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was foreclosed against lot 114. The last of the 10 installments for the Locust street improvement would have become due and payable in 1904 in the sum of $20.67, the ninth installment due in 1903 in the sum of $21.84, and the eighth installment in 1902 in the sum of $23.01. The amount paid by the sheriff to the city treasurer in satisfaction of the assessment against lot 114 was $226.46, which was the net proceeds from the sale of lots 114, 115, and 116. At the time of the foreclosure and sale none of the installments of the assessment against lot 114 had been paid, except the first one, due in 1895, in the sum of $31.20.

The act under which the street was improved fixes a lien for any unpaid balance upon property secondarily liable. If lot 114 was insufficient to satisfy the assessment, it did not require any separate assessment to fix a lien for the unpaid balance upon adjacent lots lying within the statutory limit. Cleveland, etc., R. Co. v. Edward C. Jones Co., 20 Ind. App. 87, 50 N. E. 319. That is, when the deed was made by appellees, the assessment had been made, and the lien existed, conditionally, against lot 116. The amount appellant claims he was compelled to pay was not an assessment made after the execution of the deed, but it was the amount of certain installments of an assessment made before the deed was executed. Certain of these installments became due after the deed was executed.

It would not have been necessary for the parties to insert in the deed a provision that the grantee should pay assessments for street improvements made after the execution of the deed. And the fact that the deed was made on January 6, 1902, must be considered along with all the other facts and circumstances, in determining whether the parties intended that the grantee should pay only such assessments for street improvements as were made after 1901, or such assessments for street improvements already made that might become due and payable after 1901. When the deed was made, the assessment, and when and how the same was to be paid, were matters of record. Three of the installments would not become due until after the date of the deed. Appellant testified, in answer to the question whether he knew at the time he purchased "that there were some street assessments against the lots that were unpaid," answered, "Yes; there were three on Second street." He further testified: "The representation to me was that was all there was to pay." That he went to the treasurer's office to see. That he did not look for any assessment for the improvement of Locust street. His understanding was the lot was clear. That the vendor was to furnish an abstract, but that he did not exact it.

It seems from the evidence that, when the deed was made, all the installments for the assessment for the improvement of Second

street had been paid but three, and appellant testifies that the representations to him were that these were all there were to pay. We think the court was authorized to conclude from all the evidence that the parties intended by the deed that appellant was to pay installments for street assessments after 1901. Lot 116 was not secondarily liable for the Second street improvement, but was secondarily liable for the Locust street improvement. If lots 114 and 115 did not sell for an amount sufficient to pay for the improvement of Locust street, then lot 116 became liable. Under the evidence and the construction the court was authorized to place upon the clause in the deed we do not think it can be said that the court was not authorized in finding that there had been no breach of the covenant in the deed. Judgment affirmed.

(37 Ind. App. 429)

WHITESELL v. STUDY. (Appellate Court of Indiana, Division No. 1. March 7, 1906.)

1. MALICIOUS PROSECUTION-GROUNDS OF AC

TION.

Malicious prosecution will not lie unless the prosecution was malicious, was without probable cause, and terminated in an acquittal. [Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Malicious Prosecution, §§ 18, 59, 71.] 2. SAME-CIVIL ACTION-DAMAGES.

When a civil suit is prosecuted maliciously and without reasonable or probable cause, and is terminated in favor of the defendant, plaintiff is liable to defendant for the damages sustained by him in the defense of the original suit, in excess of the taxable costs obtained by him, and to maintain suit for such damages it is not material whether the malicious suit was commenced by process of attachment or by summons only.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Malicious Prosecution, §§ 16, 154158.]

3. PROCESS-ABUSE-MALICE.

The fact that defendant maliciously caused the issuance of process against plaintiff gave no cause of action for abuse of process, where the issuance was within defendant's rights.

[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Process, § 257.]

Appeal from Circuit Court, Wayne County; Wm. O. Barnard, Special Judge.

Action by Elmira J. Whitesell against Thomas J. Study. From a judgment sustaining a demurrer to the complaint, complainant appeals. Affirmed.

Saml. C. Whitesell, for appellant. Thos. J. Study and B. F. Mason, for appellee.

ROBINSON, J. A demurrer for want of facts was sustained to appellant's amended complaint, and on her refusal to plead further judgment for appellee was rendered. The complaint is very long, and it is difficult to tell upon what theory the pleader intended to proceed. Counsel for appellant claims in his brief that the complaint states a cause of action for damages for malicious

prosecution, for abuse of process, and for deceit. Amos Strickler died October 23, 1899, seised of certain land. Appellant, a daughter of Amos Strickler, afterward, in March, 1900, purchased at administrator's sale the undivided two-thirds of the land, and Elizabeth Strickler, the widow of Amos Strickler, conveyed the undivided one-third of the land to appellant for the consideration stated in the deed, which was made a charge on the land, that appellant, her daughter, should provide her a home, the necessaries and comforts of life, and have her expenses of sickness and funeral expenses paid. Appellant borrowed the money to pay for the two-thirds, and executed a mortgage on the land to secure the loan, in which mortgage Elizabeth Strickler joined. The mortgage was afterwards, in 1903, foreclosed, and the land sold under the decree, in January, 1904, for about $2,000 more than the mortgage debt. Prior to the foreclosure of the mortgage a judgment was rendered in the Hancock circuit court in favor of Elizabeth Strickler, and against appellant and the heirs of Amos Strickler and the administrator, setting aside her election to take under the law rather than by the provisions of her husband's will. In these suits appellee was Elizabeth Strickler's attorney. These judgments are still in force. Elizabeth Strickler, under the terms of the deed, continued to live with appellant until in June, 1901, when, without any good and sufficient cause for so doing, she left, and has ever since remained away. The acts done by appellee of which complaint seems to be made are acts done by him as attorney for Elizabeth Strickler, and it is averred in many different ways that these acts were done maliciously and without probable cause, and that they were intended to and did vex, harass, and injure appellant in her person and property.

The complaint does not state a cause of action for malicious prosecution. It is well settled that in an action for malicious prosecution the pleading and proof must show that the prosecution was malicious, was without probable cause, and that it has terminated favorably to the present plaintiff. An action as for tort will lie where a criminal proceeding has been instituted without probable cause, and the motive in instituting it was malicious, and the prosecution has terminated in the acquittal or discharge of the accused. But the authorities are not agreed as to what cases are within the rule that an action may be maintained for the malicious institution of a civil suit. In some jurisdictions it is held that, if the person be not arrested or his property seized, the plaintiff is sufficiently punished by the payment of costs. See Cooley on Torts (2d Ed.) p. 217, and cases cited. But it is held in this state that the costs which the law gives a successful party are no adequate compensation for the time, trouble, and expense of defend

ing a malicious and groundless civil action. McCardle v. McGinley, 86 Ind. 538, 44 Am. Rep. 343. In Lockenour v. Sides, 57 Ind. 360, 26 Am. Rep. 58, the court quoted with approval from Closson v. Staples, 42 Vt. 209, 1 Am. Rep. 316, the following: "We are of opinion that when a civil suit is commenced, and prosecuted maliciously and without reasonable or probable cause, and is terminated in favor of the defendant, the plaintiff in such suit is liable to the defendant in an action on the case for the damages sustained by him in the defense of that original suit, in excess of the taxable costs obtained by him, and to maintain an action to recover such damages it is not material whether the malicious suit was commenced by process of attachment or by summons only." See Brand v. Hinchman, 68 Mich. 590, 36 N. W. 664, 13 Am. St. Rep. 362; Pope v. Pollock, 46 Ohio St. 367, 21 N. E. 356, 4 L. R. A. 255, 15 Am. St. Rep. 608; McPherson v. Runyon, 41 Minn. 524, 43 N. W. 392, 16 Am. St. Rep. 727; Antcliff v. June, 81 Mich. 477, 45 N. W. 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533; Fortman v. Rottier, 8 Ohio St. 548, 70 Am. Dec. 606.

The same circumstances must concur, whether the proceeding is civil or criminal; that is, the proceeding must have been instituted with malice, without probable cause,. and must have terminated in favor of the present complaining party. McCardle v. McGinley, supra; Lockenour v. Sides, supra; Newell, Malicious Prosecution, p. 39; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116. The two actions mentioned in the complaint as having been prosecuted against appellant are shown to have been successfully prosecuted. Appellant was unsuccessful in each. The complaint not only does not contain the necessary averment that the actions terminated favorably to the party plaintiff, but expressly shows that they terminated against her. See McCullough v. Rice, 59 Ind. 580; Steel v. Williams, 18 Ind. 161; Hays v. Blizzard, 30 Ind. 457; Gorrell v. Snow, 31 Ind. 215; Adams v. Bicknell, 126 Ind. 210, 25 N. E. 804, 22 Am. St. Rep. 576; Stark v. Bindley, 152 Ind. 182, 52 N. E. 804; Indiana Bicycle Co. v. Willis, 18 Ind. App. 525, 48 N. E. 646; Blucher v. Zonker, 19 Ind. App. 615, 49 N. E. 911; O'Brien v. Barry, 106 Mass. 300, 8 Am. Rep. 329; Doctor v. Riedel, 96 Wis. 158, 71 N. W. 119, 37 L. R. A. 580, 65 Am. St. Rep. 40.

It is claimed, also, that the complaint states a cause of action for malicious abuse of process. "If process, either civil or criminal, is willfully made use of for a purpose not justified by the law, this is abuse for which an action will lie. * * It is enough that the process was willfully abused to accomplish some unlawful purpose." Cooley on Torts (2d Ed.) 220, 221. It does not appear that any unlawful purpose was accomplished, or was sought to be accom

plished, in either of the actions mentioned in the complaint, or that the process was used to accomplish anything wrongful or illegal. In one case the widow was successful in having her election set aside, and in the other the process was used to collect a valid debt. It does not appear that the plaintiffs in these actions did anything or procured anything beyond what was strictly within their right; neither does it appear that any unlawful end was accomplished, nor that appellant was compelled to do anything which she could not legally be required to do, nor that anything was done under the process not warranted by its terms, nor that anything was done in excess of what was warranted. Nix v. Goodhill, 95 Iowa, 282, 63 N. W. 701, 58 Am. St. Rep. 434; Bartlett v. Christhilf, 69 Md. 219, 14 Atl. 518; Roby v. Labuzan, 21 Ala. 60, 56 Am. Dec. 237; Bradshaw v. Frazier, 113 Iowa, 579, 85 N. W. 752, 55 L. R. A. 258, 86 Am. St. Rep. 394, note p. 397; Granger v. Hill, 4 Bing. N. C. 212. It is true it is averred that appellee maliciously caused the process to be issued. As already stated, the things that were done were in their essence lawful. This being true, the fact that such things were done with malicious motives would not make them wrongful. "Any transaction," said Black, J., in Jenkins v. Fowler, 24 Pa. 308, "which would be lawful and proper, if the parties were friends, cannot be made the foundation of an action merely because they happened to be enemies. As long as a man keeps himself within the law by doing no act which violates it, we must leave his motives to Him who searches the heart." See Cooley on Torts (2d Ed.) 230; Chipley v. Atkinson, 23 Fla. 206, 1 South. 934, 11 Am. St. Rep. 370; Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 225, 54 Am. St. Rep. 882; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93; Doctor v. Riedel, 96 Wis. 158, 71 N. W. 119, 37 L. R. A. 580, 65 Am. St. Rep. 40; Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57, 11 E. R. A. 545, 34 Am. St. Rep. 165; Bourlier v. Macauley, 91 Ky. 135, 15 S. W. 60, 11 L. R. A. 550, 34 Am. St. Rep. 171; Guethler v. Altman, 26 Ind. App. 587, 60 N. E. 355, 84 Am. St. Rep. 313.

The complaint does not state a cause of action for deceit. The pleading does not show that appellee practiced any deceit against appellant, but that the deceit he is charged with having practiced was against Elizabeth Strickler. Whether Elizabeth Strickler has any cause to complain of appellee's conduct as her attorney is not presented in this case. It is not charged that appellee made any false or fraudulent representations to Elizabeth Strickler with the intent that appellant should act upon such representations, and that she did act upon them. If a party to an action is injured in his person or property by the deceit or collusion of his attorney, he has a right of ac

tion by statute. Section 984, Burns' Ann. St. 1901. But the facts pleaded do not make a case under this statute. See Cooley on Torts (2d Ed.) 577; Wells v. Cook, 16 Ohio St. 67, 88 Am. Dec. 436, note. Judgment affirmed.

(37 Ind. App. 402)

ST. JOSEPH COUNTY SAVINGS BANK OF SOUTH BEND v. RANDALL et al. (No. 5,578.)

(Appellate Court of Indiana. Division No. 1. March 6, 1906.)

ADMINISTRATORS-CLAIMS AGAINST ESTATEATTORNEY'S FEES.

Under Burns' Ann. St. 1901, § 2465, providing that no action shall be brought by complaint and summons against an administrator on a claim against the decedent, but the holder, whether the claim be due or not, shall file a statement thereof in the office of the clerk of the court in which the estate is pending, the payee of a note of a decedent which provides for the payment of attorney's fees is not entitled to attorney's fees where a claim on the note is filed before it is due or there has been any breach of condition.

Appeal from Circuit Court, Pulaski County; Wm. A. Foster, Special Judge.

Claim by the St. Joseph County Savings Bank of South Bend, Ind., against Arthur T. Randall and another, administrators of the estate of Jennie A. Gray. From a judgment in favor of the administrators, the claimant appeals. Affirmed.

M. Winfield, for appellant. Burson & Burson, for appellees.

MYERS, J. On June 22, 1904, appellant by Its attorney filed in the office of the clerk of the Pulaski circuit court its claim for $3,628.14 against the estate of Jennie A. Gray, deceased, represented by appellees. The claim is founded upon one principal promissory note for $3,500 and five interest or coupon notes for $175 each, all stipulating for attorney's fees and secured by mortgage on real estate. The notes are of date October 1, 1903, and neither of said notes were due at the time of filing the claim, nor was appellees' decedent in any manner or form in default of any of the stipulations of either of said notes. In July or August, 1904, appellees, as administrators, duly allowed on the proper docket kept by said clerk, and on account of the claim filed, $3,675; the same being the full face of said principal note and all interest due to October 1st. The item of attorney's fees, $193.34, included as a part of the claim filed, was not allowed. On September 8, 1904, appellees paid to the clerk of said court for appellant $3,675, who paid the same to appellant's attorney on September 12th, who accepted and receipted to the clerk therefor in part payment, at the same time directing the clerk, unless balance of claim was allowed or paid during that term of court, to transfer the same to the issue docket. The remainder of the claim was not allowed or paid and was by

the clerk transferred to the issue docket of such court. Issues were formed and a trial had before the court, resulting in a finding and judgment in favor of appellees.

By the errors here assigned, the question for decision is the right of appellant to collect from said estate its attorney's fees for filing its claim with the clerk of the Pulaski circuit court. By section 2465, Burns' Ann. St. 1901, it is provided that "no action shall be brought by complaint and summons against the executor or administrator of an estate for the recovery of any claim against the decedent, but the holder thereof, whether such claim be due or not, shall file a succinct and definite statement thereof in the office of the clerk of the court in which the estate is pending." This provision of the statute was in force at the time of the execution of the notes, and upon a familiar principle the law then applicable became an element of such contract. Pennsylvania Co. v. Clark, 2 Ind. App. 146, 27 N. E. 586. In the case at bar the claimant had the right to share in the distribution of the personal estate of the decedent, but in order to obtain this right it was required to file its claim as prescribed by statute. Cincinnati, etc., R. R. Co. v. Heaston, 43 Ind. 172; Beach v. Bell, 139 Ind. 167, 38 N. E. 819. And a failure to thus file its claim before final settlement of the estate would bar any right of action against the heirs, although they may have been recipients of a part of such estate. Stults' Adm'r v. Forst, 135 Ind. 297, 304, 34 N. E. 1125.

Another course was open to appellant, that of waiving its right to participate in the personal assets of the estate and look to its mortgage security for payment, in which event it would have been relieved of the necessity of filing its claim. Beach v. Bell, supra. It chose the remedy of filing its claim. This was its right given by law, and not on account of any breach on the part of the maker of the notes. By seeking payment from the administrator its right to share in the personal estate of the decedent was secured; but in order to be protected in these rights the law made it incumbent upon appellant to file its claim against the estate in the office of the clerk of the court in which the estate is pending. The expense necessary in preparing and presenting its claim to the clerk, appellant insists, is covered by the stipulation in the notes providing for attorney's fees. This insistence in our opinion is not well founded. The stipulation in the notes for attorney's fees is a contract of indemnity, and is effective only in case of a breach on the part of the maker, and by reason thereof the holder of the notes has necessarily incurred a liability for attorney's fees. Judson v. Romaine, 8 Ind. App. 390, 35 N. E. 912: Moore's Adm'x v. Staser, 6 Ind. App. 364, 32 N. E. 563, 33 N. E. 665; Rouyer's Adm'x v. Miller, 16 Ind. App. 519, 44 N. E. 51, 45 N. E. 674. In the case at bar there is no pretense of any breach on the part of the

maker of the notes of any of the stipulations therein contained, and without a breach the expenditure for attorney's fees was not on account of any fault of the maker or her representatives, and not therefore chargeable to her estate.

In our opinion the cost of preparing and presenting the claim of appellant to the clerk was a matter for the claimant, and any expenditure made by it in the way of attorney's fees is not covered by the clause in the note, "and attorney's fees." The undisputed facts in this case show that the claim was in no wise disputed, and was paid in full within a short time after it was filed, except that part demanding fees for its attorney.

Finding no error in the record, judgment is affirmed.

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A complaint, alleging that plaintiff's husband was indebted on a note upon which plaintiff and defendant's mother were sureties, and that to indemnify them plaintiff mortgaged certain land to them and afterwards made a deed to defendant as further indemnity, which deed was in fact a mortgage and was void by reason of plaintiff being a married woman, was founded upon the issue of suretyship, and not upon the deed; and hence it was not necessary to file a copy of the deed as an exhibit with the complaint.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 931, 932.] 2. APPEAL DEMURRER.

HARMLESS ERROR RULING ON

Error in sustaining a demurrer to a paragraph of the complaint cannot be regarded as harmless, on the ground that the same questions are presented by exceptions to the conclusions of law.

3. CANCELLATION OF INSTRUMENTS PLAINT-SUFFICIENCY.

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In a suit to cancel a deed, a paragraph alleging that plaintiff's husband was indebted on a note on which plaintiff and defendant's mother were sureties, and that to indemnify them plaintiff mortgaged the land to them and afterwards made the deed as further indemnity, and that the deed was in fact a mortgage and void by reason of plaintiff's being a married woman, stated a cause of action.

Appeal from Circuit Court, Scott County; Wm. Fitzgerald, Special Judge.

Action by Alice Warner against William L. Jennings. From a judgment for defendant, plaintiff appeals. Reversed.

L. A. Douglass and A. N. Munden, for appellant. Joseph H. Shea and Mark Storen, for appellee.

COMSTOCK, J. The complaint of appel. lant, a married woman, who was plaintiff below, was in three paragraphs. The first alleges that appellant made a deed for 140 acres of land to the appellee, and that by mutual agreement appellee was to hold the land and the rents and profits until they should

pay him a debt of $500 and interest, due from appellant to him; that he kept the land, and used the rents and profits, and paid himself the debt, but refused to reconvey the land. The second alleges that appellant was indebted to one John Hamilton in the said sum of $500, and appellee was her surety; that she deeded the land to him to indemnify him as such surety from any loss or damage, and to apply the rents and profits to repay himself the money,unless the land should be sold, in which event he was to share and have his pay out of the sale money; that he took possession of the rents and profits, and that defendant paid him in full, but that he refused to convey to appellant. In each of the above paragraphs, briefly stated, the court is asked to declare a deed a mortgage, have the same declared satisfied, and the land reconveyed. A demurrer to each was overruled. The third amended paragraph of the complaint in substance states that appellant was a married woman; that her husband owed a debt of $500 on a note, upon which appellee and Susanna Jennings, the mother of appellant, were sureties; that to indemnify them she mortgaged the land to them; that afterwards she made a deed to appellee for the land to further indemnify him from loss; that the said deed was in fact a mortgage, and it was void by reason of appellant's being a married woman. Prayer that the. deed be canceled, etc.

A demurrer to this paragraph was sustained. Appellee answered in five paragraphsthe first and second being general denials to the first and second paragraphs of the complaint; the third and fourth, the statute of limitations; fifth, that he purchased the real estate described in the complaint and paid full value thereof, to wit, the sum of $800, and received a warranty deed from the plaintiff and her husband on the 20th day of January, 1890, and immediately went into possession of said land, which possession he has held since said time, expending large sums of money in clearing said land and preparing it for farming purposes, has paid the taxes each year, and in paying interest on the original price of said land has paid more than he has received in rents and profits, etc. Appellee also filed a cross-complaint, alleging that he had purchased the real estate described in the complaint, and paid the full value thereof, and received a warranty deed from the plaintiff and her husband on the 20th day of January, 1890, and immediately went into possession thereof, which possession he has held, expending large sums of money in clearing said land and preparing it suitable for farming purposes; that he has each year paid taxes and has in this way expended, and in paying interest on the original piece of said land, more than he has received from the rents and profits therefrom; that the claim asserted by the plaintiff is a

cloud upon his title; and that if, upon a hearing of the cause, it should be determined by the court that said conveyance was made for the purpose of securing and indemnifying this cross-complainant for the said amount of money above set out, then this cross-complainant prays the court that said $800, with the interest thereon from the 20th day of January, 1890, at 8 per cent. per annum, together with the amount expended for taxes, be declared a lien thereon, etc.

The cause was put at issue upon the first and second paragraphs of the complaint, the answers and reply thereto, and the crosscomplaint and answer to the same. Upon proper request the court made a special finding of facts, stated conclusions of law, and rendered judgment thereon in favor of appellee, that he is the owner in fee simple of the real estate described in the complaint, and quieting his title thereto. Said findings and conclusions were filed in the Scott circuit court in vacation. The action of the court in sustaining the demurrer to the amended third paragraph of the complaint, in announcing the special findings of fact and conclusions of law in vacation, in filing the special findings and conclusions in vacation, and that said special findings and conclusions were never filed in court, are each specified as error.

It is contended by appellee that the said third paragraph of the complaint is fatally defective, because the deed which it seeks to have declared a mortgage is the foundation of the action and that no exhibit purporting to be a copy thereof is filed therewith. This position we think is not tenable. The gist and foundation of the paragraph is that appellant, a resident married woman, signed the note as surety. The issue of suretyship is not tendered by any other paragraph.

It is further contended that, even if it was error to sustain the demurrer, such error was harmless, because the same questions are presented by exceptions to the conclusions of law upon the special findings. The rule contended for does not apply in the case at bar, because the court held by its ruling on the demurrer that the facts set out, if proven, would not constitute a cause of action. Replogle v. American Insurance Co., 132 Ind. 368, 31 N. E. 947. The paragraph stated a cause of action. "Where a party duly excepts to the ruling on a demurrer which overthrows a valid pleading, he does not waive any rights by suffering the case to proceed to trial; nor is he bound to offer evidence on the subject covered by his pleading, for his exception to the ruling on the demurrer effectually asserts and preserves his rights."

No attempt is made to make the evidence a part of the record. The other specifications of error need not be considered.

Judgment reversed, with instructions to overrule appellant's demurrer to the third paragraph of the complaint.

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