Hilgenberg v. Rhodes et al.

viously conveyed the property to the plaintiffs, a different rule would prevail. Harness v. Harness, 49 Ind. 384; McFerran v. McFerran, 69 Ind. 29.

The death of Rebecca Hamilton having been suggested, it is ordered that judgment be entered as of the May term, 1885, during which this cause was submitted.

The judgment is affirmed, with costs.

Filed May 26, 1887.

No. 12,388.

HILGENBERG v. RHODES ET AL.

TAX SALE.-Deed.-Permanent Improvements.-Adverse Title.-A purchaser of land at a tax sale, who has received a tax deed and taken possession and made permanent improvements, but whose deed is not effectual to convey title, can only recover for such improvements as were made after receiving his deed and before notice of an adverse claim to the land. SAME.-Statute Construed. When Recovery Had for Improvements.-Section 253, of the tax law of 1872, providing that the purchaser "shall be entitled to receive what such improvements are reasonably worth, to be assessed on the trial of said cause," does not fix the cases in which there may be a recovery, but only secures to the purchaser the value of improvements in a case where he is entitled to recover.

From the Marion Superior Court.

1. Klingensmith and W. P. Adkinson, for appellant. J. L. McMaster and A. Boice, for appellees.

ELLIOTT, J.-Hilgenberg obtained a tax deed for the land in controversy in 1875, and, while conceding that the deed is not effectual to convey title, contends that it is effectual to transfer the lien of the taxing power to him, and to invest him with a right to recover the value of permanent improvements put on the land by him. The trial court sustained

Hilgenberg . Rhodes et al.

his claim to a lien, and gave him part of the sum expended by him in improving the property. He is not content with the award of a part of the sum expended for improvements, but claims that the entire sum expended should have been awarded him.

The owner of the land, at the time the taxes were assessed, was a married woman, named Mary A. Day, and it was encumbered by a mortgage executed to Sophia E. Rhodes. The tax sale was made on the 25th day of February, 1875, and the deed executed on the 28th day of February, 1877. Sophia E. Rhodes instituted this suit to foreclose her mortgage, making Hilgenberg a party, and he was served with process on the 22d day of September, 1877. The trial court allowed him for the value of improvements made prior to that date, but refused to allow him for improvements made after that time.

The appellant's counsel quote from section 253 of the tax law, and assert that "this statute means that the holder of such tax deed shall have compensation for all improvements made by him at the date of the trial." This position is not tenable. It was not the intention of the Legislature, in the section of the statute under immediate mention, to give a purchaser at a tax sale a right to have the value of improvements made by him assessed and awarded absolutely and in every case. It certainly would not give a right to recover for improvements made after a proper tender and offer to redeem had been made; for, surely, no one would doubt that if, in defiance of such a tender and such an offer, the purchaser makes improvements, he would not be allowed to recover their value. This illustration is sufficient to prove that the statute can not have such an elastic construction as that claimed for it by appellant's counsel. The provision quoted by counsel reads, the purchaser "shall be entitled to receive what such improvements are reasonably worth, to be assessed on the trial of said cause." This is a provision securing to

Hilgenberg v. Rhodes et al.

the purchaser the value of the improvements in a case where he is entitled to recover, but it does not fix the cases in which there may be a recovery. It does not provide for a recovery in a case where bad faith exists, where there has been a tender and an offer to redeem; nor, indeed, does it prescribe the cases in which there may be a recovery; it simply provides what shall be assessed when the proper case is presented authorizing any assessment.

We do not doubt that, under the provisions of sections 212, 253 and 256 of the tax law of 1872, a purchaser at a tax sale may, as a general rule, recover compensation for improvements made after the expiration of two years from the date of the sale; but there are exceptions to this general rule, as is shown by the illustrations we have already given. In our opinion this case constitutes an exception to the general statutory rule; or, more accurately speaking, is not within the rule. Mrs. Day was a married woman, with a special right to redeem; the fact and the law respecting her right were known to the appellant; suit had been brought to foreclose a lien created by her, to which suit the appellant was made a party; and he was challenged to assert his rights, and notified that they were subordinate to those of the plaintiff in that suit. Under such circumstances, he had no right after notice of the suit to make permanent improvements at the cost of the owner of the land. It was an act of bad faith on his part to persevere after such a challenge and such knowledge. In analogous cases a principle has been often asserted which should control here, and that is, that the claimant can not make improvements on the land after he receives fair notice that he has no title. Osborn v. Storms, 65 Ind. 321; Walker v. Quigg, 6 Watts, 87; Ethel v. Batchelder, 90 Ind. 520. After service of process he proceeds at his peril. Shand v. Hanley, 71 N. Y. 319; Wilkinson v. Pearson, 23 Pa. St. 117; Aurand v. Wilt, 9 Pa. St. 54; Haslett v. Crain, 85 Ill. 129.

We must accept as trustworthy the evidence approved by

Vigo Township v. The Board of Commissioners of Knox County.

the judgment of the triers of the fact, and as that evidence sustains the finding, we must treat as a correct conclusion on the facts that approved by the trial court. Julian v. Western Union Tel. Co., 98 Ind. 327; Binford v. Adams, 104 Ind. 41. Judgment affirmed.

Filed May 24, 1887.

No. 13,658.

VIGO TOWNSHIP v. THE BOARD OF COMMISSIONERS OF
KNOX COUNTY.

COUNTY.-Treasurer.-Agency.-Respondeat Superior.-A county treasurer is
not an agent of the county in such a sense that the maxim respondeat
superior can be invoked. His duties are prescribed by law, and in the
exercise of his office he is in no way subject to the control of the board of
county commissioners.
SAME.-Township Funds.—Defalcation of Treasurer.—Liability of County.—A
county treasurer is not the agent of the county in respect to funds col-
lected by him for townships, and, in the absence of a statute so provid-
ing, the county is not liable to the townships for his defalcations.
SAME.-Trust.-Township Funds Credited to General Fund of County.—The
board of county commissioners has no control of the funds which the
law requires to be collected for and apportioned to the townships, and
occupies no relation of trust concerning such funds in the treasurer's
hands, unless they have actually been paid into the corporate treasury,
i. e., credited to the general fund of the county.
SAME.—Auditor.— Warrants for Township Funds.—Create no Obligation Against
County.--In drawing warrants upon the county treasurer for the funds
in his hands belonging to the townships, the county auditor does not act
as the agent of the county, nor do such warrants create any obligation
against it.

SAME.-Compromise of Suit Against Defaulting Treasurer.—Rights of Town-
ships.-Action Against County.-Where a suit has been instituted by the
county auditor upon the official bond of a defaulting county treas-
urer, and a compromise is effected, whereby a certain part of the amount
converted is accepted in full satisfaction, a township which suffered a
loss to its funds by the defalcation is entitled to its proportion of the
sum recovered, but it can not maintain an action therefor against the

Vigo Township v. The Board of Commissioners of Knox County.

county, unless it is shown that the share belonging to it has been covered into the county treasury to the credit of the general fund.

From the Knox Circuit Court.

W. H. De Wolf, S. N. Chambers and E. H. De Wolf, for appellant.

W. A. Cullop, G. W. Shaw and C. B. Kessinger, for appellee.

MITCHELL, J.-During his incumbency in the office of county treasurer of Knox county, Spear S. Hollingsworth, in pursuance of his duty in that behalf, collected various funds belonging to Vigo township, one of the townships within the county above mentioned. Hollingsworth be came a defaulter in his office, by appropriating public moneys which came into his possession, to the amount of $78,000. Among the moneys so appropriated were the funds collected for and belonging to the township of Vigo. Subsequently the State, on the relation of the county auditor of Knox county, instituted a suit upon the official bond of the defaulting treasurer. This suit was compromised by the county auditor and the bondsmen, the latter agreeing to pay over to the succeeding treasurer the sum of $35,000. After the annual settlement in 1886, the county auditor drew his separate warrants on the treasurer of Knox county for the full amount of each several fund which appeared by the records in his office to belong to Vigo township. These warrants were duly presented by the township trustee, to whom they were made payable. Payment was refused, on the ground that there were no funds in the treasury for that purpose. The warrants were afterwards presented for allowance to, and were rejected by, the board of commissioners. Acts 1885, p. 80. This suit was then brought, the claim of the township being, that upon the facts substantially hereinbefore stated, the county became liable for the payment of the warrants. The circuit court gave judgment against the township.

The argument in favor of the right of the township to