Ingerman, Drainage Commissioner, v. The State, ex rel. Conroy. of a contract, but we can not agree that this is simply an action to recover upon a contract. We regard the case as one of a radically different character. The case is that of a ministerial officer, with money in his hands, which it is his duty to pay to the party entitled to it under the law. The fund in the appellant's hands was derived from an assessment made for a specific purpose, and the relator, as the contractor who constructed the ditch for which the assessments were levied, has a right to compel the appellant to distribute to him the fund as the law directs. The case before us falls within the rule that a ministerial officer who has in his hands a specific fund may be compelled by mandamus to make lawful distribution of the fund. Portland Stone- Ware Co. v. Tayler (R. I.), 19 Atl. R. 1086; Board, etc., v. People, ex rel., 24 Ill. App. 410; Case v. Wresler, 4 Ohio St. 561; Illinois State Hospital, etc., v. Higgins, 15 Ill. 185; United States, ex rel., v. Board, etc., 28 Fed. Rep. 407; State, ex rel., v. Board, etc., 4 Ind. 495. In this instance there is no question of contract liability; the question is as to the duty of the appellant to distribute to the relator the specific fund derived from the assessments levied to pay for the construction of the public ditch. The officer has no right to the specific fund, and he is liable, if at all, because he violates his duty in withholding the specific fund from the party entitled to it. He is not liable, upon the facts stated in the petition, to an action for a breach of contract duty, but he is liable, if liable at all, because he violated a duty imposed upon him by law. Such cases as State, ex rel., v. Trustees, 114 Ind. 389, are not relevant to the point here in dispute, since the liability of the appellant is not upon contract, but his liability arises out of a failure to distribute a specific fund in his hands as the law requires. Confessing, as the appellant does by his demurrer, that he has the specific fund in his hands, and that the relator is entitled to it under the law, he can not successfully urge as a reason for withholding the fund, that the land-owners who Ingerman, Drainage Commissioner, v. The State, ex rel. Conroy. paid the assessments which created the fund are not parties to the action. He has the fund-the assessments have been paid—and it is his duty, upon proper demand, to pay the relator the money due him out of the specific fund. There is no merit in his contention that the land-owners should be parties, for nothing remains for him to do except to make proper distribution of the specific fund realized from the assessments. There is a fatal defect in the petition and alternative writ. No demand is shown, and in such a case as this a demand is essential. The presumption is that an officer will do his duty upon request, and to put him in the wrong a demand is essential. Jackson School Tp. v. Farlow, 75 Ind. 118. A claimant of a fund can not maintain such an action as this without first demanding payment of his claim. The authorities. are well agreed that where the duty is owing to a private person, and not to the public, a demand must be alleged with precision in the petition for a writ of such an extraordinary character as that invoked by the relator. State, ex rel., v. Slick, 86 Ind. 501; Oroville, etc., R. R. Co. v. Supervisors, etc., 37 Cal. 354; Board, etc., v. Arrghi, 51 Miss. 667; State, ex rel., v. Shaack, 28 Minn. 358; State, ex rel., v. Davis, 17 Minn. 429; Lee County v. State, ex rel., 36 Ark. 276. Many cases are cited in 14 Am. and Eng. Encyc. of law, p. 106. Judgment reversed. Filed May 1, 1891. Orr et al. v. Owens. No. 14,930. ORR ET AL. v. OWENS. REAL ESTATE.-Sale on Execution.-Action to Recover.-- Within what Time Must be Brought.-Section 293, R. S. 1881, Applies to Void Sales.-Where land was sold under a decree of foreclosure by a sheriff without the county in which he holds office, and in due time a sheriff's deed was executed to the purchaser, and under that purchase he entered into possession of the land, and held it for more than ten years under his sheriff's deed, before a suit was instituted to recover the land, the action for recovery is barred by the statute of limitations. Section 293, clause 3, R. S. 1881, providing that an action can only be brought by the execution debtor to recover real property sold on execution within ten years from the day of sale, applies to sales where there was an entire want of jurisdiction in the court to order the sale of the property. From the Jackson Circuit Court. W. K. Marshall, for appellants. J. M. Lewis and B. H. Burrell, for appellee. MILLER, J.-This was an action brought by the appellants against the appellee to quiet the title to a tract of land in Scott county, in which county the action was originally instituted. The ruling of the court in overruling a demurrer to the second paragraph of the answer, is the only error assigned in this court. It appears from the answer that the owner of the land in controversy executed a mortgage on this, with other lands, situate in Jackson county, to secure the payment of a note; that afterwards the mortgage was foreclosed in the common pleas court of Jackson county, and the land sold upon the decree by the sheriff of Jackson county, at the court-house, in Jackson county. This sale was made in contravention of the provisions of the statute. 2 G. H., p. 249, section 466 (section 756, R. S. 1881). Holmes v. Taylor, 48 Ind. 169; Jenners v. Doe, 9 Ind. 461. The purchaser paid the purchase-money, and in due course Orr et al. v. Owens. of time received a sheriff's deed, and entered into possession of the land under his purchase. That the purchaser, and those claiming under him, have been in the undisturbed possession of the land, claiming title under the purchase for more than ten years prior to the commencement of this suit, and that they have made lasting and valuable improvements upon the land. The appellants claim title under the original mortgagors. The only question discussed by counsel is as to the effect of the statute of limitation. Section 293, clause 3, R. S. 1881. The counsel for the appellants concedes the general rule to be, that an action can only be brought by the execution debtor to recover real property sold on execution within ten years from the day of sale, but contends that this sale, being without the county in which the sheriff held office, was not, in reality, a sheriff's sale. That being extra-territorial, and without his bailiwick, it was absolutely void; that the statute was intended to protect purchasers where there is merely a defective execution of a power, but not where there is an entire non-execution of it. We are unable to agree with counsel in their construction of this statute. In construing this section of the statute of limitations, in the case of Brown v. Maher, 68 Ind. 14, the court says: "The statute clearly applies to the case before It applies to void sales. If it did not, it would be a dead letter; for, if sales are not void, the purchaser needs no statute of limitations to protect his title." And in White v. Clawson, 79 Ind. 188, this language is used with reference. to another clause in this section: us. "Nor did the averment that the guardian's sale was void add anything to it. The statute upon which the defence was based is a statute of repose, and it is not necessary that a person shall have a good title to invoke its aid. Such persons do not need it. It is only those who can not assert a good title. It protects those who hold under void sales." Small, Receiver, v. The City of Lawrenceburgh et al. In Wright v. Wright, 97 Ind. 444, a suit by a married woman to recover land sold in violation of a statute, was held to be barred because not brought within ten years from the day of sale. In Second National Bank v. Corey, 94 Ind. 457, an action to recover land advertised and sold by a sheriff by a description so defective and insufficient as to be void, was barred after ten years. Also, in actions where there was an entire want of jurisdiction in the court to order the sale of property. Vancleave v. Milliken, 13 Ind. 105; Vail v. Halton, 14 Ind. 344; Gray v. Stiver, 24 Ind. 174. The answer informs us that this land was sold by a sheriff, and that in due time a sheriff's deed was executed by the sheriff to the purchaser. And that under that purchase he entered into possession of the land, and held it for more than ten years under his sheriff's deed. This gave him and those claiming under him the right of protection afforded by the statute. The court did not err in overruling the demurrer to the second paragraph of answer. Judgment affirmed. Filed April 30, 1891. No. 15,645. SMALL, RECEIVER, v. THE CITY OF LAWRENCEBURGH ET AL. BANKS AND BANKING.-Bank Stock-Taxation of— Assessment in Name of Bank.-Effect of.-Excessive Assessment. Remedy.-Where bank stock is assessed and a valuation put upon it by the proper officer, and an entry made of the assessment upon the tax duplicate, the fact that the assessment was made in the name of the bank, instead of the individual stockholders, will not invalidate the lien, or relieve the respective stock |