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years,) so that he might know where and how to improve the same. Appellee Makeever remonstrated against such action being taken, upon the grounds, substantially, that the highway had not been so used, and that it was not upon the correct line, as fixed by the proceeding by the board of township trustees, etc. The order made by the county board in that proceeding is as follows: "And the board finds for the remonstrant, and refuses the prayer of the said petition." The superintendent filed what is called "a motion for a new trial." No action was taken upon that motion until the succeeding term of the board, at which time this order was made: "And the court, after due consideration, refuses the petitioner's motion for a new trial." If these orders, in any sense, amount to a judgment, they do not constitute such a judgment as will in any way tie up the hands of the county board to afterwards ascertain and make a record of the highway as established by 20 years' user. Nor do that proceeding, and the orders made therein, constitute such an adjudication as will stand in the way of appellant objecting to the making of the order asked by appellees in this proceeding. They are here asking, in effect, that the highway, as used, shall be so changed as to be upon a different line.

We cannot extend this opinion, which has already grown long, to elaborate or give more in detail the reasons of our holding upon this branch of the case. There ought not, we think, to be any misunderstanding as to the scope of the principal opinion. As there stated, the trial below. was confined to that portion of the highway which is in Newton township. The order for a new trial is therefore confined to that portion of the highway.

The petition for a rehearing is overruled.

(104 Ind. 223)

WRIGHT v. KLEYLA.

Filed December 11, 1885.

1. MARRIED WOMAN-STATUTE OF LIMITATIONS-COLOR OF TITLE. Although the separate deed of a married woman is void, it will neverthe less convey color of title, and the statute of limitations will begin to run against her from the time possession is asserted under it.

2. STATUTE OF LIMITATIONS.

The statute of limitations runs against all persons, whether under disability or not, unless excepted by some provision in the statute itself.

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A person under a legal disability has two years after the disability is removed in which to bring an action, although the full period prescribed by the statute has expired; but such a person is not entitled to have the time the statute begins to run fixed at the date of the removal of the disability. 4. SAME-TENANTS IN COMMON.

As between tenants in common, the statute begins to run from the time the tenant in possession ousts his co-tenant by asserting possession under a deed assuming to convey the entire estate.

Appeal from Tipton circuit court.

Fippen & Tipton, for appellant.

Waugh, Kemp, Gifford & Tipton, for appellee.

ELLIOTT, J. The facts stated in the special verdict are substantially these: In 1848 the appellant became the wife of Amasa P. Casler, and continued to occupy that relation until his death, in December, 1864. The land in controversy was conveyed to the appellant's husband in June 1852, and in November, 1854, was levied upon and sold to satisfy a judgment against him. In March, 1856, a deed was executed to one of the remote grantors of the appellee by the appellant, but in which her husband did not join. The deed of the appellant executed in March, 1856, was not effectual to convey title. It was, however, sufficient to convey color of title to the land described; for the grantor was not a stranger, but had some interest to convey. A void deed will convey color of title. Bell v. Longworth, 6 Ind. 273; Vancleave v. Millikin, 13 Ind. 105; Doe v. Hearick, 14 Ind. 242; Beauman v. Grubbs, 26 Ind. 419; Brenner v. Quick, 88 Ind. 546, see page 552. The appellee and his grantors have, therefore, been in possession under color of title since March, 1856; and as this action was not brought until April, 1884, it is barred by the 20-years statute, unless the fact that the appellant was under the disability of coverture until December, 1864, postponed the time when the statute began to run until that date.

Our opinion is that the disability of the appellant did not postpone the time when the statute began to run. The statute of limitations runs against all persons, whether under disability or not, unless they are excepted from its operation. Ang. Lim. pars. 476-485. A recent author says:

"The statute of limitations begins to run against a party immediately upon the accrual of a right of action, unless at that time he was under some of the disabilities named in the statute, and a saving or exception not found in the statute will not be implied." Wood, Lim. 495.

This doctrine was explicitly announced in Strong v. Makeever, 1 N. E. Rep. 502, (May term.) See opinion on petition for rehearing, ante, 11, (November 17, 1885.) A like doctrine has been announced in other cases. Breeding v. Shinn, 8 Ind. 126; Vancleave v. Millikin, supra; Frantz v. Harrow, Id. 507; Vail v. Halton, 14 Ind. 344; Gray v. Stiver, 24 Ind. 174; White v. Clawson, 79 Ind. 188; Wright v. Wright, 97 Ind. 444.

Our statute makes no exceptions. It is general in its terms, and operates upon all persons. It does, however, make special provision for persons under legal disability, but not by excepting them from its operation. The special provision which it makes is this: "Any person being under legal disability when the cause of action accrues, may bring his action within two years after the disability is removed." The effect of this provision is, not to change the time when the statute begins to run, in cases of persons under disability, but to allow them two years after the disability has been removed in which to bring an action. vision proceeds upon the theory that the statute runs from the time the cause of action accrues; and, proceeding on this theory, grants two years' time after the removal of the disability, although the full time may have expired. It does not grant 20 years to an infant after he becomes of age, v.4N.E.,no.1-2

The pro

nor does it grant that period to a married woman after the removal of the disability of coverture, but it does grant to persons under disability two years after the removal of their disability, although the statute may have been running for full 20 years. On the other hand, it does not cut down the 20 years; for, if the period of 20 years from the time the cause of action accrued has not expired, the party is entitled to the whole of the unexpired time in which to bring his action. To illustrate: Suppose 10 years to have expired at the time of the removal of the disability, then the party would have the unexpired period of 10 years in which to sue; but, if the full 20 years had expired, then 2 years after the removal of the disability would be all that would be allowed the party. It is only in cases where the period of 20 years has fully expired, or where 20 years would not carry the time 2 years beyond the removal of the disability, that the provision we have quoted has any practical effect. If the disability continues for much more than 20 years, the party is still entitled to the 2 years after its removal; but, if it is removed 2 years before the expiration of the 20 years, then 20 years from the time the cause of action accrued is the full period allowed the party. 1 Work, Pr. 271, and cases cited; Harris v. Rice, 66 Ind. 267. It is quite clear that the legislature enacted the provision we have quoted upon the theory that the statute begins to run from the time the cause of action accrues; for, upon any other theory, the provision is utterly meaningless. If it be true that the statute does not begin to run until the removal of the disability, then the limitation would be 20 years from that time, and the provision under immediate mention would be without the slightest force, and we should be compelled to disregard it. But the rule is that no clause of a statute shall be disregarded if it is possible to give it effect.

There is, however, not the slightest difficulty in giving full effect to the provision; for it is consistent with the theory of the law, and in harmony with all of the provisions of the statute of which it forms a part. In that statute it has a place, and courts have no right to render it ineffective, nor could they do it without producing confusion and discord where there is now a clear and harmonious system. The theory which gives consistency to the system, and full effect to the law, is that the statute begins to run from the time the cause of action accrues, but that until two years after the disability is removed its bar is not complete, no matter how long the disability may continue.

The cause of action accrued when the appellee's grantor took possession under the deed executed by the appellant in 1856. There was then an assertion of title to the entire estate, and this was such a denial of the right of the appellant as created a cause of action. Where one tenant in common asserts possession under a deed professing to convey the entire estate, he will be deemed to have ousted his co-tenant. Nelson v. Davis, 35 Ind. 474. The action was not brought within 2 years after the removal of the disability of the appellant, nor within 20 years after the right accrued, and it cannot be maintained.

It is nnnecessary to examine the sufficiency of the first paragraph of

the answer, for the record clearly shows that the judgment does not rest on that paragraph. It has been many times held that where the record affirmatively shows that the judgment is not upon a bad paragraph, and is on a good one, an error in overruling a demurrer to the bad paragraph is harmless. Judgment affirmed.

For a full discussion of the doctrine of the statute of limitations, see Perry Co. v. Railroad Co., 2 N.E. Rep. 854, and note, 857-869.

(104 Ind. 287)

STATE ex rel. NEFF v. FAUROTE and others.

Filed December 29, 1885.

ERROR-ASSIGNMENT OF ERRORS.

The assignment of errors constitutes an appellant's complaint in the supreme court, and where error is assigned "in overruling appellant's demurrer to the first, second, third, fourth, fifth, sixth, and seventh paragraphs" of a pleading, no question is presented as to the sufficiency of each particular paragraph separately considered, but it is enough, under such an assignment, if any one of the paragraphs is good.

Appeal from Henry circuit court.

D. S. Morgan and Hernley & Brown, for appellant.

New & Jones, for appellees.

Howк, J. The relator of the appellant, the plaintiff below, has assigned the following error upon the record of this cause, namely:

"The court erred in overruling plaintiff's (appellant's) demurrer to the first, second, third, fourth, fifth, sixth, and seventh paragraphs of the separate answer of the appellees hercin, David M. Brown, John B. Guerin, William H. Lewis, John H. Craynor, George B. Morris, Daniel B. Canaday, and Frank J. Hall."

This assignment of error is joint as to all the paragraphs of answer enumerated therein. It does not call in question the sufficiency or insufficiency of any one of the several paragraphs of answer. But it presents for our decision this single question: Did the trial court err in overruling appellant's demurrer to all the enumerated paragraphs of answer as an entirety? If all of such paragraphs were bad, the court clearly erred in overruling the demurrer thereto, and the error quoted is well assigned, and the judgment below must be reversed. But if any one or more of such paragraphs of answer were sufficient to withstand the relator's demurrer, it is equally clear that the ruling assigned here as error is not well assigned, and the judgment below must be affirmed. This is so, even though some of the paragraphs of answer, if considered separately, might seem to be clearly insufficient. Ketcham v. Barbour, 102 Ind. 576.

It is certain that the court committed no error in the ruling complained of in appellant's assignment of error, because paragraphs 3 and 4 of appellees' answer were sufficient, beyond all room for doubt, to withstand the demurrer thereto for the want of facts. Paragraph 3 of such answer was a general denial of each and every allegation in the relator's

complaint; and in paragraph 4 the appellees alleged that the relator's claim " was fully paid and satisfied long before the institution of this cause." These two of the seven paragraphs of appellees' answer were good on demurrer, and therefore the ruling of which appellant complains in the assignment of error above quoted, was clearly right, and the judg ment below must be affirmed.

If the record of this cause clearly showed that appellant had separately demurred to each of the seven paragraphs of appellees' answer, and that, as to some of such paragraphs, the separate demurrers had been erroneously overruled, such erroneous rulings would not be available to appellant's relator for the reversal of the judgment below, simply because he has not assigned such rulings here as errors. It is settled by our decisions that the appellant's assignment of errors constitutes his complaint in this court; and that to the errors there assigned the appellee is only required to answer, either in pleading or in argument. We have often held that the assignment of errors is the foundation of the appellant's proceedings here for the reversal of the judgment below, and that we will neither consider nor decide any question which is not fairly presented by the assignment of errors. Hartlep v. Cole, 94 Ind. 513; Ketcham v. Barbour, supra; Indianapolis, B. & W. Ry. Co. v. Maddy, 2 N. E. Rep. 574. The judgment is affirmed, with costs.

(104 Ind. 293)

LAKE SHORE & M. S. RY. Co. v. FOSTER.

Filed December 29, 1885.

1. DEMURRER TO THE EVIDENCE-WHAT IT ADMITS.

A demurrer to the evidence admits all facts which the evidence tends to prove, and all inferences that can be logically and reasonably drawn therefrom; and in determining this, the evidence of the party demurring is not to be considered, nor can he take advantage of any conflict in the evidence, but forced and violent inferences are not admitted.

2. PRINCIPAL AND AGENT-RESTRICTIONS ON AGENT'S APPARENT AUTHORITY – WHEN NOT BINDING ON THIRD PERSONS.

Restrictions upon an agent's apparent authority are not binding upon third persons, where there is nothing to put them upon inquiry as to the extent of his actual authority.

3. CARRIER OF PASSENGERS-LIABILITY FOR BAGGAGE LOST BEFORE TRAIN-TIME. Where a railroad company receives a trunk as baggage, upon the express or implied understanding that the owner is to become a passenger, it is liable for the loss of such baggage before transit, although the owner had neither purchased a ticket nor paid fare at the time of the loss.

4. SAME DELIVERY TO AGENT-ACCEPTANCE.

In an action against a railway company to recover damages for the loss of a trunk, plaintiff's evidence showed that she had sent her trunk to the depot in the evening, as she had done once before, with the intention of taking the early morning train; that, after the trunk had been placed upon the platform near the baggage-room door, the express-man, who was acting as her agent, said to the baggage-man: "Here is a trunk for No. 5; put it in the baggageroom," and the baggage-man answered: "No; leave it out there; it will be all right;" and that when the plaintiff came down to the train in the morning and purchased her ticket, the trunk was missing. Held, on demurrer to the evidence, that the evidence tended to show a delivery of the trunk to the company's agent as baggage, and an acceptance by him, and that the company was liable for its loss.

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