McCauley et ux v. Holtz.

MCCAULEY ET UX. v HOLTZ.

VENDOR'S LIEN.-Complaint.—Evidence.—Promissory Note.-Judgment.—In an action on a promissory note, and to enforce a vendor's lien on real estate for the amount thereof, brought by the vendor against the vendee, the complaint, to be sufficient, must allege, and the evidence on the trial must. establish, that the vendee has no other property subject to execution, to authorize the relief prayed for in the first instance.

SAME.-Sale of both Real and Personal Property.—Application of Part Payment.-Where, in the same transaction, sale is made of both real and personal property, for a sum in gross, and part of the purchase-money is paid, and a promissory note executed for the balance, without any direction by the grantee as to the application of such payment and without any application thereof by the grantor, the court may, in an action to enforce a vendor's lien for the amount of such promissory note, apply such payment to the discharge of the price of the personalty, and decree a vendor's lien against the real estate for the amount of the unpaid purchase-' money due therefor.

From the Warren Circuit Court.

J. McCabe and L. Reilly, for appellants.
J. M. Rabb, for appellee.

BIDDLE, J.-This suit is brought by David Holtz, against Alexander McCauley, on a promissory note made by him to Holtz, to recover judgment on the note and to enforce a vendor's lien against certain real estate, in part payment for which it is alleged the note was given.

Answer, general denial; trial by the court; finding for the appellee.

Over the usual motions and exceptions, the court rendered judgment for the amount of the note, and decreed the sale of the land to pay it, and, in default of its sufficiency, that execution issue for the balance.

Neither the complaint nor the evidence, which is all before us, will sustain this judgment as it is rendered. There is no averment in the complaint, that the maker of the note had no property subject to execution, nor is there any evidence in the case tending to support the fact. It

McCauley et ux. v. Holtz.

was therefore erroneous to decree the sale of the land to pay the debt, in the first instance.

The appellee thinks that the judgment is merely informal, and, as it was not objected to below, for that reason it cannot be questioned here; but we are of the opinion that the defect in the judgment is substantial, and that the error is properly presented. Scott v. Crawford, 12 Ind. 410; Bowen v. Fisher, 14 Ind. 104; Stevens v. Hurt, 17 Ind. 141.

As to the general doctrine of vendor's liens, consult the following authorities: Evans v. Goodlet, 1 Blackf. 246; Bottorf v. Conner, 1 Blackf. 287; Lagow v. Badollet, 1 Blackf. 416; Brumfield v. Palmer, 7 Blackf. 227; Aldridge v. Dunn, 7 Blackf. 249; McCarty v. Pruett, 4 Ind. 226; Fisher v. Johnson, 5 Ind. 492; Amory v. Reilly, 9 Ind. 490; Dibblee v. Mitchell, 15 Ind. 435; Merritt v. Wells, 18 Ind. 171; Haugh v. Blythe's Ex'rs., 20 Ind. 24; Case v. Bumstead, 24 Ind. 429; Johns v. Sewell, 33 Ind. 1; Fordice v. Hardesty, 36 Ind. 23; Shanefelter v. Kenworthy, 42 Ind. 501; Wasson v. Davis, 34 Texas, 159; Swain v. Cato, 34 Texas, 395; Sutton v. Sutton, 39 Texas, 549.

The following facts, substantially, were stated by both parties in their testimony, and may be considered as undisputed:

The maker of the note purchased of the payee the real estate, a lien upon which is in question, and also a stock of liquors, two billiard tables, bar fixtures, furniture, etc., for the gross sum of two thousand five hundred and twenty-six dollars, one thousand nine hundred dollars of which was paid at the time the deed of conveyance was made; and the note of six hundred dollars, now in suit, was given for the balance, less twenty-six dollars which was paid after the note was executed. The real estate at the time of the sale was estimated at the value of one thousand six hundred dollars, and the personal property at

McCauley et ux. v. Holtz.

nine hundred and twenty-six dollars. At the time the payments were made, nothing was said by either party whether they should be applied to the payment of the real or personal property; and no such application was made by either party. The money was paid upon the whole debt.

Under this state of facts, the appellants contend that the payments should have been applied, first to the real estate, and the balance to the personal property, and thus discharge the vendor's lien; the appellee contends, as the appellants did not make any application of the money to either debt, at the time the payments were made, that he has the right to apply the payments, first to the discharge of the debt for the personal property, and the balance on the payment of the real estate, and thus preserve his vendor's lien for whatever may remain due.

We believe the following to be the true rule:

When the debtor owes his creditors upon several distinct debts, he has the right to direct his payments to either debt, as he chooses; but, if the debtor pays generally, without any such direction, then the creditor may apply the payment to either debt, as he chooses; if neither the debtor give such direction, nor the creditor make such application, the court will usually apply the payments, first to the debt having the most precarious security, or no security, or to the oldest debt. In other words, the law, in the latter class of cases, will make such application of the payments as justice between the parties most urgently demands. King v. Andrews, 30 Ind. 429, and the authorities there cited; The Adams Express Co. v. Black, ante, p. 128.

In this branch of the case we do not think the court erred.

The finding upon the note, and the finding that the amount is a lien upon the land, are correct.

The Town of Cicero et al. v. Sanders et al.

The judgment decreeing the sale of the land first is erroneous, and therefore is reversed, at the costs of the appellees.

The cause is remanded with instructions,

1st. To render judgment on the note, to be levied generally, as in other judgments;

2d. To decree the sale of the land to pay the amount of the lien, if the judgment cannot be levied in the usual

course.

THE TOWN OF CICERO ET AL. v. SANDERS ET AL.

From the Hamilton Circuit Court.

J. W. Evans, J. B. Julian and J. F. Julian, for appellants.
J. O'Brien, for appellees.

PERKINS, J.-Suit by the appellees to enjoin the collection of taxes assessed upon lands used for farming purposes, claimed to be within the corporate limits of the town of Cicero, the taxes being assessed, as the complaint alleges, for the benefit of said town.

Issues were formed and tried by a jury, the trial resulting in a verdict for the appellees, upon which, over a motion for a new trial, final judgment was entered.

On the trial the court instructed the jury thus: "If the jury believe from the evidence in this cause, that the real estate and personal property of the plaintiffs, described in the complaint herein filed, are situate in the county,and are not situate within the town plat, which has been platted and recorded as a town, and that the farm land so described in the complaint, and the personal property mentioned in the complaint, are farm property, owned and kept by the respective owners as their farms and used for farming purposes only, and the land is used for farming purposes and is not used for town purposes by the owners, and is in no manner appropriated to the purposes of town property by the owners, and is not needed by the town, then the defendant, The Town of Cicero, has no right to levy and collect taxes for any town purpose whatever upon said property. To allow her to do so would be to allow private property to be taken for public use, which can not be done.

"if the facts are sustained, as stated in this instruction, by the evidence, then you must find for the plaintiffs, or for such of them as use their property. upon which taxes are assessed, as stated in the complaint against all the detestants. See Dillon on Corporations, 2d volume, p ge 732, et seq., 600s. 633 and 634, and notes; Fulton v. The City of Davenport, 17 Iowa, 404 to 412; Mumford v. Angle, 8 Iowa, 82; Bradshaw v. Omaha, 1 Neb. 16; 34 Iowa, 194; 16 Iowa, 271; 8 Bush, Ky. 607; 9 B. Monroe, 330; 17

The Evansville and Crawfordsville R. R. Co. v. Haddon.

B. Mon. 223; 15 B. Mon. 491; 2 Bush, Ky. 271; 2 Met. Ky. 553. See Cooley on Const. Lim. 500, 501."

Exception was duly entered to this instruction.

The instruction was erroneous. The City of Logansport v. Seybold, 59 Ind. 225; Tarlton v. The City of Franklin, post, p. 212.

We decide no other question in the cause. The pleadings may be so shaped as to present different questions on another trial.

See, as to annexation of territory. Stilz v. The City of Indianapolis, 55 Ind. 515. See, as to taxation, Acts 1877, Spec. Sess., p. 73; The City of Peru v. Bearss, 55 Ind. 576.

The judgment is reversed, with costs, and the cause remanded for a new trial.

READY V. THE STATE.

From the Fayette Circuit Court.

W. C. Forrey, for appellant.

C. A. Buskirk, Attorney General, for the State.

PERKINS, J.-The questions for decision in this case are the same as those presented and decided in the case of Ready v. The State, ante, p. 1. Upon the authority of that case this must be affirmed, with costs.

MULLEN V. THE TOWN OF GREENFIELD.

From the Hancock Circuit Court.

J. L. Mason, B. F. Davis and A. H. Dickey, for appellant.

C. G. Offutt, for appellee.

BIDDLE, J.-By the authority of the case of Walter v. The Town of Columbia City, 61 Ind. 24, which decides the same questions involved in this record, the present case is reversed.

The judgment is reversed, at the costs of the appellee, and the cause remanded.

THE EVANSVILLE AND CRAWFORDSVILLE R. R. Co. v. HADDON.

From the Knox Circuit Court.

F. W. Viehe and R. G. Evans, for appellant.

G. G. Reily and W. C. Johnson, for appellee.

Howk, J.-In this action, the same questions are presented for decision

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