then proceeded as follows: After th death or marriage of my wife, my will is that all my property, real as well as personal, shall be sold, and equally divided among my children.' Held, that the property vested in the children at the decease of testator. This decision, when applied to the case at bar, at once shows that in the real estate devised by the will John Wilson, Jr., had a vested interest, and, consequently, a leviable interest, which may be sold on execution." (120 Ind. 514) WASSON, County Treasurer, v. LAMB. receipts for taxes due from the bank, receives cred- Duncan, Smith & Wilson, for appellant. MITCHELL, J. This is an appeal from a judgment and decree of the Marion circuit court by which Wasson, as treasurer of Marion county, was perpetually enjoined from asserting or enforcing an alleged lien for taxes against certain real estate which had been transferred to Robert N. Lamb, as the assignee of Alfred and John C. S. Harrison. The question for decision arises upon the following facts: In April, 1884, Wasson was the treasurer of Marion county, and for some months prior thereto kept an account in Har We have examined the case of Rumsey v. Durham, supia. It is held in that case that, as the executor was directed to sell the property after the death of the widow, this was a conversion of the land into money, and that equity would so treat it; but whether personalty or realty can make no difference, if the estate, whatever it was, vested at the death of the testator in the devisees or legatees. In Simonds v. Harris, supra, it was held, where a will devised lands for life to the testator's wife, and that at her death the same be held, and the proceeds divided equally among his four children, that after the death of the testator, but during the life of the widow, the children held a vested interest in the land, which was subject to at-rison's Bank, a private banking-house owned tachment by their creditors; and that an attaching creditor could acquire such an interest as to entitle him to distribution in the proceeds of the estate when the land should be sold. It is well settled that a devise of the rents and profits of land is equivalent to a devise of the land itself, and will carry the legal as well as the beneficial interest therein, (Thompson v. Schenck, supra; Stewart v. Garnett, 3 Sim. 398; 2 Redf. Wills, 329; Gulick v. Gulick, 25 N. J. Eq. 324;) and the rule is the same where the devise is of the income, (Mannox v. Greener, 14 L. R. Eq. 456; Thompson v. Schenck, supra; Redf. Wills, supra; Commons v. Commons, 115 Ind. 162, 16 N. E. Rep. 820, and 17 N. E. Rep. 271; Roy v. Rowe, 90 Ind. 54.) We are of the opinion, therefore, that the appellees had such interest or ownership in the real estate involved in this action as to enable them to maintain partition, and that they were tenants in common with the appellant. In a partition suit the equities, as between the common owners, may always be adjusted. In this case it appears by the record that the appellant has been in the exclusive possession of the real estate in controversy for years, and that he has at all times disputed the rights of the appellees, and denied their claim. He is therefore not only chargeable with the rents which he has received from third persons, but is bound to account for his own use and occupation. Carver v. Fennimore, 116 Ind. 236, 19 N. E. Rep. 103. As this case fully cites the authorities, we call attention to the citations therein given. We have examined the adjustment of accounts as made between the parties, and find that the appellant has no reason to complain of the result reached. We find no error in the record. Judgment affirmed, with costs. and conducted by Alfred and John C. S. Harrison in the city of Indianapolis. With a view of inspiring confidence in the solvency of the firm, and to induce the appellant to believe that their bank was a safe place for the deposit of money, one of the partners, at divers times prior to the 23d day of April, 1884, falsely represented to him that the firm was solvent. These representations, although relied on by the appellant, were known to be false by the member of the firm who made them. On the date above mentioned, the appellant, as county treasurer, delivered to the partner above referred to receipts for taxes due from himself and the firm and others to the amount of $2,086.65; that amount being at the same time entered as a credit on the pass-book or bank-book in which the appellant kept the account of his deposits and checks with the bank. At the time the receipts were delivered, and the credit entered, as above, the appellant marked the taxes as having been paid on the tax duplicate, and charged himself with the several amounts. This credit included the amount assessed and due as taxes, the collection of which was enjoined by the decree from which this appeal is prosecuted. It appears that the credit for the amount of the receipts was not entered on the books of the bank until the 28th day of April, 1884, five days after it was credited by a member of the firm on the appellant's pass-book, at which time the balance to his credit was $49,764.67. The appellant's bank-book was balanced on the 10th day of May, 1884. The balance included the amount of the tax receipts. After that date the appellant made deposits, and drew checks against his balance, until in July, 1884, when the bank, being insolvent, suspended payment and made an as signment, with a balance standing to the cred-1 S. 686. Thus, in Titus v. Bank, 35 N. J. it of the appellant amounting to $9,233.72. Law, 588, a dispute having arisen concerning If the amount of the tax receipts is consid- the title of certain checks, the court said: ered as having been deposited in the bank as "They were received and credited in a cash of the date the credit was entered on the ap- account as cash. * * *By such credpellant's pass-book, then he has drawn out iting, the bank became the owners of these more than he deposited since that date, in- bills, as they do of legal tender notes or bankcluding the $2,086.65. If, however, it is not bills so deposited. And, had the defendants to be considered as deposited until it was en- failed the next day, the plaintiffs could not tered on the books of the bank, no part of it have demanded these identical checks as has been since drawn out. The learned their property, left for collection, against a court below was of the opinion that the de- receiver or an assignee in bankruptcy. The posit should be considered as made when the plaintiffs had received the price of these appellant was credited with the amount of checks by having it credited on their overhis pass-book; and that having since that time drafts, and by drawing for it. Hoffman v. checked out more than he has since deposit- Bank, 46 N. J. Law, 604; 2 Morse, Banks, §§ ed, including the amount credited for taxes, 569, 570. In like manner, according to the he was in no way injured by the misrepre-opinion of Lord ELDON, if bills are deposited sentations concerning the solvency of the bank. and entered in the customer's account as cash, with his knowledge and consent, so that he becomes entitled to draw against the amount, he will thereby be precluded from claiming the bills. Ex parte Sargeant, 1 Rose, 153; Ayres v. Bank, 79 Mo. 421; Story, Ag. § 228, note. Upon principle, there can be no reason why, if parties choose to treat a deposit of paper or other securities as cash, so that it is available to the depositor as cash, the transaction should not be regarded as equivalent to a deposit of money. Thus, as was said by WALLACE, J., in Railway Co. v. Johnston, 27 Fed. Rep. 243: "When a sight-bill is deposited with a bank by a customer at the same time with money or currency, and a credit is given him by the bank for the paper, just as a like credit is given for the rest of the deposit, the act evinces unequivocally the intention of the bank to treat the bill and the money or currency, without discrimination, as a deposit of cash, and to assume towards the depositor the relation of a debtor, instead of a bailee of the paper. If the customer assents to such action on the part of the bank by drawing checks against the credit, or in any other way, he manifests with equal clearness his intention to be treated as a depositor of money.” If, by mutual consent, the bank and the appellant choose to treat the tax receipts as so much cash deposited to the credit of the latter, the transaction must be regarded as according to the intention of the parties at the This conclusion is unquestionably correct. The general rule which governs in keeping the account between a bank and a depositor is that as money is paid in and drawn out, or other debts and credits are entered, by the consent of both parties, in the general banking account of the customer, a balance may be considered as struck at the date of each payment or entry on either side of the account. Bank v. Peck, 127 Mass. 298; Lamb v. Morris, 118 Ind. 179, 20 N. E. Rep. 746. Ordinarily, whenever a deposit is made, the amount and date thereof is entered by the cashier or teller in the bank-book or pass-book of the depositor; and such entries, when made by the proper officer, bind the bank as admissions. In some cases it has been held that they become conclusive upon the bank like an account stated, when the bank-book is balanced. 1 Morse, Banks, (3d Ed.) § 291. The settled rule is, where checks, drafts, or other evidences of debt are received in good faith as deposits, if the bank credits them as so much money, the title to the checks or drafts is immediately transferred to the bank, and it becomes legally liable to the depositor as for so much money deposited. Cragie v. Hastdey, 99 N. Y. 131, 1 N. E. Rep. 537; Bank v. Loyd, 90 N. Y. 530. So, when a bank credits a depositor with the amount of a check drawn upon it by another customer, and there is no want of good faith on the part of the depositor, the act of crediting is equiv-time. alent to a payment in money. Nor can the bank recall or repudiate the payment because, upon an examination of the accounts of the drawer, it is ascertained that he was without funds to meet the check, though, when the payment was made, the officers labored under the mistake that there were funds sufficient. Bolton v. Richard, 6 Term R. 139; Bank v. Burns, 68 Ala. 267; Oddie v. Bank, 45 N. Y. 735. Where, therefore, the holder of a check or other genuine instrument representing a fixed sum delivers it to a bank, and receives an unqualified credit as for a definite sum of money, the transaction is equivalent to an actual deposit of so much cash as of the date of the credit. Bank v. Burkhardt, 100 U. The conclusion which follows from what has preceded is that when the appellant transferied the tax receipts to the bank, and received credit for the amount thereof, the transaction was, in legal effect, the same as if he had deposited the amount in cash. He had the right to draw his check against it the next moment after the credit was entered, precisely as if he had made the deposit in money. Moreover, the court finds that he did check against it so as to actually draw the amount out of the bank. This being so, the result is, assuming that there was no fraud in the transaction when the tax receipts were delivered, and the taxes marked paid on the duplicate, and the appellant was credited or his bank-book with $2,066.65 as cash, he in | plaint, on executions duly issued upon three legal effect received the amount of the taxes valid judgments rendered in the Noble cirin cash, and the transaction was consum-cuit court, at various dates from the 6th day mated and closed, precisely as if the bank had of November, 1879; and the dates of the ispaid the taxes, and then received the money suing of the executions thereon. One of the on deposit from the appellant on the 23d day judgments on which executions issued, and of April, 1884. Bank v. Burkhardt, supra. being the senior judgment on which said exWe need not inquire whether or not the facts ecutions issued, was a judgment in favor of found present such a case as would have en- the plaintiff, Franks, rendered November 6, titled the appellant to set the transaction aside 1879, for $136.41 and costs; one, a judgment on the ground of fraud, and obtain a pref- rendered in favor of Uriah Franks against erence over other creditors of the bank. It said Mendenhall and plaintiff Leonard, Janis enough to say that, having received credit uary 21, 1880, for $235.50 and costs, on as for so much cash deposited, and having which Leonard was surety; and the other, checked out a sum of money after the credit a judgment in favor of said Uriah Franks was given him, which included the amount against said Mendenhall and plaintiff Skinof the tax receipts for which he obtained ner, rendered January 21, 1880, for $577.79 credit, he is not in a situation to say that the and costs, on which Skinner was surety,taxes which he claims the right to collect and which two last judgments said Leonard were not in fact paid. He must stand pre- and Skinner had paid, each having paid the cisely as any other depositor whose money judgment for which they were respectively was obtained by the false representations of liable before the issuing of said executions, the officers of the bank, since he has been and said executions were respectively issued content to let the transaction stand until, by for their use; and that the executions were the assignment, the rights of other creditors all duly issued and levied upon the real eswho may be in like situation with him have tate described in the complaint as the propintervened. There was no error. The judg-erty of the principal judgment debtor, Isaac ment is affirmed, with costs. (120 Ind. 536) LEONARD et al. v. BROUGHTON et al. (Supreme Court of Indiana. Nov. 2, 1889.) JUDGMENT-NUNC PRO TUNC ENTRY-EXECUTION. 1. A nunc pro tunc entry of judgment on an official bond takes effect as of the date for which it is entered, as against creditors of the defendant, who have in the mean time obtained judgment for pre-existing debts. 2. Rev. St. Ind. 1881, § 675, which provides that after ten years from entry of judgment an execution can only issue on leave of court, does not invalidate, as to third persons, a sale of real estate under an execution, which, though issued more than ten years after judgment, was never objected to by the judgment debtor. 3. Neglect to satisfy a judgment out of the debtor's personal property does not subordinate the judgment lien on the debtor's land to that of a junior judgment. Appeal from circuit court, Noble county; R. WES. MCBRIDE, Judge. Marshall & McNaguy and H. G. Zimmerman, for appellants. A. A. Chapin and R. P. Barr, for appellees. Mendenhall, who was the owner of said real estate, and had been since the 31st day of December, 1878, prior to the rendition of said judgments; and that said real estate was duly advertised and sold by the sheriff of said Noble county, to satisfy said executions and judgments, on the 22d day of December, 1883, and the plaintiffs became the purchasers of the same for the sum of $700, and a certificate of purchase duly issued; and that said real estate was not redeemed from said sale, and after the expiration of one year, on May 25, 1885, on surrender of the sheriff's certificate, a deed was duly issued to said purchasers; that said $700 purchase money at said sheriff's sale was applied, first, to the liquidation of the executions in favor of plaintiff Franks in full, and the balance applied, pro rata, to the payment of the executions in favor of said Leonard and Skinner. The complaint further alleges and sets out in detail the fact that Mendenhall made a fraudulent sale and conveyance of said real estate to one White on the 31st day of December, 1878, and White to Chapman; and the prosecution of an action to set aside such OLDS, J. This is an action to quiet title. sale and conveyance, and that notice of such There was a demurrer sustained to the com- proceedings was filed in the lis pendens recplaint, and exceptions and judgment on de- ord of said county, and a recovery had in said murrer for defendants. Error assigned as to cause, and a decree entered setting aside such the ruling of the court on the demurrer to the sale and conveyance, and an order for Whité complaint. The plaintiffs in this action are and Chapman to convey the real estate, which Wellington Y. Leonard, Henry W. Franks, they did, and conveyed the same to the plainand Merritt C. Skinner, and the defendants tiffs. That, by reason of such facts alleged are Samuel Broughton, Jacob C. Zimmer- in the complaint, the plaintiffs are the ownman, Charles M. Clapp, as administrator of ers in fee-simple of the said real estate dethe estate of Milton M. Clapp, deceased, scribed in the complaint. It is then averred and Peter Sunday. The complaint is very in the complaint that the defendants Broughlengthy, and sets out the facts in detail and ton, Zimmerman, and Clapp, as administrawith particularity, showing: That the plain- tor, claim title to the same real estate in the tiffs became the purchasers at a valid sheriff's manner following: That at the March term sale of the real estate described in the com- of said Noble circuit court, 1875, a certain action was therein pending, wherein the state follows: "The sheriff will await further orof Indiana, on the relation of James C. Stew-ders before enforcing collection on the within art, auditor of Noble county, was plaintiff, writ. March 7th, 1878." Signed by Willand the defendants herein Samuel Brough- iam Broughton, John P. McWilliams, and ton and Jacob Zimmerman, and the defend- William Imes, county commissioners. And ant Clapp's intestate, William M. Clapp, to- said plaintiffs say that, said order and direcgether with Nelson Prentiss, Ephriam Cram- tions never having been canceled, recalled, er, Cornelius Grim, and Isaac Mendenhall, and or modified, the said execution was by said Isaac Mendenhall as the administrator of the sheriff held until the expiration thereof; estate of John Mendenhall, deceased, were when, on the 11th day of September, 1878, defendants; that said action was brought the said sheriff made return thereof to the upon the bond of said Isaac Mendenhall, clerk of said court, indorsed thereon as foltheretofore late the county treasurer of said lows: "By within order of the county comcounty, and the said other defendants, as missioners, this writ was held, and, the full sureties thereon, for the recovery of the sum time having expired, it is now, by their orof $1,360, for an alleged defalcation by said ders, returned unsatisfied, this 11th day of Isaac Mendenhall, as such county treasurer, September, 1878. NATHANIEL P. ENGLES, and which sum, it was alleged, he had Sheriff." failed to account for and pay over to his successor, in going out of office; that in said cause in said court, upon appearance having been by said defendants therein first entered, and upon answers filed to the complaint on said bond, and after issue joined thereon, a trial was had, and finding made for the plaintiff therein, and judgment rendered by the court thereon on the 10th day of March, 1875, for $1.360, and entered up in Order Book No. 7, p. 53, of said court, against said Isaac Mendenhall alone. Although said day's proceedings of said circuit court for said 10th day of March, 1875, including said judgment last aforesaid, were by said clerk of said court entered and written up in said order book of said circuit court, yet the plaintiffs say that neither said day's proceedings nor the entry of said judgment were then, or at any other time, ever signed by the judge rendering said judgment, or before whom said proceedings were had; nor has said judgment entry and day's proceedings of said court of said day, or either of them, ever been signed by any judge of said court, or of any court, or by any judge whatever; but, on the contrary, said day's proceedings and said order-book entry of said judgment, each and both, remain wholly unsigned by any judge of any court, or by any judge whatever. Plaintiffs further say that on the 8th day of January, 1878, the attorney for the plaintiff in the judgment last named filed with the clerk of said court a written præcipe for an execution on said judgment against said Mendenhall, so rendered on said 10th day of March, 1875, as aforesaid; that on the 19th day of January, 1878, pursuant to said order, said clerk issued an execution on said last-named judgment, directed to the sheriff of Noble county for service, which said writ came to the hands of the sheriff on the last-named day aforesaid. And plaintiffs say that afterwards, on the 7th day of March, 1878, the then county commissioners of said county indorsed upon said execution, in writing, by them severally signed, as such county commissioners, an order and direction to said sheriff to hold said writ, and not to execute the same until further orders from said county commissioners, which order is as It is further averred that afterwards, on the 22d day of September, 1881, the then county auditor of said Noble county, by his attorney, filed in the office of the clerk of said court a motion to correct said judgment. That said motion was entitled as follows: "The state of Indiana, on the relation of James C. Stewart, auditor of Noble county, vs. Isaac Mendenhall, Samuel Broughton, Jacob C. Zimmerman, William M. Clapp, Charles M. Clapp, administrator of the estate of William M. Clapp, deceased, Wilson Prentiss, Ephriam Cramer, Cornelius L. Grim, and Isaac Mendenhall, as administrator of the estate of John Mendenhall, deceased." That it was alleged in said motion that at the March term, 1875, of said court, the action was pending upon the bond as aforesaid, and that the defendants in said action appeared thereto, issues were joined, and the cause submitted to court for hearing and trial, on an agreed statement of facts; and the court found for the plaintiff in said action, against all of the defendants, in the sum of $1,438.38. And that said court thereupon rendered judgment against all of said defendants, in accordance with said finding; and that, notwithstanding the finding so made, and judgment so rendered and pronounced by the court, the clerk of said court, by inadvertence, mistake, and misprision, entered up said judgment in the order book of said court for the sum of $1,360, instead of $1,438.38, and against the defendant Isaac Mendenhall alone, instead of against him and all of the other defendants, as the same was given and pronounced, and should have been rendered. And said motion further recited the said agreement upon which said judgment was rendered, and a copy of the entry and minutes made by the judge on the judge's docket; and said motion asked for the correction of said judgment as to amount, changing the said amount from $1,360 to $1,438.38, and by making the same a judgment against all of said defendants, instead of a judgment against said Isaac Mendenhall alone; and, upon making of such corrections, that the order-book entry be signed, and that such correction and amendment of said record be made now as of said March 10, 1875; that Prayer for quieting plaintiffs' title. the defendants named in said motion, except | quent for the non-payment of taxes, and persaid Cornelius Grim and Ephriam Cramer, mitted the same to be sold on the 9th day of appeared to said motion and filed their answer February, 1885, by the treasurer of Noble therein; that, upon issue being joined in said county, for taxes then due and accrued therecause for proceeding on said motion and an- on, in the sum of $116.48; and defendants swers, the same was submitted to the court became the purchasers for said sum at said for hearing and trial, whereupon, on the 10th tax-sale, and paid said sum, and took a cerday of January, 1883, the court found for the tificate of purchase for the same, and still relator, and made an order directing said hold and retain said certificate of purchase. judgment to be entered up against all of said That said claim of title to said real estate by defendants, nunc pro tunc, for the sum of said defendants, in virtue of and by reason $1,360, which order and judgment was there- of the matters and facts in the premises alupon by the clerk of said court entered up in leged, is adverse to the plaintiff's claim therethe order book of said court, and signed by to; and that said defendant's claim of title, the judge, but that the original order-book by reason of the facts alleged, is without entry was not, nor has it ever been, signed right, unlawful, and unfounded, and casts a by any judge. And it is further averred that cloud upon the plaintiffs' title. long before the filing of said motion and the making of said nunc pro tunc entry the term We have stated in brief the material alleof office of said Stewart had expired, and said gations in the complaint. By the averments Keiser had been elected and was serving as in the complaint it appears that the execuhis successor; that afterwards, on the 2d day tion sale at which the appellants herein beof April, 1883, and without having first ap-came purchasers of the real estate was made plied and obtained leave of court therefor to to satisfy three executions: One issued on a issue an execution on said alleged judgment of March 10, 1875, præcipe was filed. An execution was issued on the judgment so ordered on the 10th day of January, 1883, to be entered up nunc pro tunc, and delivered to the sheriff of said county; and he levied the same upon the real estate in controversy, described in the complaint. And said sheriff duly advertised and sold the same on the 19th day of May, 1883, to defendants, appellees herein, Broughton, Zimmerman, and Clapp, and issued to them a certificate of purchase for the same, and at the expiration of one year from such sale a deed duly issued to such defendants for the same, and defendants now claim title to said premises by virtue of said sale and sheriff's deed, and not otherwise. That before said last-named sale to defendants the said defendants had full knowledge and notice of all the rights and claims, legal and equitable, in and to said real estate of said plaintiffs. That at the time of the rendition of said judgment of March 10, 1875, against said Isaac Mendenhall, the said Mendenhall then was and thereafter continued to be, until the 31st day of December, 1878, the owner and in the open and notorious possession of a large amount of personal property subject to execution in said county, of the value of $2,000. That from March 10, 1875, to December 31, 1878, said judgment against Mendenhall for $1,360, with interest and costs, could have been collected of said Mendenhall, and made out of the personal property aforesaid, bad the said plaintiff and the said plaintiff's relator, his agents and attorneys in said last-named judgment, or either of them, exercised due and reasonable diligence in that behalf; but that they took no steps towards the collection of the same. That, on the contrary, plaintiffs had used all possible diligence for the collection of their judgments. judgment rendered in favor of appellant Franks against Isaac Mendenhall; one issued on a judgment rendered in favor of Uriah Franks against Isaac Mendenhall and appellant Leonard,-Leonard being surety, and having paid the judgment, and had execution issued for his use; and the other issued on a judgment rendered in favor of Uriah Franks against Isaac Mendenhall and appellant Skinner, -Skinner being surety, and having paid the judgment, and had execution issued for his use. The two latter judgments were rendered on the same date and subsequent to the former, and the proceeds of the sale were applied, first, to the payment of the senior judgment in favor of appellant Franks, and the balance applied pro rata on the two junior judgments; and they stand in the position of judgment creditors holding judgments rendered on pre-existing debts, and no averments as to having parted with anything of value, or extending credit to the judgment debtor, on the faith of his real estate being unincumbered. It is important, first, to consider the effect of the nunc pro tunc entry of the judgment. The court, on the 10th day of January, 1883, entered up a judgment as of the date of March 10, 1875, for $1,360. This judgment was entered of record in the order book, and signed by the judge. The effect of this record was to enter a judgment as of the former date, and, when entered, it stood as a judgment of that date, and had the same effect as if it had been properly entered of record, and signed by the judge, on March 10, 1875. Freeman, in his work on Judgments, states the law in regard to nunc pro tunc entry of judgments thus: "The entry of judgments or decrees nunc pro tunc is intended to be in furtherance of justice. It will not be ordered so as to affect third persons who have acquired rights without notice of the rendition of any judgment. GenIt is further averred: That the defendant erally, such conditions will be imposed as may herein permitted said lands to become delin-seem necessary to save the interests of third |