a lake or river, and that, as a lake generally | Belding v. State, 25 Ark. 315; Ridgway v. dries up, the owners of the banks become the Ludlow, 58 Ind. 248; Ross v. Faust, 54 Ind. owners of the bed, each to the center thereof; 471; Boom Co. v. Adams, 44 Mich. 404, 6 but we are unable to find a case parallel with N. W. Rep. 857; Richardson v. Prentiss, 48 the one under consideration, or where the Mich. 92, 11 N. W. Rep. 819. doctrine has been applied to a lake like the one in question, or many of the lakes within this state. Where the body of water is a running stream, being a narrow rivulet at its bend, and growing larger, and widening until it enters into another stream still larger, or where it is a long, narrow body of water, there is no trouble of applying this doctrine; but when the body of water is surrounded by land and almost circular in form, covering a quarter or half section or more of land, with riparian owners on either side, we cannot say that the owners on the east and the west would take to the exclusion of those on the north and south, nor vice versa, nor would it do, as it seems to us, to apply a doctrine that would require the running of diagonal lines between the various owners, each reaching to the center of the lake. The true doctrine to apply, in the disposition of such land as is covered by the body of such lakes, we think is that the government in making surveys included in such survey all the land within the district surveyed, and if there was a lake or large pond, which covered a part of a subdivision, it was meandered out, and the dry land in such subdivision designated as a fractional subdivision or lot; that in the purchase of such fractional subdivision or lot the purchaser took title to it as a riparian owner, with the right to the land, as the water receded, within the boundary lines of the subdivision conveyed to the purchaser. In other words, the purchaser acquired title to all the land within the subdivision, though it was described as a fractional subdivision or lot. The authorized survey divided all the land within the district into subdivisions, and if, by reason of water upon a tract of the land, a portion of it was regarded at the time as worthless and unsalable, there was a meander line run to ascertain the amount of dry land, and such subdivision was designated as fractional subdivision or lot, and, although thus described, the sale passed title to the whole subdivision. There are two decisions of this court supporting this doctrine: Edwards v. Ogle, 76 Ind. 302; and in the case of State v. Bank, 106 Ind. 435, 7 N. E. Rep. 379, the court says: "Without entering upon a review of the numerous cases upon the subject of riparian rights, we are very clear that the deeds or patents from the state to Dunn and Condit carried to them no more of the swamp and overflowed lands than were included in the several surveyed subdivisions bounded by the lake." Upon the general question of riparian rights we cite Boorman v. Sunnuch, 42 Wis. 233; Rice v. Ruddiman, 10 Mich. 125; Jones v. Johnston, 18 How. 156; Banks v. Ogden, 2 Wall. 57; St. Clair Co. v. Livingston, 23 Wall. 46; Murry v. Sermon, 1 Hawks, 56; Municipality v. Cotton-Press, 18 La. 122; The further question is presented in the case that the state claims title to the land, and it cannot be sued either directly or by any action in relation thereto against the appellee, as auditor of state. The action was originally commenced against one Simeon Harness and William Everhart, sheriff of La Porte county, alleging ownership in the plaintiff, and that the auditor of state had executed a lease to Harness, and that the auditor of state had issued a warrant to the sheriff of said La Porte county, commanding said sheriff to dispossess said appellant, and to place said Harness in possession; and afterwards the auditor of state came into court, and answered to the complaint, and the cause was dismissed as to ' the other parties. The auditor of state was suing to dispossess the appellant of the land, and he had a right to have his title settled, and to continue in possession; and after he had commenced suit against the occupant the auditor of state appeared and was made a party to the suit, and pleaded to the complaint, and he cannot now avoid a judgment on the ground that he represents the state, and the state claims title to the land, and cannot be sued either directly or indirectly. State v. Commissioners, 101 Ind. 69; State v. Bank, supra. As the cause was commenced, it involved a litigation between two parties claiming a right to the land,-one claiming title by mesne conveyances from the United States, and the other by lease from the state. The title to the real estate in question having passed from the United States to the appellant by mesne conveyances prior to the issuing of the patent for the same to the state, the state took no title, and it follows therefrom that the court erred in overruling the demurrer to the defendant's answer. Judgment reversed, at appellee's costs, with instructions to the court below to sustain the demurrer to the answer. (121 Ind. 92) STATE ex rel. HOMER v. BARRETT et al. (Supreme Court of Indiana. Nov. 8, 1889.) ADMINISTRATOR'S BOND-SET-OFF - LIABILITY OF SURETY. 1. In an action on an administrator's bond, the administrator may set up a counter-claim for money paid out in excess of receipts; and the objecclaimants more than they were entitled to, must tion that, owing to insolvency of the estate, he paid be raised by reply. istered the estate, and all the rights, credits, etc., 2. An answer that defendant had fully adminwhich came to his hands, and that said estate is now indebted to him in a certain sum, is good on demurrer, though it might have been required to be made more specific as to the manner of the in debtedness. 3. It is sufficient for a surety on such bond to allege that prior to the breaches assigned a cosurety had, upon proper proceedings, been released, and a new bond filed. 4. Rents and profits received by an administrator from lands descended to the heirs cannot be recovered in an action on his bond, as, under Rev. | failed to pay the remainder thereof, amountSt. Ind. 1881, § 2369, he is entitled to these only on petition and order of court, in which case addition al bond would be required. Appeal from circuit court, Posey county; WILLIAM F. PARROTT, Judge. Ernest Dale Owen, William Loudon, and Fred P. Leonard, for appellant. Hovey & Menzies and E. M. Spencer, for appellees. ing to $4,000, which is due and unpaid. Sev enth. That said administrator filed his final report in which he claimed credit as coming to him a balance of $2,769.65, when he is and I was indebted to said estate in the sum of $6,000. On motion of the appellee Williams, the surety, breaches 1, 2, 6, and 7 were struck out by the court, and the appellant excepted. The appellee Barrett filed an answer in COFFEY, J. This was a suit in the court three paragraphs, the first of which is a genbelow upon an administrator's bond, in the eral denial. The second is a counter-claim usual form. The complaint alleges the ap- against the estate, in which he avers that on pointment of the appellee George M. Barrett the 11th day of November, 1875, the estate as the administrator of the estate of George was indebted to him in the sum of $285.72, A. Barrett, deceased; the execution of the on a settlement made by him at the Novembond in suit, with the appellee Williams and ber term of the Posey circuit court, which one William Barrett as sureties; the removal settlement was duly approved by said court; of the appellee George M. Barrett from the that the estate of said George A. Barrett was trust by order of the court, and the appoint- justly indebted to him in the sum of $555.72, ment of the appellant as his successor. The on settlement made and confirmed by the complaint then alleges seven supposed Posey circuit court at the November term, breaches of the bond, substantially as follows: 1876; and that said estate is further indebted First. That an agreement was entered into to him in the sum of $2,769.65, on vouchers in 1874, between the administrator and the filed at the February term, 1886, of the Posey heirs and creditors of George A. Barrett, de- circuit court,-making a total of $3,325.37, ceased, to the effect that the administrator for which he demanded judgment. Third, should take the rents and profits of certain that he fully administered the estate of the land of which the said George A. Barrett died said George A. Barrett, and all the rights, seised, and pay any residue of the debts of the credits, moneys, and effects of said estate deceased there with remaining after the per- which came into his hands to be administered; sonal property was exhausted; that under and that said estate is now indebted to him said agreement said administrator collected in the sum of $3,325.37, for which he deof said rents the sum of $2,500; that he ac-mands judgment. The appellee Williams counted for $700, leaving $1,800 unaccount- filed an answer in five paragraphs, the first ed for. Second. Alleging the agreement set being a general denial. The second avers out in the first breach, and a failure on the that said administrator fully administered part of the administrator to collect rents, the estate of the said George A. Barrett, and which he might have collected, to the amount fully accounted for and paid out all the moneys of $3,000. Third. That at the time of his that came into his hands as such administraremoval said administrator had collected the tor before the commencement of this suit. sum of $1,500, and the further sum of $890, The third avers that he executed the bond in of the money belonging to said estate, for suit, with one William Barrett as his cowhich he failed to account. Fourth. That surely; that in 1877 said William Barrett, in in 1876, 1877, and 1878 said administrator a proper proceeding for that purpose, was rehad ample funds in his hands, belonging to leased from said bond by order of the proper said estate, to pay all its liabilities; that he court, without his knowledge or consent; negligently and wrongfully failed to pay the and that said administrator thereupon, by orsame, by reason of which large sums of inter-der of the court, executed a new bond, with est have accumulated, and other claims have been filed, amounting to $3,000, which would have been saved to said estate except for such wrongful conduct on the part of said administrator. Fifth. That said administrator was indebted to said estate in the sum of $6,500, for the purchase price of certain real estate; that he has never paid said $6,500, or any part thereof, nor reported the same as due from him to said estate; and that at the time of his removal the same was due and unpaid. Sixth. That in consideration of the execution of a title bond to said administrator by George A. Barrett, deceased, he agreed with said deceased, and since his death agreed with his heirs, in consideration of the conveyance by them to him of the said land, to pay certain debts of the deceased; that he has paid certain of said debts, and charged the amount so paid to said estate in his reports, and has surety, to the approval of said court; that, if said administrator has been guilty of any breach of his bond, it was since the execution of said new bond, and not before. The fourth is the six-years statute of limitations. The fifth avers that said administrator, since his appointment, in 1871, has made his yearly reports, up to the year 1876, to the proper court, which show that he has fully administered said estate, which reports were duly approved by said court, and ordered spread of record upon the records of said court, which was done; that said reports import absolute verity, and are now standing unimpeached and unattacked by any one for fraud or mistake, or any other cause. The court sustained a demurrer to the fourth and fifth paragraphs of the separate answer of the appellee Williams, and overruled it as to the second and third. The court also overruled, a demurrer The to the second and third paragraphs of the sep- tion; and hence it was not improper to allow arate answer of the appellee Barrett. A trial them against the claim by the present adminby the court resulted in a finding for the ap-istrator that he had failed to account for the pellant upon his complaint, assessing the money which had come into his hands. damages at one cent, and a finding in favor argument advanced by the appellant, that he of the appellee Barrett upon his counter-may have paid claimants more than they claim, assessing his damages at $3,325.37. were entitled to receive, by reason of the inOver a motion for a new trial, proper judg-solvency of the estate, does not meet the case. ments were rendered on these findings. The If such were the facts, the reply should have appellant assigns as error-First, that the developed it; and, in that event, he would court erred in overruling the demurrer to the have been allowed no more than he had rightsecond and third paragraphs of the answer of fully paid out for the benefit of the estate the appellee Barrett; second, that the court represented by him. erred in overruling the demurrer to the second and third paragraphs of the answer of the appellee Williams; third, that the court erred in striking out the 1st, 2d, 6th, and 7th breaches of the bond in suit, as the same were alleged in the complaint; fourth, that the court erred in overruling the motion for a new trial. We have had more doubt as to the third paragraph of the answer; but, after mature deliberation, we are of the opinion that it is good, as a plea that he has fully administered, and properly paid out and accounted for, the assets which came into his hands as administrator. The allegation that after so doing the estate is still indebted to him must be construed with reference to the allegations which precede it; and, when so construed, it must be taken to mean that in administering the estate he paid out the sum therein named in excess of what came into his hands. The answer was, in our opinion, subject to a motion to make it more specific, but no such motion was made. We do not think the court erred in overruling the demurrer to the second and third paragraphs of the separate answer of the appellee Barrett. Nor do we think the court erred in overruling the demurrer to the third paragraph of the separate answer of the appellee Williams. It is averred in that answer that the co-surety of Williams, upon a proper proceeding for that purpose, had been released from the bond in suit, and that the administrator had, by order of the court, filed a new bond, and that the breaches of the bond alleged in the complaint occurred after the execution of the new bond. We think it should be held that upon filing a new bond the old one was at an end. While the sureties on the old bond would be liable for any breach of the same before the new one was accepted and approved by the court, we think that for subsequent breaches the liability is: upon the new bond, and not upon the old. Owen v. State, 25 Ind. 371; Lane v. State, 27 Ind. 108. The first supposed error discussed by the appellant in his brief relates to the action of the court in overruling the demurrer to the second and third paragraphs of the separate answer of the appellee Barrett. It is argued that to allow the claims set up in these answers would disturb the due course of administration, and that therefore it was error to overrule the demurrer. The case of Dayhuff v. Dayhuff, 27 Ind. 158, and Convery v. Langdon, 66 Ind. 311, are relied on by the appellant to maintain his contention. In the case of Dayhuff v. Dayhuff, supra, it appears that the appellant had executed a note to the administrator for the price of goods purchased at a sale of the property of the deceased by the administrator, and, when sued upon the note, he sought to plead as a set-off against the note a debt due him from the deceased. It was held that there was a lack of mutuality, and the set-off was denied. In the case of Convery v. Langdon, supra, the suit was upon a debt due to the deceased in his life-time. At the time the deceased departed this life the appellee was his security on a promissory note which, after his death, he was compelled to pay. It was held that, as both these claims did not exist at the time Reiter, the deceased, whose estate was represented by appellant, departed this life, that the appellee was not entitled to his setoff. It has always been held, however, even We do not think that the court erred in! in the absence of our statute upon the sub-sustaining the motion to strike out parts of ject, that, where cross-demands existed be- the complaint. Some of the matters therein tween persons under such circumstances as alleged may render the appellee Barrett liable that one could be pleaded as a counter-claim to an action in his individual capacity, but he or set-off to an action brought upon the oth- would not be liable in his capacity as admin-: er, that neither could be deprived of the ben- istrator. The administrator is not entitled fits thereof by the assignment or death of the to the rents and profits of land which deother; and the two demands were deemed to scended to the heirs of his decedent without; compensate each other, so far as they were filing a petition and obtaining an order of the equal. The claims set up in the second para- court; in which case he would be required to graph of the answer here relate to moneys file an additional bond. Rev. St. 1881, § 2369. due the appellee on account of his manage- It cannot be said, therefore, that the bond ment of the trust, which had been allowed executed to secure the faithful administration him by the court. He had the right to ap- of the personal property covers rents and ply any moneys that might come into his profits derived from the real estate owned by hands as such administrator to their liquida-the decedent at the time of his death. Wor gang v. Clipp, 21 Ind. 119; Hankins v. Kim-] ball, 57 Ind. 42; Rodman v. Rodman, 54 Ind. 444. The issues in the cause were not in a condition to try the question as to whether the administrator had wrongfully paid debts in full. Such question, if any such exists, must be tried in a cause where an issue of that kind is made. The judgment in the case is in proper form, being an ordinary judgment, collectible of the assets of the estate in the hands of the appellant. There is evidence in the cause tending to support the finding and judgment of the court, and we cannot, therefore, disturb the finding on the evidence. We find no error in the record for which the judgment should be reversed. Judgment affirmed from date, with interest at 8 per cent. per annum, and to secure the said note executed at the same time a mortgage on all of its real estate, machinery, and material on hand; that afterwards, and on the 21st day of February, 1885, the said corporation transferred all of its property to a trustee, except certain subscriptions to stock which were unpaid; that said trustee was to dispose of the said property so transferred, and apply the same to the payment of the indebtedness of said corporation, except the debt due to the appellant; that said trustee sold the said trust property to one William G. Adams for the sum of $2,450, which was applied to the payment of the indebtedness against said corporation, and with which all of the debts and claims of said corporation were paid, except that of the appellant, and leaving the appellant then and now its only creditor; that at that time the said corporation became wholly insolvent, and has so continued; that at no Under Rev. St. Ind. 1881, § 3869, which pro- time since said sale has said corporation carvides that stockholders of manufacturing and min-ried on any business; that it has not acquired ing companies shall only be liable for the amount of the stock subscribed by them, a creditor cannot any means or property with which to persue a stockholder or a subscriber to the original form or carry on any business; that no diarticles of association for the amount of unpaid rectors or officers to manage its affairs have stock or subscriptions; as the only liability is to been chosen since the date of said sale; that the corporation, or to a receiver in case of its insolvency, and it is immaterial that plaintiff alleges the directors and officers theretofore elected that he is the only creditor. and then acting have not performed any of the acts or duties devolving upon them since April 25, 1885, at which time a meeting of the board of directors was held, and a com (121 Ind. 64) WHEELER V. THAYER et al. (Supreme Court of Indiana. Nov. 8, 1889.) CORPORATIONS-LIABILITY OF STOCKHOLDERS. Appeal from circuit court, Marshall county; ISAIAH CONNER, Judge. Samuel Parker, for appellant. H. Corbin, A. C. Capron, L. M. Lauer, Packard &mittee was appointed to ascertain a method Drummond, and Wm. B. Hess, for appellees. to work a dissolution of said corporation; that no report of the condition of said comBERKSHIRE, J. This action rests upon pany has been made since said date or pubthe construction to be given to the following lished; that on the 28th day of January, 1887, section, (Rev. St. 1881:) "Sec. 3869. The the appellant obtained a judgment against said stockholders and members of manufacturing William J. Adams, the purchaser of the propand mining corporations shall only be liable erty mortgaged, who, in his purchase, asfor the amount of the stock subscribed by sumed the payment of said indebtedness due them respectively, and privileges or immuni- to the appellant for the sum of $5,202, and a ties which have been heretofore granted to decree foreclosing said mortgage; that upon such corporations shall, upon the same terms, said judgment and decree an order of sale isequally belong to all citizens who may desire sued March 7, 1887, and the mortgaged propto incorporate themselves for the same pur-erty was sold thereon for the sum of $8,400, pose: provided, that such stockholders shall be individually liable for all debts due and owing to laborers, servants, apprentices, and employes for services rendered such corporation." The complaint, in substance, alleges that on the 28th day of November, 1881, there was organized, under and according to the general laws of the state of Indiana, at the city of Plymouth, in the state of Indiana, a private corporation known as the "Adams Chilled Plow Company," the business of which was to manufacture plows and machinery, and to do general foundry work; that on the 11th day of November, 1882, said corporation, through its then president and secretary, after due and proper authorization from its then board of directors, borrowed from the plaintiff $6,000, which was to be used, as he was informed, by its said president and secretary in the business of the corporation, and was so used, and for which it executed to him a note, due in three years and that is all that the appellant has realized, or can realize, on his said debt against said corporation, the said Adams being wholly and notoriously insolvent; that at the time the appellant's said note was given, and the money borrowed of him, as stated, the appellees were the owners of stock in said corporation, or had become entitled to receive stock, and liable to pay for the same, and subject to the liability of stockholders, by signing the original subscription list, and meeting with the other persons who were stockholders, as stockholders, and by performing services on committees in the organization of said corporation, and by performing like services after the corporation was organized; that the said appellees have not paid to the corporation or to any person the amount of stock held by them, or which they are entitled to receive and pay for, but yet owe the amounts heretofore in this complaint set down as unpaid subscriptions; that there is yet due a stockholder in the Wooten Desk Company. the appellant, and unpaid at this time on his | other creditors may turn up, and, if so, said debt, $4,450. The appellees filed a de- they ought to have an opportunity to file murrer to the said complaint, which was sub- their claims, as they would have the right to mitted to the court and sustained, and to the do should a receiver be appointed. The case ruling of the court the appellant reserved an of Dukes v. Love, 97 Ind. 341, is somewhat exception, and, the appellant refusing to like the case under consideration. That was amend his complaint, judgment was rendered an action by the receiver of the Indiana Managainst him for want of a good complaint. ufacturing Company against the estate of The appellant appears, and assigns as error John Love, deceased, whereby the appellant the ruling of the court in sustaining the de- sought to recover from the decedent's estate an murrer to his complaint. amount claimed to be due to it from the The complaint violates one well-known Wooten Desk Company, another manufacturrule of pleading, which is that all averments ing company. The averments in the comin a pleading should be direct and certain, plaint are very similar to the averments in and not in the alternative or in ambiguous the complaint under consideration, and the language. Steph. Pl. (Heard's Ed.) 337; right of action against the appellee was predKing v. Brereton, 8 Mod. 330; King v. Stock-icated upon the fact that the decedent was er, 5 Mod. 137, 1 Salk. 342. It is difficult to tell whether the pleader intended to allege that the appellees were stockholders in the corporation, or merely subscribers for stock in advance of its final organization. But the complaint does allege that the appellees were subscribers to the original articles of association, and it is the sums alleged to be due on these subscriptions which the appellant is seeking to recover. If the corporation itself were to sue on these subscriptions, it would be compelled to allege and show that every step necessary to a final and complete organization had been taken, or the complaint would be bad; and if we concede for the time being that the appellant has a right of action to recover the amount of these subscriptions, he will be required to show a perfected incorporation. Wert v. Turnpike Co., 19 Ind. 242; Williams v. Association, 26 Ind. 310; Chance v. Gravel Road Co., 32 Ind. 472; Mining Co. v. Herkimer, 46 Ind. 142; Nelson v. Blakey, 47 Ind. 38. But we do not rest our decision on this ground. The statute does not justify the construction which the appellant is seeking to have placed upon it. The liability which is provided for in the first branch of the section is a liability by the individual stockholders or members of the corporation to the corporation, or, in case of its insolvency, to a receiver appointed to wind up its affairs. Under this branch of the section the party sued must occupy the relation of stockholder or member of the corporation, and have subscribed for stock which is unpaid. In that event he is liable to an action by the corporation, or its receiver, in case one has been appointed. The statute is not, in our judgment, broad enough to cover the case of one who has subscribed for stock, but has not become a stockholder. In that event he would not be liable on account of the statute, but simply on his subscription. It is quite clear that the appellant has no right of action against the appellees. If they owe the corporation anything on account of stock subscriptions, a receiver should be appointed to settle up the affairs of the corporation, who may enforce collections, and by due course of law settle up its affairs. It is true the appellant avers that he is the only creditor, and he may be, so far as he knows; but (121 Ind. 87) SUMMERLOT et al. v. HAMILTON. (Supreme Court of Indiana. Nov. 9, 1889.) PARTNERSHIP-AUTHORITY OF PARTNER. 1. About the time a father and son sold their business as general merchants, which they had stock of drugs in the firm name; and this business been conducting as partners, the son bought a was, under a different name and in another building, carried on for about eight months, when plaintiff, who had become a partner in it, sold his interest' to the son, taking a note in the old firm name of the father and son. Held, that even if plaintiff had no notice that the former partnership was dissolved, and that the father had no interest father, not being given in a partnership transacin the drug business, the note would not bind the tion, and one partner having no authority to bind another by purchasing the interest of a third.1 some of which are not applicable to the facts, can2. Contradictory and confusing instructions, not be regarded as harmless. Appeal from circuit court, Owen county; A. M. CUMMING, Judge. John C. Robinson and I. H. Fowler, for appellants. S. O. Pickens and W. A. Pickens, for appellee. MITCHELL, J. This was a suit by John W. Hamilton against John J. and William 1On the general power of one partner to bind the firm, see Fulton v. Laughlin, (Ind.) 20 N. E. Rep. 796, and note; Appeal of Terra Cotta Co., (Pa.) 17 Atl. Rep. 4, and note; Schwank v. Davis, (Neb.) 41 N. W. Rep. 141, and note; Sterling_v. Bock, (Minn.) Id. 236; Bank v. Alburger, (N. Y.) 4 N. E. Rep. 341, and note. |