« AnteriorContinuar »
was foreclosed against lot 114. The last of , street had been paid but three, and appelthe 10 installments for the Locust street im- | lant testifies that the representations to him provement would have become due and were that these were all there were to pay. payable in 1904 in the sum of $20.67, the We think the court was authorized to con. ninth installment due in 1903 in the sum of clude from all the evidence that the parties $21.84, and the eighth installment in 1902 in intended by the deed that appellant was to the sum of $23.01. The amount paid by the pay installments for street assessments after sheriff to the city treasurer in satisfaction 1901. Lot 116 was not secondarily liable for of the assessment against lot 114 was $226.46, the Second street improvement, but was secondwhich was the net proceeds from the sale of arily liable for the Locust street improvement. lots 114, 115, and 116. At the time of the If lots 114 and 115 did not sell for an amount foreclosure and sale none of the installments sufficient to pay for the improvement of of the assessment against lot 114 had been Locust street, then lot 116 became liable. paid, except the first one, due in 1895, in the Under the evidence and the construction the sum of $31.20.
court was authorized to place upon the clause The act under which the street was im
in the deed we do not think it can be said proved fixes a lien for any unpaid balance that the court was not authorized in finding upon property secondarily liable. If lot 114 that there had been no breach of the covewas insufficient to satisfy the assessment, it nant in the deed. did not require any separate assessment to Judgment affirmed. fix a lien for the unpaid balance upon adjacent lots lying within the statutory limit.
137 Ind. App. 423) Cleveland, etc., R. Co. v. Edward C. Jones
WHITESELL V. STUDY. Co., 20 Ind. App. 87, 50 N. E. 319. That is, when the deed was made by appellees, the
(Appellate Court of Indiana, Division No. 1. assessment had been made, and the lien ex
March 7, 1906.) isted, conditionally, against lot 116. The
1. MALICIOUS PROSECUTION-GROUNDS OF AC
TIOX. amount appellant claims he was compelled to Malicious prosecution will not lie unless pay was not an assessment made after the the prosecution was malicious, was without execution of the deed, but it was the amount probable cause, and terminated in an acquittal. of certain installments of an assessment
| (Ed. Note.—For cases in point, see vol. 33,
Cent. Dig. Malicious Prosecution, $$ 18, 59, 71.) made before the deed was executed. Cer
2. SAME-CIVIL ACTION-DAMAGES. tain of these installments became due after
When a civil suit is prosecuted maliciously the deed was executed.
and without reasonable or probable cause, and It would not have been necessary for the is terminated in favor of the defendant, plaintiff
is liable to defendant for the damages sustained parties to insert in the deed a provision that
by him in the defense of the original suit, in ex. the grantee should pay assessments for street
cess of the taxable costs obtained by him, and improvements made after the execution of to maintain suit for such damages it is not the deed. And the fact that the deed was
material whether the malicious suit was com. made on January 6, 1902, must be consider
menced by process of attachment or by sum
mons only. ed along with all the other facts and circum
[Ed. Note.-For cases in point, see vol. 33, stances, in determining whether the parties Cent. Dig. Malicious Prosecution, 88 16, 154 intended that the grantee should pay only 158.] such assessments for street improvements 3. PROCESS-ABUSE-MALICE. as were made after 1901, or such assessments The fact that defendant maliciously caused for street improvements already made that
the issuance of process against plaintiff gave
no cause of action for abuse of process, where might become due and payable after 1901.
the issuance was within defendant's rights. When the deed was made, the assessment, [Ed. Note.--For cases in point, see vol. 40, and when and how the same was to be paid, Cent. Dig. Process, $ 257.] were matters of record. Three of the in
Appeal from Circuit Court, Wayne County; stallments would not become due until after
Wm. O. Barnard, Special Judge. the date of the deed. Appellant testified, in
Action by Elmira J. Whitesell against answer to the question whether he knew at
Thomas J. Study. From a judgment susthe time he purchased "that there were
taining a demurrer to the complaint, comsome street assessments against the lots that were unpaid," answered, "Yes; there were
plainant appeals. Affirmed. three on Second street.” He further testi Saml. C. Whitesell, for appellant. Thos. fied: “The representation to me was that | J. Study and B. F. Mason, for appellee. was all there was to pay.” That he went to the treasurer's office to see. That he did not ROBINSON, J. A demurrer for want of look for any assessment for the improvement facts was sustained to appellant's amended of Locust street. His understanding was complaint, and on her refusal to plead furthe lot was clear. That the vendor was to ther judgment for appellee was rendered furnish an abstract, but that he did not The complaint is very long, and it is diffiexact it.
cult to tell upon what theory the pleader inIt seems from the evidence that, when the tended to proceed. Counsel for appellant deed was made, all the installments for the claims in his brief that the complaint states assessment for the improvement of Second I a cause of action for damages for malicious prosecution, for abuse of process, and for | ing a malicious and groundless civil action. deceit. Amos Strickler died October 23, 1899, McCardle v. McGinley, 86 Ind. 538, 44 Am. seised of certain land. Appellant, a daughter Rep. 343. In Lockenour V. Sides, 57 Ind. of Amos Strickler, afterward, in March, 360, 26 Am. Rep. 58, the court quoted with 1900, purchased at administrator's sale the approval from Closson v. Staples, 42 Vt. 209, undivided two-thirds of the land, and Eliza 1 Am. Rep. 316, the following: “We are of beth Strickler, the widow of Amos Strickler, opinion that when a civil suit is commenced, conveyed the undivided one-third of the land and prosecuted maliciously and without reato appellant for the consideration stated in sonable or probable cause, and is terminated the deed, which was made a charge on the in favor of the defendant, the plaintiff in land, that appellant, her daughter, should such suit is liable to the defendant in an provide her a home, the necessaries and com- | action on the case for the damages sustained forts of life, and have her expenses of sick by him in the defense of that original suit, ness and funeral expenses paid. Appellant in excess of the taxable costs obtained by borrowed the money to pay for the two-thirds, him, and to maintain an action to recover and executed a mortgage on the land to se such damages it is not material whether the cure the loan, in which mortgage Elizabeth malicious suit was commenced by process of Strickler joined. The mortgage was after attachment or by summons only." See wards, in 1903, foreclosed, and the land sold Brand v. Hinchman, 68 Mich. 590, 36 N. W. under the decree, in January, 1904, for about i 664, 13 Am. St. Rep. 362; Pope v. Pollock, 46 $2,000 more than the mortgage debt. Prior Ohio St. 367, 21 N. E. 356, 4 L. R. A. 255, 15 to the foreclosure of the mortgage a judg Am. St. Rep. 608; McPherson v. Runyon, 41 ment was rendered in the Hancock circuit Minn. 524, 43 N. W. 392, 16 Am. St. Rep. court in favor of Elizabeth Strickler, and 727; Antcliff v. June, 81 Mich. 477, 45 N. W. against appellant and the heirs of Amos 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533; Strickler and the administrator, setting aside Fortman y. Rottier, 8 Ohio St. 548, 70 Am. her election to take under the law rather Dec. 606. than by the provisions of her husband's will. The same circumstances must concur, In these suits appellee was Elizabeth Strick- | whether the proceeding is civil or criminal; ler's attorney. These judgments are still in that is, the proceeding must have been instiforce. Elizabeth Strickler, under the terms tuted with malice, without probable cause, . of the deed, continued to live with appellant and must have terminated in favor of the until in June, 1901, when, without any good present complaining party. McCardle v. MCand sufficient cause for so doing, she left, Ginley, supra; Lockenour V. Sides, supra ; and has ever since remained away. The acts Newell, Malicious Prosecution, p. 39; Stewart done by appellee of which complaint seems v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116. to be made are acts done by him as attorney The two actions mentioned in the complaint for Elizabeth Strickler, and it is averred in as having been prosecuted against appellant many different ways that these acts were are shown to have been successfully prosedone maliciously and without probable cause, cuted. Appellant was unsuccessful in each. and that they were intended to and did vex, | The complaint not only does not contain the harass, and injure appellant in her person necessary averment that the actions terminatand property.
ed favorably to the party plaintiff, but exThe complaint does not state a cause of pressly shows that they terminated against action for malicious prosecution. It is well her. See McCullough v. Rice, 59 Ind. 580; settled that in an action for malicious prose Steel v. Williams, 18 Ind. 161; Hays v. Blizcution the pleading and proof must show that | zard, 30 Ind. 457; Gorrell v. Snow, 31 Ind. the prosecution was malicious, was without | 215; Adams v. Bicknell, 126 Ind. 210, 25 N. probable cause, and that it has terminated E. 804, 22 Am. St. Rep. 576; Stark v. Bind. favorably to the present plaintiff. An action ley, 152 Ind. 182, 52 N. E. 804; Indiana as for tort will lie where a criminal proceed Bicycle Co. v. Willis, 18 Ind. App. 525, 48 ing has been instituted without probable N. E. 646; Blucher v. Zonker, 19 Ind. App. cause, and the motive in instituting it was 615, 49 N. E, 911; O'Brien v. Barry, 106 Mass. malicious, and the prosecution has terminato 300, 8 Am. Rep. 329; Doctor v. Riedel, 96 ed in the acquittal or discharge of the ac Wis. 158, 71 N. W. 119, 37 L. R. A. 580, 65 cused. But the authorities are not agreed Am. St. Rep. 40. as to what cases are within the rule that It is claimed, also, that the complaint states an action may be maintained for the mali. a cause of action for malicious abuse of procious institution of a civil suit. In some cess. “If process, either civil or criminal, jurisdictions it is held that, if the person be is willfully made use of for a purpose not not arrested or his property seized, the plain justified by the law, this is abuse for which tiff is sufficiently punished by the payment of an action will lie. * * * It is enough costs. See Cooley on Torts (2d Ed.) p. 217, that the process was willfully abused to acand cases cited. But it is held in this state complish some unlawful purpose.” Cooley that the costs which the law gives a suc on Torts (2d Ed.) 220, 221. It does not apcessful party are no adequate compensation | pear that any unlawful purpose was acfor the time, trouble, and expense of defend. I complished, or was sought to be accom
plished, in either of the actions mentioned i tion by statute. Section 984, Burns' Ann. in the complaint, or that the process was St. 1901. But the facts pleaded do not make used to accomplish anything wrongful or a case under this statute. See Cooley on illegal. In one case the widow was success Torts (2d Ed.) 577; Wells v. Cook, 16 Ohio ful in having her election set aside, and in St. 67, 88 Am. Dec. 436, note, the other the process was used to collect al Judgment affirmed, valid debt. It does not appear that the plaintiffs in these actions did anything or procured anything beyond what was strictly
(37 Ind. App. 402)
ST. JOSEPH COUNTY SAVINGS BANK within their right; neither does it appear
OF SOUTH BEND V. RANDALL that any unlawful end was accomplished, por
et al. (No. 5,578.) that appellant was compelled to do anything which she could not legally be required to
(Appellate Court of Indiana, Division No. 1
March 6, 1906.) do, nor that anything was done under the
ADMINISTRATORS-CLAIMS AGAINST ESTATEprocess not warranted by its terms, nor that
ATTORNEY'S FEES. anything was done in excess of what was Under Burns' Ann. St. 1901, § 2465, prowarranted. Nix V. Goodhill, 95 Iowa, 282, viding that no action shall be brought by com63 N. W. 701, 58 Am. St. Rep. 434; Bartlett
plaint and summons against an administrator
on a claim against the decedent, but the holder, v. Christhilf, 69 Md. 219, 14 Atl. 518; Roby
whether the claim be due or not, shall file a V. Labuzan, 21 Ala. 60, 56 Am. Dec. 237; statement thereof in the office of the clerk of Bradshaw v. Frazier, 113 Iowa, 579, 85 N. the court in which the estate is pending, the
payee of a note of a decedent which provides W. 752, 55 L. R. A. 258, 86 Am. St. Rep. 394,
for the payment of attorney's fees is not entitl. note p. 397; Granger v. Hill, 4 Bing. N. C.
ed to attorney's fees where a claim on the note 212. It is true it is averred that appellee
is filed before it is due or there has been any maliciously caused the process to be issued.
breach of condition. As already stated, the things that were done
Appeal from Circuit Court, Pulaski County ; were in their essence lawful. This being
Wm. A. Foster, Special Judge. true, the fact that such things were done Claim by the St. Joseph County Savings with malicious motives would not make them Bank of South Bend, Ind., against Arthur T. wrongful. “Any transaction," said Black,
Randall and another, administrators of the J., in Jenkins v. Fowler, 24 Pa. 308, "which estate of Jennie A. Gray. From a judgment would be lawful and proper, if the parties in favor of the administrators, the claimant were friends, cannot be made the founda appeals. Affirmed. tion of an action merely because they happen
M. Winfield, for appellant. Burson & ed to be enemies. As long as a man keeps
Burson, for appellees. 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
MYERS, J. On June 22, 1904, appellant by
Its attorney filed in the office of the clerk of Torts (2d Ed.) 230; Chipley V. Atkinson, 23 Fla. 206, 1 South. 934, 11 Am. St. Rep.
the Pulaski circuit court its claim for 370; Raycroft v. Tayntor, 68 Vt. 219, 35 Atl.
$3,628.14 against the estate of Jennie A. Gray, 53, 33 L. R. A. 225, 54 Am. St. Rep. 882;
deceased, represented by appellees. The claim Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep.
is founded upon one principal promissory note
for $3,500 and five interest or coupon notes 93; Doctor v. Riedel, 96 Wis. 158, 71 N. W. 119, 37 L. R. A. 580, 65 Am. St. Rep. 40;
for $175 each, all stipulating for attorney's
fees and secured by mortgage on real estate. Chambers v. Baldwin, 91 Ky. 121, 15 S. W.
The notes are of date October 1, 1903, and 57, 11 E. R. A. 545, 34 Am. St. Rep. 165;
neither of said notes were due at the time Bourlier v. Macauley, 91 Ky. 135, 15 S. W.
of filing the claim, nor was appellees' dece 60, 11 L. R. A. 550, 34 Am. St. Rep. 171 ;
dent in any manner or form in default of any Guethler v. Altman, 26 Ind. App. 587, 60 N.
of the stipulations of either of said notes. E. 355, 84 Am. St. Rep. 313.
In July or August, 1904, appellees, as adminThe complaint does not state a cause of
istrators, duly allowed on the proper docket action for deceit. The pleading does not
kept by said clerk, and on account of the claim show that appellee practiced any deceit ! Aled. $3.675. the same
filed, $3,675; the same being the full face of against appellant, but that the deceit he is
said principal note and all interest due to charged with having practiced was against October 1st. The item of attorney's fees, Elizabeth Strickler. Whether Elizabeth
$193.34, included as a part of the claim filed, Strickler has any cause to complain of ap
was not allowed. On September 8, 1904, ap pellee's conduct as her attorney is not pre pellees paid to the clerk of said court for sented in this case. It is not charged that appellant $3,675, who paid the same to apappellee made any false or fraudulent repre
pellant's attorney on September 12th, who sentations to Elizabeth Strickler with the in accepted and receipted to the clerk therefor in tent that appellant should act upon such part payment, at the same time directing the representations, and that she did act upon clerk, unless balance of claim was allowed or them. If a party to an action is injured paid during that term of court, to transfer the in his person or property by the deceit or col same to the issue docket. The remainder of lusion of his attorney, he has a right of ac- | the claim was not allowed or paid and was by
the clerk transferred to the issue docket of 1 maker of the notes of any of the stipulations such court. Issues were formed and a trial therein contained, and without a breach the had before the court, resulting in a finding expenditure for attorney's fees was not on and judgment in favor of appellees.
account of any fault of the maker or her By the errors here assigned, the question representatives, and not therefore chargeable for decision is the right of appellant to collect to ber estate. from said estate its attorney's fees for filing In our opinion the cost of preparing and its claim with the clerk of the Pulaski circuit presenting the claim of appellant to the clerk court. By section 2465, Burns' Ann. St. 1901, was a matter for the claimant, and any exit is provided that "no action shall be penditure made by it in the way of attorney's brought by complaint and summons against fees is not covered by the clause in the note, the executor or administrator of an estate "and attorney's fees.” The undisputed facts for the recovery of any claim against the de in this case show that the claim was in no cedent, but the holder thereof, whether such . wise disputed, and was paid in full within a claim be due or not, shall file a succinct and short time after it was filed, except that part definite statement thereof in the office of the demanding fees for its attorney. clerk of the court in which the estate is Finding no error in the record, judgment is pending." This provision of the statute was affirmed. 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
(37 Ind. App. 394) contract. Pennsylvania Co. v. Clark, 2 Ind. WARNER V. JENNINGS. (No. 5,652.) App. 146, 27 N. E. 586. In the case at bar (Appellate Court of Indiana, Division No. 2. the claimant had the right to share in the
Feb. 23, 1906.) distribution of the personal estate of the 1. PLEADING - EXHIBITS - FOUNDATION OF decedent, but in order to obtain this right it ACTION. was required to file its claim as prescribed by
A complaint, alleging that plaintiff's hus
band was indebted on a note upon which plainstatute. Cincinnati, etc., R. R. Co. v. Heaston,
tiff and defendant's mother were sureties, and 43 Ind. 172; Beach v. Bell, 139 Ind. 167, 38 that to indemnify them plaintiff mortgaged cerN. E. 819. And a failure to thus file its claim
tain land to them and afterwards made a deed
to defendant as further indemnity, which deed before final settlement of the estate would
was in fact a mortgage and was void by reason bar any right of action against the heirs, of plaintiff being a married woman, was foundalthough they may have been recipients of a ed upon the issue of suretyship, and not upon part of such estate. Stults' Adm'r v. Forst,
the deed ; and hence it was not necessary to file
a copy of the deed as an exhibit with the com135 Ind. 297, 304, 34 N. E. 1125.
plaint. Another course was open to appellant, that [Ed. Note.—For cases in point, see vol. 39, of waiving its right to participate in the per Cent. Dig. Pleading, 88 931, 932.) sonal assets of the estate and look to its 2. APPEAL - HARMLESS ERROR - RULING ON mortgage security for payment, in which
DEMURRER. event it would have been relieved of the
Error in sustaining a demurrer to a para
graph of the complaint cannot be regarded as necessity of filing its claim. Beach v. Bell,
harmless, on the ground that the same questions supra. It chose the remedy of filing its claim. are presented by exceptions to the conclusions This was its right given by law, and not on
of law. account of any breach on the part of the
3. CANCELLATION OF INSTRUMENTS - COM.
PLAINT-SUFFICIENCY maker of the notes. By seeking payment
In a suit to cancel a deed, a paragraph alfrom the administrator its right to share in leging that · plaintiff's husband was indebted the personal estate of the decedent was on a note on which plaintiff and defendant's secured ; but in order to be protected in these
mother were sureties, and that to' indemnify
them plaintiff mortgaged the land to them and rights the law made it incumbent upon ap afterwards made the deed as further indemnity, pellant to file its claim against the estate in and that the deed was in fact a mortgage and the office of the clerk of the court in which
void by reason of plaintiff's being a married the estate is pending. The expense necessary
woman, stated a cause of action. in preparing and presenting its claim to the
· Appeal from Circuit Court, Scott County; clerk, appellant insists, is covered by the
Wm. Fitzgerald, Special Judge. stipulation in the notes providing for attor
Action by Alice Warner against William ney's fees. This insistence in our opinion is
L. Jennings. From a judgment for defendnot well founded. The stipulation in the ant, plaintiff appeals. Reversed. notes for attorney's fees is a contract of in L. A. Douglass and A. N. Munden, for apdemnity, and is effective only in case of a pellant. Joseph H, Shea and Mark Storen, breach on the part of the maker, and by rea for appellee. son thereof the holder of the notes has necessarily incurred a liability for attorney's COMSTOCK, J. The complaint of appel. fees. Judson v. Romaine, 8 Ind. App. 390, 35 | lant, a married woman, who was plaintiff beN. E. 912; Moore's Adm'x v. Staser, 6 Ind. low, was in three paragraphs. The first alApp. 364, 32 N. E. 563, 33 N. E. 665; Rouyer's leges that appellant made a deed for 140 Adm'x v. Miller, 16 Ind. App. 519, 44 N. E. 51, acres of land to the appellee, and that by mu45 N. E. 674. In the case at bar there is no tual agreement appellee was to hold the land pretense of any breach on the part of the l and the rents and profits until they should pay him a debt of $500 and interest, due from, cloud upon his title; and that if, upon a appellant to him; that he kept the land, and hearing of the cause, it should be determined used the rents and profits, and paid himself the by the court that said conveyance was made debt, but refused to reconvey the land. The sec for the purpose of securing and indemnify. ond alleges that appellant was indebted to ing this cross-complainant for the said amount one John Hamilton in the said sum of $500, of money above set out, then this cross-comand appellee was her surety; that she deed plainant prays the court that said $800, with ed the land to him to indemnify him as such the interest thereon from the 20th day of Jansurety from any loss or damage, and to apply | uary, 1890, at 8 per cent. per annum, together the rents and profits to repay himself the with the amount expended for taxes, be demoney,unless the land should be sold, in clared a lien thereon, etc. which event he was to share and have his The cause was put at issue upon the first pay out of the sale money; that he took and second paragraphs of the complaint, the possession of the rents and profits, and that l. answers and reply thereto, and the crossdefendant paid him in full, but that he re- complaint and answer to the same. Upon fused to convey to appellant. In each of the proper request the court made a special find. abave paragraphs, briefly stated, the court ing of facts, stated conclusions of law, and is asked to declare a deed a mortgage, have rendered judgment thereon in favor of appelthe same declared satisfied, and the land lee, that he is the owner in fee simple of the reconveyed. A demurrer to each was over- | real estate described in the complaint, and ruled. The third amended paragraph of the quieting his title thereto. Said findings and complaint in substance states that appellant conclusions were filed in the Scott circuit was a married woman; that her husband court in vacation. The action of the court in owed a debt of $500 on a note, upon which sustaining the demurrer to the amended third appellee and Susanna Jennings, the mother paragraph of the complaint, in announcing of appellant, were sureties; that to indem the special findings of fact and conclusions of nify them she mortgaged the land to them; law in vacation, in filing the special findings that afterwards she made a deed to appellee and conclusions in vacation, and that said for the land to further indemnify him from special findings and conclusions were never loss; that the said deed was in fact a mort filed in court, are each specified as error. gage, and it was void by reason of appellant's It is contended by appellee that the said being a married woman. Prayer that the third paragraph of the complaint is fatally deed be canceled, etc.
defective, because the deed which it seeks A demurrer to this paragraph was sustain: to have declared a mortgage is the foundation ed. Appellee answered in five paragraphs of the action and that no exhibit purporting the first and second being general denials to to be a copy thereof is filed therewith. This the first and second paragraphs of the com position we think is not tenable. The gist plaint; the third and fourth, the statute of) and foundation of the paragraph is that aplimitations; fifth, that he purchased the real pellant, a resident married woman, signed the estate described in the complaint and paid note as surety. The issue of suretyship is full value thereof, to wit, the sum of $800, not tendered by any other paragraph. and received a warranty deed from the plain It is further contended that, even if it was tiff and her husband on the 20th day of Jan error to sustain the demurrer, such error was uary, 1890, and immediately went into pos harmless, because the same questions are presession of said land, which possession he sented by exceptions to the conclusions of has held since said time, expending large law upon the special findings. The rule consums of money in clearing said land and pre- tended for does not apply in the case at bar, beparing it for farming purposes, has paid the cause the court held by its ruling on the detaxes each year, and in paying interest | murrer that the facts set out, if proven, would on the original price of said land has paid | not constitute a cause of action. Replogle v. more than he has received in rents and prof. American Insurance Co., 132 Ind. 368. 31 its, etc. Appellee also filed a cross-complaint, N. E. 947. The paragraph stated a cause alleging that he had purchased the real es of action. “Where a party duly excepts to tate described in the complaint, and paid the the ruling on a demurrer which overthrows full value thereof, and received a warranty a valid pleading, he does not waive any rights deed from the plaintiff and her husband on by suffering the case to proceed to trial; nor the 20th day of January, 1890, and immedi. | is he bound to offer evidence on the subject ately went into possession thereof, which pos- covered by his pleading, for his exception session he has held, expending large sums of to the ruling on the demurrer effectually money in clearing said land and preparing it | asserts and preserves his rights." suitable for farming purposes; that he has No attempt is made to make the evidence each year paid taxes and has in this way, a part of the record. The other specificaexpended, and in paying interest on the origi- ' tions of error need not be considered. nal piece of said land, more than he has re Judgment reversed with instructions to ceived from the rents and profits therefrom; overrule appellant's demurrer to the third that the claim asserted by the plaintiff is a paragraph of the complaint.