Frazer v. State

• Decision Date: 24 May 1886
• Citation: 106 Ind. 471,7 N.E. 203
• Parties: Frazer, Trustee, etc., v. State, for Use, etc.
• Court: Indiana Supreme Court

106 Ind. 471

7 N.E. 203

Frazer, Trustee, etc.,

v.State, for Use, etc.

Supreme Court of Indiana.

May 24, 1886.

Appeal from Hamilton circuit court.

R. Graham, for appellant.

Neal & Neal, for appellee.

Howk, C. J.

The first error of which complaint is here made on behalf of the appellant is the overruling of his demurrer to appellee's complaint. The suit was brought on April 17, 1885, to collect certain assessments made in certain drainage proceedings instituted in the circuit court of Hamilton county on January 24, 1883, by one Levi Huber, on certain described real estate alleged to be “lands of the defendant,” and to foreclose an alleged lien on such real estate and sell the same, or so much thereof as might be necessary to satisfy the appellee's demand. The real estate mentioned in appellee's complaint was assessed for benefits, in the name of the Franklin Life Insurance Company, a corporationorganized under the laws of this state, whereof the appellant was alleged to be “the appointed, qualified, and acting trustee.” With such complaint the appellee filed a copy of the original assessment made by the three commissioners of drainage, to whom Levi Huber's petition for the drain described therein was referred by the court, and by them returned into court as a part of their report. Appellant, Frazer, demurred to appellee's complaint, upon two grounds, namely: (1) That such complaint does not state facts sufficient to constitute a cause of action; and (2) that there was a defect of parties plaintiff, as shown by such complaint.

Under the first ground of demurrer, appellant's counsel first insists that the description of the real estate assessed in the name of the Franklin Life Insurance Company, as found in the copy of the assessment of benefits and damages, which is filed with and made part of the complaint, is wholly insufficient. Counsel says: “There is no intelligent description of any tract of land, and no description given, that would enable an officer, or any other person, to locate any of the several tracts of land.” In such assessment the tracts of land assessed in the name of such insurance company are thus described: “S. W. 1/4 N. W. 1/4 S. 8, T. 19, R. 5, 40 A.; and S. E. 1/4 N. W. 1/4 S. 8, T. 19, R. 5, 40 A.” In Jordan Ditching, etc., Ass'n v. Wagoner, 33 Ind. 50, a similar objection was made to a similar description of land in a drainage assessment, and of such objection the court there said: “It is sufficient to say that the description would be good in a deed or mortgage, the abbreviations being as well understood in this state as the words for which they stand.” Etchison, etc., Ass'n v. Jarrell, 33 Ind. 131. There is no substance in this objection.

But it is further objected that the description of the lands in such assessment is fatally defective because there is no indication, in the assessment, in what county or state such lands are located. This objection is not well taken. The assessment was made by the commissioners of drainage of Hamilton county, under an order of the circuit court of such county, and it was reported to and was confirmed by such court. The presumption is, therefore, that the lands are located in Hamilton county, and this presumption must prevail and be indulged until the contrary is shown.

Under the second ground of demurrer, appellant's counsel claims, as we understand him, that there is a defect of parties plaintiff because the complaint fails to show that Ingerman, for whose use the suit was brought, was the commissioner of drainage to whom the court referred the construction of the proposed ditch or drain. The complaint shows that the construction of such ditch or drain was referred by the court to one James A. McMullen, who was at the time one of the...