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Pet. 402; Willison 28 v. Watkins, 3 Pet. 43; Voorhies v. White, 2 A. K. Marsh. 26; Winlock v. Hardy, 4 Litt. 272.
It has been held that, "where one has knowledge of facts sufficient to put him upon inquiry, he is chargeable with knowledge of all matters which he could have learned with reasonable inquiry": Kuhns v. Gates, 92 Ind. 70.
In Larman v. Huey, 13 B. Mon, 436, the court held that, where one of two joint tenants sells and conveys a tract of land and gives possession, the grantee's title and possession is adverse to that of the other joint tenant, and, if the grantee hold a sufficient length of time by a continued open renunci. ation of the title of his cotenant, he may acquire title.
Buswell on Limitation of Actions, section 24, page 37 states it to be a general rule of the civil law that prescription begins to run from the time when the creditor acquires a full and perfect right to prosecute his demand. The period of limitation is to be computed from the time at which the creditor may legally prosecute bis action: Jacobs v. Graham, 1 Blackf. 392; Wright v. Tichenor, 104 Ind. 185.
The statute of limitations begins to run, as to persons under legal disabilities, when the action accrues, but, if it has fully run before the disability expires, an action may be brought within the time limited after the disability is removed: Barnett v. Harshbarger, 105 Ind. 410; Davidson v. Bates, 111 Ind. 391; Lehman v. Scott, 113 Ind. 76; Royse v. Turnbaugh, 117 Ind. 539; Wright v. Kleyla, 104 Ind. 223; Bauman v. Grubbs, 26 Ind. 419 (421); Herf v. Griggs, 121 Ind. 471 (476); Sims v. Gay, 109 Ind. 501; Walker v. Hill, 111 Ind. 223.
The phrase "under legal disabilities" includes infants: Rev. Stats. 1881, sec. 296; Bauman v. Grubbs, 26 Ind. 419.
29 The statute begins to run against infants precisely as against adults, when the right of action has accrued and is complete: Davidson v. Bates, 111 Ind. 391.
The only effect of appellant's disability of infancy was to give him, if the full limitation had run during his disability, two years under section 296 of the Revised Statutes of 1881, after he had attained the age of twenty-one years, within which he might sue: Herff v. Griggs, 121 Ind. 471, and numerous cases there cited.
Under the Revised Statutes of 1881, section 255, appellant, although an infant, could have sued as soon as Tate was put in possession under his first deed. Appellant was five years, one month, and sixteen days old when Tate took possession under the guardian's deed.
This suit was commenced August 25, 1890, exactly twentyfour years and nineteen days after appellant's right of action accrued against the grantee. Appellant became twenty-one years of age June 19, 1882, exactly eight years, two months, and six days before this suit was commenced, and eight years, three months, and one day before he filed his answer and cross-complaint in this action, and this was the first claim made by him for his one-sixth interest in the real estate in controversy. He has slept upon his rights, and, under the statute of limitations, which is one of repose, he cannot now recover.
In view of the authorities cited the infant was not entitled to notice in order to set the statute in notion. The undig. turbed possession, as shown by the reply, raises the presumption of notice, and constitutes a complete bar when the period has elapsed. What we have said in considering the demurrer to the second paragraph of the reply, applies equally well to all the paragraphs of the replies and answers demurred to, so far as the questions of the statutes of limitations, ouster, notice, and infancy 30 are involved, and we think the court below did not err in any of its rulings of which complaint is made.
ADVERSE POSSESSION BETWEEN COTENANTS -Although, as a general rulo, an entry of one cotenant will inure to the benefit of all, yet he may so enter and hold as to render his entry and possession adverse: Greenhil v. Biggs, 85 Ky. 155; 7 Am. St. Rep. 579, and note; Oglesby v. Hollister, 76 Cal. 136; 9 Am. St. Rep. 177. To constitute an adverse possession between tenants in common there must be an actual ouster, and an exclusion of the other cotenants by the one in possession: Mansfield v. McGinness, 86 Me. 118; 41 Am. St. Rep. 532, and note. An ouster of cotenants may be inferred from undisturbed possession of another cotenant for a great length of time, accompanied by notorious acts of exclusive ownership: Alexander v. Kennedy, 19 Tex. 488; 70 Am. Dec. 358, and note. See, also, the notes to Cook v. Clinton, 8 Am. St. Rep. 821, and Gillaspie v. Osburn, 13 Am. Dec. 140.
COTENANCY-CONVEYANCE OF WHOLE TRACT BY ONE COTENANT. - Where u tenant in common conveys the whole land to a third person, and the grantee records the deed and enters under it, makes valuable improve. ments, pays the taxes, and receives the rents and profits without offering to account, the cotenant is chargeable with actual notice, and the possession is effectual against him: Unger v. Mooney, 63 Cal. 586; 49 Am. Rep. 100. A deed by a cotenant to a third person of the entire estate does not constitute an actual ouster of his cotenants: Page v. Branch, 97 N. C. 97; 2 Am. St. Rep. 281, and note; Holly v. Hawley, 39 Vt. 525; 94 Am. Dec. 350, and note. Where one tenant in common conveys to a stranger any but an andivided interest in the whole of the land, and such interest is prejudicial to the rights of the other cotenants, such conveyance is void as to them: Benedict v. Torrent, 83 Mich. 181; 21 Am. St. Rep. 589, and note. See fur. ther on this subject the notes to the following cases: Barnes v. Lynch, 21 Am. St. Rep. 473; Rutter v. Small, 6 Am. St. Rep. 437; and Smith v. Hun. Loon, 23 Am. St. Rep. 651.
ADVERSE POSSESSION_PRESUMPTION Or Notice.-To constitute adverso possession the true owner must know that the adverse holder claims in his own right, or the possession must be so open and notorious as to raise the presumption of notice: Normant v. Eureka Co., 98 Ala. 181; 39 Am. Sto Rep. 45, and note. Possession must be adverse to and inconsistent with the rights of the owner before any grant can be presumed therefrom: Ano nold v. Stevens, 24 Pick. 106; 35 Am. Dec. 305, and noto; Armstrong V. Risteau, 5 Md. 256; 59 Am. Dec. 115, and note.
Smith v. CLAUSMEIER.
(136 INDIANA, 105.) HABEAS CORPUS-IRREGULARITIES_REVIEW OF JUDGMENT. —After the court
has acquired jurisdiction of the subject matter and of the person the subsequent proceedings, however erroneous, constitute no ground for the discharge of such person on a writ of habeas corpus. This writ oan.
not be used to review a judgment. HABEAS CORPUS-JURISDICTION OF INFERIOR COURT-EVIDENCE TO IM.
PEACH.-In a habeas corpus proceeding for release from custody under a commitment made by a justice of the peace evidence is admissiblo to show that the record of the court is untrue, and that the justico
never obtained jurisdiction of the person of the petitioner. JUDGMENTS OF INFERIOR COURTS-JURISDICTION-COLLATERAL ATTACK.
The judgment of an inferior tribunal upon a matter over which it has jurisdiction cannot be assailed collaterally for errors or irregularities subsequent to acquiring jurisdiction. The jurisdiction, to be completo 80 as to preclude collateral attack, must exist both as to subject mat. ter and as to the parties, and the recital of jurisdictional facts in the
record may be shown to be false by evidence aliunde. JURISDICTION OF INFERIOR COURTS IN CRIMINAL CASES. – To give a justice
of the peace jurisdiction over the person of one charged with a viola. tion of criminal law the first step necessary is the filing of an affidavit naming the offense and the person charged with its commission, and without such affidavit there is no jurisdiction, and all the proceedings are void. An affidavit filed afterward comes too late, and cannot bo
made to relate back so as to confer jurisdiction at the time of the trial. JURISDICTION OF INFERIOR COURTS — CONCLUSIVENESS OF RECORD - Evi.
DENCE TO IMPEACH.—The record of a court of inferior or limited juris. diction is given the same verity as that accorded the record of a court of general jurisdiction, only after it is shown that the inferior court bad jurisdiction of the subject matters and the parties tried before it.
If jurisdiction is denied, no step can be taken until jurisdiction is shown. If the recitals in the record show jurisdiction and their cor. rectness is admitted, that is sufficient; otherwise proof outside the record must be adduced to establish jurisdiction. S. M. Hench, for the appellant. H. Colerick and J. E. K. France, for the appellee.
106 HOWARD, C. J. The appellant filed his petition for a writ of habeas corpus, alleging that he was unlawfully reotrained of his liberty in the jail of Allen county by the appellee, who is the sheriff of said county.
On the issue of the writ the sheriff's return showed that the appellant was held on a mittimus issued by Daniel Ryan, a justice of the peace of Wayne township, said county, issued upon a judgment of conviction for vagrancy. It was further averred in the return that the appellant had been tried on a plea of not guilty, on an affidavit filed by one Henry Meyers, and that the judgment was unappealed from. Copies of the affidavit, the proceedings and judgment, and the mittimus were made parts of the return, each purporting to be of the date of June 15, 1893.
The appellant filed his exceptions to the return, alleging insufficiency and incorrectness.
Evidence was heard on the issues joined, and the court found for the appellee, that the appellant, petitioner, was lawfully in his custody as sheriff, and remanded the petitioner.
Numerous errors are assigned and discussed by appellant. The only question, however, that need be considered is whether the justice of the peace had jurisdiction to render the judgment and issue the mittimus set out in the record.
As to the irregularities claimed by counsel to exist in the proceedings subsequent to the alleged filing of the affidavit it may be said, in brief, that they constitute no 107 ground for the discharge of the petitioner on the writ of habeas corpus. This writ cannot be used for the purpose of reviewing a judg. ment. If the court had jurisdiction of the subject matter and of the person of the petitioner the after proceedings, however erroneous, cannot be inquired into by any collateral proceeding; but relief must be sought by direct review: Wilo lis v. Bayles, 105 Ind. 363; McLaughlin v. Etchison, 127 Ind. 474; 22 Am. St. Rep. 658; Hurd's Habeas Corpus, 2d ed. 251, and following.
In Church on Habeas Corpus, section 127, it is said: “Where a court of first instance has competent jurisdiction to try and punish an offense the higher court will not assume that the sentence is invalid, or unwarranted by law 80 long as it remains unreversed. Neither will the court require the authority of the court of first instance to pass sentence to be set out in the return to a writ of habeas corpus. It is bound to assume, prima facie, that the unreversed sentence of a court of competent jurisdiction is correct."
The offense charged in the case before us was vagrancy, for which the fine is “not more than fifty dollars nor less than five dollars.” On failure to pay or replevy the judgment the defendant was committed to jail. The justice had, therefore, jurisdiction of the subject matter: Rev. Stats. 1881, secs. 1637, 1647, 2134; Gillette on Criminal Law, sec. 73; Jenkins v. State, 78 Ind. 133.
The question left for decision, then, is whether the justice had acquired jurisdiction of the person of the petitioner at the time of the trial and judgment.
The transcript of the proceedings before the justice was introduced in evidence. From this record it appeared that an affidavit in due form, charging the petitioner with the offense of vagrancy, was filed before the justice by one Henry Meyers, and that on this affidavit a warrant was issued by the justice and a trial had, resulting 108 in the conviction of appellant of the offense charged; and that, on failure of appellant to pay or replevy the fine and costs adjudged against him, a mittimus was issued committing him to the jail of the county.
The appellant then offered to prove by appellee, the sheriff, and by said justice of the peace, and also by Henry Meyers, that the record was untrue in several particulars, and par. ticularly that no affidavit or complaint was filed with the justice against the appellant, petitioner, at the time of the trial. The court, however, excluded all offered testimony in contradiction of the record.
Amongst the questions asked of Daniel Ryan, the justice, was the following, which, with the objection of the appellee, the ruling of the court, and the offer of the appellant, we set out as they appear in the bill of exceptions:
“Q. I will ask you if it is not the fact that the affidavit referred to and set out in your docket just read to the court, charging the petitioner with vagrancy, was not filed until