's

Rev. St. 1897, § 4424) the township trustees of all the townships met at the auditor's office in said county on the first Monday of June, 1897, being the 7th day of June, 1897, for the purpose of electing a county superintendent. It names each trustee, giving the name of the township of which he is the trustee, and names P. L. Bishop as the trustee of Bearcreek township in said county. It shows that these trustees, 12 in number, at that meeting, balloted for county superintendent 130 times, and that said trustee P. L. Bishop participated throughout said meeting, and voted, as a township trustee, for county superintendent, without question of his right to so act, and with his vote there were 12 trustees voting throughout; that no one having received a majority of the votes, but the appellee having received on the last ballot 6 votes, the meeting adjourned late in the afternoon, to meet again at 8 in the evening of said day. At the meeting at 8 o'clock it is alleged that the 6 trustees voting for appellee, which number did not include said Bishop, met at the auditor's office again, and declared that appellee had received a majority of all the votes cast by trustees legally entitled to vote, and that he was therefore legally elected; and it is alleged that upon this election, so declared, appellee is basing his claim to the office. The second paragraph of the answer is in confession and attempted avoidance of the informa tion. It admits that there were 12 townships in said county, and that said Peter L. Bishop was duly elected trustee of Bearcreek township November 6, 1894, and that he gave bond as such, qualified, and entered upon the discharge of the duties of his said office; that afterwards, to wit, on October 9, 1896. the said Peter L. Bishop was duly appointed postmaster by the postmaster general of the United States for the post office at the town of Bryant, located in said Bearcreek township, in said county; that he filed his bond to the approval of the proper authority, and took the oath of office as such postmaster, and entered upon the discharge of the duties of such postmaster at said town of Bryant, and thereafter continued to discharge the duties thereto pertaining up to and until August 16, 1897; that by the acceptance of said office of postmaster said Peter L. Bishop abandoned and impliedly resigned his said office of township trustee of said Bearcreek township, and that the same became then and there vacant, and remained so vacant; that Daniel E. Griner, the prosecuting attorney, on May 25, 1897, began a suit on his own relation, in the name of the state, in the Jay circuit court, by information against said Peter L. Bishop, to have said office of township trustee declared vacant for the reason of the acceptance of the office of postmaster, as aforesaid; that afterwards, on June 10, 1897, such proceedings were had on said information that judgment was rendered declaring said office of township trustee of said

Bearcreek township vacant, and that the same had been so vacant continuously since from October 9, 1896, when said Bishop accepted the said office of postmaster; that while said action, so commenced by information, was pending in said court, to wit, on June 7, 1897, the township trustees of 11 of the townships, naming them,-Bearcreek not being among them,-met at the auditor's office of Jay county for the purpose of electing a county superintendent for said county; that said Peter L. Bishop was present at said meeting, and pretended to represent said Bearcreek township as township trustee, but defendant avers that he was not then and there the trustee of said township, and had not been since October 9, 1896, when he accepted said office of postmaster, and he had no legal right to participate in said meeting of said trustees, or to vote for county superintendent, and hence there were at said meeting 11 trustees only who were legally entitled to cast a vote then and there for the election of county superintendent; and the answer sets out the names of the 11 trustees and the name of the township that each represents. The answer further avers that the trustees began voting for county superintendent by ballot, and continued balloting without election until late that night, when an adjournment was had until June 8, 1897; that on said last-named day said trustees reconvened, and continued voting for county superintendent until they had cast 130 ballots; that on the 130th ballot the defendant received the votes of 6 named trustees, which was a majority of the 11, trustees who were then and there present having a legal right to vote, and the defendant was thereupon, on motion duly seconded, declared duly elected as such county superintendent; that on the 8th day of June, 1897, this defendant was, and had been for more than one year before said day, a resident, inhabitant, and qualified voter of Jay county, and eligible to the office of county superintendent. This answer is a complete confession that Peter L. Bishop had been duly elected trustee of Bearcreek township, that he duly qualified, and entered into and took possession of the office, and had been engaged in the discharge of its duties ever since up till the alleged judgment vacating the office, on June 10, 1897, which was after the alleged election of county superintendent, unless appellant's acceptance of the office of postmaster operated to vacate his office of township trustee. The answer, by not denying the allegation in the complaint that Bishop was acting as trustee, and voted as such trustee for county superintendent throughout said meeting of said trustees, admits that he did so act. The judgment alleged to have been rendered vacating the office of township trustee of Bearcreek township, and ousting said Bishop, as already ob served, was rendered after the attempted election of county superintendent, and therefore that judgment did not affect the validity

or legality of that election. In other words, It leaves us to inquire into the validity of that election as if the judgment of ouster had nev er been rendered. That being so, there is nothing alleged in the answer to support the contention of appellee that there were only 11 votes cast at that meeting, except the allegation that Bishop, after his election as trustee, had accepted another lucrative office, namely, postmaster; but it does not allege that the salary of said postmaster exceeded $90 a year. The judgment of ouster in the case mentioned was reversed in this court at this term, because the information failed to allege that such salary exceeded $90 a year, holding that, if it did not exceed that sum,as this court presumed it did not,-it was not an incompatible office with that of township trustee under the state constitution; and hence its acceptance did not operate to vacate the office of township trustee. Bishop v. State (Ind. Sup.) 48 N. E. 1038. Therefore, the second paragraph of answer, failing to allege that the salary of the office of postmaster, so accepted by appellant, exceeded $90 a year, failed to show that he had vacated the office of trustee of Bearcreek township by the acceptance of an incompatible office. It results from this that said answer failed to show that there were only 11 trustees legally entitled to vote at said meeting, and leaves the appellee's claim to the office resting upon the fact that he got 6 votes out of a total vote of 12 trustees, and hence, without a majority of the votes of the 12 trustees, and therefore fails to show that he was legally elected.

Besides, the answer showing, as it does, that Bishop had been elected and inducted into the office of trustee of Bearcreek township, and was acting as such, at least de facto, his title to that office could not be questioned in this collateral way. Parker v. State, 133 Ind. 200, 32 N. E. 836, and 33 N. E. 119; Case v. State, 69 Ind. 46; Blackman v. State, 12 Ind. 556; Bansener v. Mace, 18 Ind. 27; Mowbray v. State, 88 Ind. 324; McGee v. State, 103 Ind. 444, 446, 447, 3 N. E. 139; Osborne v. State, 128 Ind. 129, 130, 27 N. E. 345, and cases there cited; Relender v. State (Ind. Sup.) 49 N. E. 30. and authorities there cited..

The ruling on the demurrer to the fourth paragraph of the reply presents this feature of the case more distinctly. That reply clearly shows not only that Bishop had been duly elected and inducted into the office of township trustee, but that he was still in and filling the office, and discharging all and singular the duties which the law requires such a trustee to do or perform, at the time of such meeting and attempted election; that he met with said trustees at said meeting as the trustee of Bearcreek township, and voted for county superintendent throughout the en tire balloting therefor. In Parker v. State, supra. this court said: "The rule that the acts of an officer de facto, performed before