peal was prosecuted, if there was any such judgment, is left entirely to conjecture. was not within the issues. It does not appear, enjoin, or the judgment from which this apby the statement of the record that there was any objection or exception to its admission until the motion for a new trial was filed. No question therefore is presented as to the court's ruling in admitting such evidence, and for the same reason in admitting any other evidence. The record must show the objections made and exceptions taken at the time of the court's ruling on the offered evidence. Chicago, I. & L. R. Co. v. Ader, 184 Ind. 235, 239, 110 N. E. 67; American Fidelity Co. v. Mortar & Fuel Co., 178 Ind. 133, 98 N. E. 709; Adolph Kempner Co. v. Citizens' Bank, 64 Ind. App. 632, 116 N. E. 440. [2] It appears by this assignment that appellant had, before she commenced her action, assigned all of her interest in the contract to her husband. Thereafter she had no right of action, and judgment was properly rendered against her. The court did not err in its decision. Judgment affirmed. Nowhere in his brief is a copy of his said complaint set out. The brief herein fails to inform us as to the nature of the judgment appealed from. We are left to surmise as to whether a demurrer was interposed to his said complaint, and the same sustained, and judgment rendered against appellant thereon, or as to whether there was a trial of this cause upon the merits, which resulted in a judgment against appellant. He has not informed us as to the specific error or errors of which he complains, and from said brief it is impossible to tell whether he is complaining of a ruling upon a demurrer, the admitting or the excluding of evidence, or the overruling of a motion for a new trial. The brief contains no statement of "errors assigned," or of "errors relied upon for reversal." No demurrer or motion for a new trial are mentioned in said brief, if any were filed. Counsel for appellant have utterly ignored rule 22 of the Supreme Court, and of this SEIBERT v. CITY OF EVANSVILLE et al. court, in the preparation of said brief, and (No. 12345.) (Appellate Court of Indiana. Oct. 6, 1925.) Appeal and error 766-No question presented for consideration of reviewing tribunal, where brief ignored court rule. No question is presented for consideration of reviewing tribunal, where brief of appellant said brief is so prepared that no question is presented for our consideration, and the cause must therefore be affirmed. SON. (No. 12167.) utterly ignored rule 22 of the Supreme Court, UNITED STATES CASUALTY CO. v. VINand of the Appellate Court, in failing to indicate what judgment or ruling was appealed from. PER CURIAM. The appellant, in his brief filed herein, informs us that: * * "This is an action for an injunction, based upon a verified complaint, filed in the Vanderburgh probate court, * asking for an injunction against the defendants, enjoining them, and each of them, from enforcing a judgment rendered against him in the city court of the city of Evansville." * (Appellate Court of Indiana, Division No. 2. Oct. 8, 1925.) 1. Insurance 603-Facts held to justify finding of continued liability on policy, where purported release was fraudulently obtained. Where plaintiff, in accepting payment on accident insurance policy, signed paper purto time of payment, but evidence showed that porting to release company from liability up he never consented to sign release, and that agent fraudulently represented it to be only receipt, finding by court that company continued to be liable on policy was justified. 2. Insurance 603-Payment of amount due under policy is no consideration for release of unliquidated claim under policy. Payment of amount admittedly due under accident insurance policy is not sufficient consideration for release of unliquidated amount claimed under policy. 3. Insurance 562-Making payments without requiring proofs of loss waives same. Making payments under accident policy without requiring proofs of loss waives such Under a heading, "What the Issues Are," he says "that the judgment is void because, and he proceeds to state five alleged reasons why, as he thinks, some judg-proofs. ment is erroneous and void, but whether the said judgment to which he refers is the judgment the enforcement of which he sought to ty; Clinton H. Givan, Judge. Appeal from Superior Court, Marion Coun Action by Helen M. Vinson, as executrix | release, but only a receipt for the amount so of the estate of Frank J. Vinson, her hus- paid, and any receipt signed by him was so band, against the United States Casualty done by him at the time they were so executCompany on an insurance policy. From a ed with the belief that such agent was telling judgment for the plaintiff, defendant ap- him the truth, and not attempting to defraud him. All proofs of loss required by appelpeals. Affirmed. lant were either furnished by him or waived by it. There never was any compromise of his claim, and the policy was never surren Turner, Adams, Merrell & Locke, of Indianapolis, for appellant. John W. Bowlus, of Indianapolis, for ap pellee. NICHOLS, P. J. Action on an insurance policy written by appellant for Frank J. Vinson, whereby for a consideration it agreed to pay him conditionally certain benefits for bodily injury resulting solely through exHe, ternal, violent, and accidental means. and after his death his wife, appellee, sought to recover under said contract on account of injuries received by him. There was a trial by the court, and special findings of fact and conclusions of law in favor of appellee, and that she was entitled to recover from appellant $1,617.66. Thereafter appellant's motion for new trial was overruled, and judgment was rendered against it, from which this appeal. The errors relied upon for reversal are: The action of the court in overruling appellant's motion for new trial, and that the dered to the company. As conclusions of law upon the facts the court found that the law was with appellee, and she was entitled to recover from appellant $1,617.66 and her costs. The court also found that since the date of trial said Vinson died, and that subsequently his widow, appellee, was duly appointed and qualified as executrix of his estate, and was duly substituted by the court as plaintiff. [1] Presenting that the evidence does not sustain the special findings of the court, appellant contends that the evidence does not sustain the finding that there was a balance due of $1,617.66, for the reason that, at each time payment was made to appellee's decedent under the terms of the policy, he signed a written release completely discharging appellant from all liability up to the time of payment, that at each time he received the full amount of the money specified in the release, and that none of the money so receiv must be observed that, the court expressly finds that appellee's decedent at no time consented to sign anything which would release appellant from further payment, and that on each occasion he stated to the agent making payment that it was to be understood that the papers signed by him were to be in no way a release, and that he expected to hold the company for whatever amount the policy provided for; that the agent fraudulent senting that it was not to be considered in court erred in its conclusions of law. By its special findings of fact, the courted was ever returned to appellant. But it found: That on September 17, 1919, appellant issued its policy of insurance to appellee's decedent, covering accident and providing for the payment of $50 weekly indemnity for total disability and $25 per week for partial disability. On December 13, 1921, he was injured by falling off of the back steps of his home on Illinois street, and was wholly disabled from following his avocation as traveling salesman from said date until December 19, 1922, and was entitled to recov-ly induced him to sign the paper by repreer $50 per week during said time, amounting to the sum of $2,000. That he was partially disabled from December 20, 1922, or 52 weeks, at $25 per week, amounting to $1,300, or a grand total of both in the sum of $3,300. | That said company paid him from time to time the amount of $1,682.34, leaving balance due him of $1,617.66. At the time of each payment he signed a receipt for the amount received at such time, which receipts were While only evidence of the amount paid. said receipts contained the word "release," he at no time consented to sign anything which would release appellant from further payment, and on each occasion stated to the agent of appellant that it was to be understood that the papers signed by him were to be in no way a release, and that he expected to hold appellant for whatever amount the policy provided for, and that the agent of appellant on such occasion falsely and with intent to defraud him stated to him that it was not to be considered in any way as a [2] There was only a payment of an amount admittedly owing under the policy, and such a payment will not, within itself, constitute a sufficient consideration for the release of an unliquidated amount claimed under the policy. Driscoll v. Sullivan, 186 Ind. 178, 184, 115 N. E. 331. Certainly not where, as in this case, the evidence shows that there was no intention to release. [3] We deem it unnecessary to consider appellant's challenge of the court's conclusion of law in favor of appellee, further than to say that appellant by its course, as ap pears by the findings, clearly admitted the selves until the consideration was fully paid; it being agreed that a stipulated sum should be paid each year for a period of ten years, and that if Rowe failed to make any payment when due, his rights under the contract would be lost, and the Cramers could take possession of the real estate and treat the payments previously made as rent. While Rowe was in possession under this contract, a dwelling house located upon the land was destroyed by fire, and the insurance money received as a result of the fire ROBERT HIXON LUMBER CO. v. ROWE loss was turned over to Rowe by appellee et al. (No. 12092.) Marion Cramer, Rowe executing to said ap (Appellate Court of Indiana, Division No. 1. pellee a promissory note which was to beOct. 15, 1925.) come void when a new house which Rowe was going to build on the premises should be paid for, Rowe to use the $800 in the buildmake contracts for repairs creating mechaning of the new house. For use in the con 1. Mechanics' liens 59-Vendees cannot ic's or materialman's lien. A vendee in possession of real estate under executory contract cannot make contracts for repairs which create a mechanic's or materialman's lien on real estate, thus defeating or clouding vendor's title. struction of the house, Rowe purchased from appellant certain lumber, which was so used by him. At the time the lumber was purchased, appellant, well knowing that Rowe was in possession of the real estate under the contract of purchase, and that the title to the land was in the Cramers, gave no notice to the Cramers that the material was be 2. Mechanics' liens 99 (2)-Material must be furnished under authority and direction of owner other than mere inactive consent being furnished. The lumber was charged to fore lien attaches. For materialman's lien under Acts 1909, c. 116, as amended by Acts 1921, c. 56, to attach, it is necessary that material be furnished under authority and direction of owner amounting to more than mere inactive consent. 3. Mechanics' liens 99 (2)-Materialman, furnishing material to purchaser under executory contract without notice to vendor, held not entitled to lien on realty. Materialman, furnishing material to purchaser of property, under executory contract for reconstruction of house destroyed by fire, without notice to vendor, who still held title, held not entitled to lien against realty on failure to obtain payment from purchaser in possession, though insurance money was turned over to purchaser by vendor for purpose of having house constructed. Rowe, and with him appellant made settlement therefor, taking a note, which later, and before this suit was commenced, proved to be a forgery. Within the time prescribed by statute, appellant filed notice of its intention to hold a lien on the land. Rowe defaulted in his payments, and surrendered possession of the land to the Cramers. The lumber not having been paid for, appellants commenced this suit on the account and for foreclosure of the lien, making all of the appellees parties defendant. The suit was not for the foreclosure of lien on the house separate and apart from the land, but was brought under section 8295, Burns' 1914, for the foreclosure of lien on the real estate, and the cause was tried upon that theory. In this connection, however, see Toner v. Whybrew (1911) 50 Ind. App. 387, 98 N. E. Appeal from Circuit Court, De Kalb Coun- 450; Davis v. Elliot (1893) 7 Ind. App. 246, ty; Dook R. Best, Judge. Suit by the Robert Hixon Lumber Company against Harry A. Rowe and others to foreclose a materialman's lien. Judgment for plaintiff against first-named defendant only, and plaintiff appeals. Affirmed. H. W. Mountz, of Garrett, for appellant. Walter D. Stump and C. E. McClintock, both of Auburn, for appellees. 34 N. E. 591. Trial resulted in a judgment against Rowe for the full amount of the claim, and a finding and judgment in favor of the Cramers as to the foreclosure of the lien. The one question presented by this appeal is whether or not the decision of the trial court as to appellant's right to a lien on the real estate is sustained by sufficient evidence. [1] In this jurisdiction, the law is well REMY, C. J. On September 1, 1918, ap- established that a vendee in possession of pellees Marion, Walter, and Mabel Cramer, real estate under an executory contract of being the owners as tenants in common of purchase cannot make contracts for repairs certain real estate, entered into a contract which create a mechanic's or materialman's with appellee Rowe by the terms of which lien on the real estate, and thus defeat or they sold to him the real estate, placing him cloud the vendor's title. People's Saving, in possession, but retaining title in them- etc., Ass'n v. Spears (1888) 115 Ind. 297, (149 N.E.) 17 N. E. 570; Rusche v. Pittman (1904) 34 Ind. App. 159, 72 N. E. 473. [2] In order that a lien may attach to real estate, under the act of 1909 (Acts 1909, p. 295, as amended; Acts 1921, p. 135), for material used in the construction of a building erected thereon, it is necessary that the material be furnished by authority and direction of the owner, and something more than the inactive consent of the owner is necessary in order that such a lien may be acquired against him. Toner v. Whybrew, supra; Holland v. Farrier (1920) 75 Ind. App. 368, 130 N. E. 823. [3] We are constrained to hold that the decision of the court is sustained by sufficient evidence. It clearly appears from the evidence that appellant furnished the lumber without any authority or direction from appellees Cramer. Though appellee Marion Cramer knew the house was being built, neither he nor his cotenants knew that any of the material was being furnished by appellant. The sale of the lumber was made directly to Rowe. In fact, settlement of the account was made with him. Doubtless this suit would not have been brought except for the fact that the note taken in settlement had proved to be a forgery. As we view it, the case is that of a materialman taking the chance of furnishing materials to a vendee of real estate who held the same under an executory contract. Affirmed. MESKIMAN v. ADAMS, Sheriff. (No. 12138.) (Appellate Court of Indiana, in Banc. Oct. 7. 1925.) 1. Fraudulent conveyances 107-Transfer of property to plaintiff by attachment defendant held not so free from suspicion as to warrant reversal of judgment for sheriff in replevin. Transfer of automobile by mother to daughter, after former recovered possession from officers who seized it from father, whom they arrested for violating prohibition law, held not so free from suspicion as to warrant reversal of judgment for defendant, in replevin by daughter against sheriff about to sell it under writ of attachment to satisfy judgment against mother for value of attorney's services in her replevin suit. 2. Records 92, New, vol. 12A Key-No. Series-Secretary of state's certificate not conclusive proof of title to automobile. Secretary of state's certificate of title to automobile does not convey title, as does federal land patent, and hence is not conclusive proof of title, and may be collaterally attacked. Appeal from Circuit Court, Knox County; Robert C. Baltzell, Judge. Action in replevin by Irene Meskiman against Harry C. Adams, as sheriff. Judgment for defendant, and plaintiff appeals. Affirmed. Duncan & Duncan, of Princeton, for appellant. uel M. Emison and James M. House, both of Harvey Harmon, of Princeton, and SamVincennes, for appellee. MCMAHAN, J. Action by appellant in replevin for an automobile alleged to be the property of appellant, and which appellee as sheriff had levied upon, and was threatening to sell to satisfy a judgment against appellant's mother. From a judgment in favor of appellee, appellant appeals. The error assigned is the overruling of the motion for a new trial, the specifications of which are that the decision of the court is not sustained by sufficient evidence, and is contrary to law. [1] In February, 1921, the automobile was found in the possession of appellant's father, who had been arrested for an alleged violation of the prohibition law. The officers making the arrest took possession of the automobile, claiming it had been used in the illicit transportation of intoxicating liquor. Mrs. Meskiman brought an action in replevin against the officers having possession of the automobile, and in March, 1921, judgment was rendered in her favor. In September, 1922, the attorney who represented Mrs. Meskiman in that action brought suit against her for the value of his services, and attached the automobile as the property of Mrs. Meskiman. Judgment having been rendered in that action for the plaintiff and ordering the attached property sold, appellant brought this action. On the trial, she, together with her father and mother, testified that her mother gave her the automobile in June, 1921, as an inducement for her to join with the mother in the execution of a mortgage on certain real estate in which appellant and her mother had an interest. She also introduced in evidence a certificate of title issued to her by the secretary of state in October, 1921. The court evidently was not impressed with the bona fides of this transaction. Without going into a detailed statement of the evidence, it suffices to say that the alleged transfer to appellant is not so free from suspicion as to warrant us in saying the decision of the Court is not sustained by the evidence; and, if sustained by the evidence, it is not con trary to law. [2] Appellant insists that the certificate issued to her by the secretary of state was sufficient proof of her title; that such certificate is conclusive proof of her title, and cannot be collaterally attacked. Appellant seeks to give the same force and effect to the certiticate issued by the secretary of state under For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the automobile law as are given to patents | and, without having completed his work acfor lands issued by the national government. cording to the plans and specifications, We cannot concur in this contention. Such through fraud procured from the board of patents convey title. Not so with a certifi- commissioners an order declaring the work cate of title issued by the secretary of state completed in accordance with the contract, for an automobile. and directing that he be paid in full. The Judgment affirmed. board of commissioners, thereafter learning that the road had not been constructed according to the contract and of the fraud of said contractor, commenced this action in the circuit court of Miami county to vacate SULLIVAN et al. v. BOARD OF COM'RS OF and set aside its order declaring the road MIAMI COUNTY. (No. 12170.) completed. The complaint was in two paragraphs; the first being to set aside the order (Appellate Court of Indiana, in Banc. Oct. 16, declaring the road completed according to 2. Highways113(4), 1302, New, vol. 12A Key-No. Series-Board of commissioners, having accepted public improvement, could not maintain equitable action to set aside order of acceptance, but such action should be brought by taxpayers. Where board of commissioners had accepted improvement made by contractor under Burns' Ann. St. 1914, § 7711 (Acts 1905, c. 167, § 62 et seq.), had made payment, and nothing else remained for it to do, it had completed its function, and such board of commissioners could not maintain suit in equity to vacate its order of acceptance on ground of fraud, but such action should have been brought by taxpayers of district as parties in interest, in view of Burns' Ann. St. 1914, § 251 (Rev. St. 1881, § 251). 3. Counties 47-County boards of commissioners creatures of limited authority. the contract, while the second was to set aside said order and for damages. The sec ond paragraph went out on demurrer. A demurrer to the first paragraph was overruled. A trial resulted in a judgment vacating and setting aside the order of the board of commissioners declaring the road completed according to the contract. From this judgment appellants appeal and contend that the court erred in overruling their demurrer to the first paragraph of complaint. Appellants contend that the appellee has no power to maintain an action in a court of equity for the purpose of vacating its order and judgment of acceptance, and that the action should have been brought by the state on relation of the taxpayers affected, or by some taxpayer of the district affected. Appellee practically concedes that, in making the order accepting the road as being completed, it acted in a judicial capacity, and that it had no power to vacate the order of acceptance, but it contends that, as the statutory or enforced agent of the owners of property assessed for the construction of the improvement, it had the right to maintain this action for the benefit and protection of those who will be assessed to pay for the im County boards of commissioners are creatures of limited authority, and have no power other than expressly given by statute or neces-provement. Appellants make no claim that sarily implied to carry out express powers. Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge. the complaint does not allege fraud on the part of the contractor, Ray N. Sullivan, sufficient to sustain the action of the court in overruling the demurrer to the complaint, if Suit by the Board of Commissioners of appellee is entitled to prosecute this action. Miami County against Ray N. Sullivan and The sole and only question for our deterothers. From a judgment vacating and set-mination, therefore, relates to the authority ting aside an order of the Board of Commissioners, defendants appeal. Reversed, with directions to dismiss action. or right of appellee to prosecute this action. The improvement in question was made under section 7711 et seq., Burns' 1914 (Acts Russell J. Wildman and York & Rees, all 1905, c. 167, p. 521, § 62 et seq.). These secof Peru, Ind., for appellants. tions of the statute authorize the boards of Adelbert W. Matt and Hurd J. Hurst, both commissioners of the several counties of the of Peru, Ind., for appellee. state, when the proper petition has been filed and the statutory notices have been given, MCMAHAN, J. Appellant Ray N. Sullivan to refer the petition to an engineer and entered into a contract with the board of viewers, to approve the report of the engicommissioners of Miami county for the con- neer and viewers, to let the contract for the struction of a stone road under the three- completion of the improvement, to approve mile gravel road law. After having given the report of the engineer in charge of conbond with his coappellants as sureties, he struction, when the improvement has been entered into the performance of his duties, completed in accordance with the contract, |