Indiana.

Burns' annotated Indiana statutes : showing the general statutes in force September 1, 1901 : embracing the revision of 1881 as amended, and all permanent, general and public acts of the General Assembly passed since the adoption of that revision : containing also the United States and Indiana const online

. (page 46 of 135)
Online LibraryIndianaBurns' annotated Indiana statutes : showing the general statutes in force September 1, 1901 : embracing the revision of 1881 as amended, and all permanent, general and public acts of the General Assembly passed since the adoption of that revision : containing also the United States and Indiana const → online text (page 46 of 135)
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nor more than one hundred dollars.

2290v. Duty of inspector. — 4. The Bureau of Factory Inspection is
hereby required to enforce the provisions of this law.



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CHAPTER 18.
COMMON CARRIERS.

Section numbers to notes refer to Revised Statutes of 1901.

Sections omitted have not been construed since 1901.

ART. ART.

1. Unclaimed articles. 3207a-3207c. 3. Express companies. 3307-33 12b.

ARTICLE 1.— UNCLAIMED ARTICLES.

sec. sec.

3297a. Actions, allegations, proof. 3297c. Issue, trial.

3297b. Contract, defense, answer.

[Acts 1905, p. 68. In force April 15, 1906.]

3297a. Actions, allegations, proof. — 1. That in all actions against
common carriers on account of the failure by such carriers to safely
transport and deliver property received by them, it shall be suflBcient
for the shipper or person entitled to maintain such action to aver and
prove, in the 'first instance, the delivery to and receipt by the carrier
of such property for transportation to a point named, together with
the failure of the carrier to so transport or deliver and the resulting
damage.

3297b. Contract — ^Defense — ^Answer. — 2, Any limitation by contract
of the common law liability of such carrier is hereby made matter of
defense which shall be specifically set up by answer and which shall
not be provable under a general denial. Such affirmative answer shall
state facts showing that the contract counted upon is based upon a
sufficient consideration, that it is reasonable, that it was fairly entered
into by the shipper after he had been given a bona fide and full oppor-
tunity to ship at a fair and reasonable rate without limitation of lia-
bility.

3297c. Issue, trial. — 3. A reply of a general denial shall be sufficient
to close the issue. And the issue thus formed shall be tried as other
issues of fact are tried.

(360)



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361 EXPRESS COMPANIES. § 3307

ARTICLE 3.— EXPRESS COMPANIES.

SEC. SEC.

33U7. statement to be filed. 33 12b. Equal terms, schedule of rates.

3307. Statement to be filed.

The statute requiring foreign express companies to file statements in the record-
er's office of each county in which business is conducted applies to all copartnerships,
aaBOciaiions and joint stock companies not organized under the laws of this state
whidi do business as express companies, and in suits against such companies it is
not necessary to allege that such statements have been filed. Adams Express Co. v.
State, 161 Ind. 328.

3312b. Eqnal terms, schedule of rates.

The act of 1901, sections 3312b-3312f, Bums' R. S. 1001, regulating the business
of express companies is constitutional, and construction of such acts and rights) and
liabilities of such companies and persons thereunder. Adams Express Co. y. State,
161 Ind. 328.



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CHAPTER 20.

CONVEYANCE OP LAND.

Section numbers to notes refer to Revised Statutes of 1901.

Sections omitted have not been construed since 1901.



1. Generally.



3333-3388a.



SEC.

5. Trusts and powers.



33913419.



ARTICLE 1.— GENERALLY.



SEC. SEC.

3333. Aliens, devise, descent, com'ey- 3350.

ance. 3352.

3333a. Pending suite not affected. 3364.

3333b. Aliens holding real estate. 3374b.
3333c. Lands escheat to state.

3333d. Repeal, saving clause. 3378.

3335. How conveyance made. 3379.

3345. Deed an^ recording. 3382.

3348. Unnecessary words, estate created. 3388a.

3349. Form of mortgage.



Time of rp«ordin^.

Acknowledgment or proof.

Disaffirmance by infant wife.

Destruction of records, titles legal-
ized.

Estates tail abolished.

Future estates, remainder.

Power of alienation.

Inj»ane husband or wife^, order of
court.



[Aets 1903, p. 184. In force March 7, 1903.]

3333. Aliens, devise, descent, conveyance. — 2. All other aliens may
take and hold land by devise and descent only, and may convey the
same at any time within five (5) years thereafter, and no longer, and
all lands so left and remaining unconveyed at the end of five (5) years
shall escheat to the State of Indiana : Provided, however, That whenever
any alien shall acquire, or shall have acquired heretofore, any land by
devise or descent, and the final settlement of the estate of such decedent
shall be, or shall have been, delayed for more than five (5) years, said
alien shall have an additional period of two (2) years from the final
settlement of such estate within which to convey said land: And pro-
vided further, That in the event such alien, during the pendency of such
settleiuent of such estate shall have become a naturalized citizen of
the United States and of the state in which he resides, then and in
such event such naturalized alien, thus becoming a citizen, shall be
and is relieved of all disabilities of aliens as to ownership of real estate ;
and he may continue to hold real estate, taken by devise or descent,
and may further acquire and hold real estate in like manner and with
like power as citizens of the United States.

This act amends section 3333, Burns' R. S. 1901. See notes to such section.

(362)



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363 GENERALLY. § 3333a

3333a. Pending suits not affected. — 2. Nothing contained in this act
shall effect, in any manner, pending litigation involving the escheat
of lands to the State of Indiana.

[Acts 1905, p. 410. In force March 6, 1905.]

3333b. Aliens holding real estate. — 1. That natural persons who are
aliens, whether they reside in the United States or any foreign country,
subject to the provisions hereinafter contained, may acquire by pur-
chase, devise or descent, and may hold and enjoy real estate, and may
convey, devise, transmit, mortgage or otherwise encumber the same in
like manner and with the same effect as citizens of this state or the
United States. The title of any real estate heretofore inherited, mort-
gaged, conveyed or devised shall not be questioned, nor in any manner
affected, by reason of the alienage of any person, ^rom or through
whom, mediately or immediately, such title is claimed or derived.

See sections 3328, 3332 and 3333, Bums' R. S. 1901, and notes.

3333c. Lands escheat to State. — 2. If any alien shall hereafter in
any manner, acquire land in this state in excess of three hundred and
twenty (320) acres, he shall, within five (5) years from acquiring such
excess or from arriving at the age of twenty-one years, if a minor,
unless he shall have become a citizen of the United States, convey
all lands acquired by him in this state, except that if he dies within
said period without having conveyed, nothing herein shall prevent his
heirs or devisees from inheriting or taking by devise from or through
him such unconveyed lands, subject to all the provisions of this act.
If any alien shall acquire such excess above three hundred and twenty
(320) acres and such excess shall remain unconveyed at the end of five
years after the acquisition thereof, then such excess shall escheat to
the State of Indiana, and it shall be the duty of the attorney-general
to file an information in. the circuit or superior court of the county in
which said land is situated, alleging the ground upon which recovery
is claimed, making all persons interested parties thereto, and the at-
torney-general shall, at the time of filing such information, file in the
oflSce of the clerk of said court a notice containing the title of the court,
the names of all the parties, if known, and if not known, then by the
designation of ** unknown heirs," as is provided in suits to quiet title,
to such suit, a description of said real estate and a statement of the
nature of such action, and said notice shall be by the clerk recorded in
lis pendens record as of the date and hour of filing, and said land and
all of the land owned by said alien and described in said information
and notice shall, upon hearing and judgment, upon such information,
escheat to the state : • Provided, Any person, firm or corporation, who,
prior to the filing of such information and notice, in good faith and
for a valuable consideration shall have, or except for the alienage of
the person or persons, from or through whom, mediately or immediately,
claim is made, would have acquired, either by deed, mortgage, contract,
legal proceeding or otherwise, any right, title, interest or lien to, in or



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§ 3333d CONVEYANCE OF LAND. 364

upon said lands, or any part thereof, shall not be prejudiced nor af-
fected by the alienage of any such person or persons, and every such
right, title, interests or lien shall be in all respects as valid as if the
alienage of such person or persons did not exist, and may be set up
by the owner or owners thereof and shall be fully protected in any
proceeding for the recovery or to enforce the escheat of said lands in
favor of the state.

3333d. Repeal, saving clause. — 3. All laws and parts of laws in con-
flict with the provisions of this act are hereby repealed : Provided, how-
ever, Nothing contained in this act shall affect in any manner the title
to any real estate heretofore recovered or conveyed, by or under the
authority of the state as escheated lands, or pending litigation involv-
ing the escheat of lands to the state or the title of the state to any
lands to which it has heretofore claimed, asserted or attempted to assert
title by an action in any court of this state.

3335. How conveyance made.

The grant of all the gas and oil in and under a tract of land is a grant of an
interest in the land and must be in writing. Heller v^ Deiley, 28 App. 655.

A grant of an interest in land which is required to be in writing, can only be
surrendered and released by a written instrument. Heller v. Dailey, 28 App. 555.

3346. Deed and recording.

In an action to quiet title to land against a subsequent purchaser, it musft be
alleged in the complaint that the deed under which the plaintiff claims was recorded
within the time fixed by statute, or that such purchaser had notice of the claim of
the plaintiff. Union Central Co. v. Dodds, 155 Ind. 365; Dodds v. Winslow, 26
App. 652.

3348. Unnecessary words, estate created.

It is not nececssary to use the words "heirs and assigns of the grantee" in a deed
in order to create in the grantee an estate of inheritance. Chamberlain v. Runkte,
28 App. 599.

9349. Form of mortgage.

A mortgage with warranty is entitled to as much faith and confidence as a war-
ranty deed. Rinehardt v. Reifers, 158 Ind. 675.

3360. Time or recording.

Purchasers at execution sales are protected against prior unrecorded deeds the same
as other subsequent purchasers. Union Central Ins. Co. v. Dodds, 155 Ind. 365,
Dodds V. Winslow, 26 App. 652.

Unrecorded deeds and mortgages are valid as against every person except subse-
quent purchasers, lessees, and mortgagees in good faith and for a valuable considera-
tion. State Bank v. Backus, 160 Ind. 682.

If in recording an instrument the land is not described a» the same is described
in the instrument, such record is not notice to a subsequent purchaser or mortgagee
of the land described in the instrument. State v. Walters, 31 App. 77.



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365 GENERALLY. § 3352

3352. Acknowledgment or proof.

By act of 1905, Acts 1905, p. 103, records of deeds which were acknowledged before
justices of the peace and the acknowledgments were defective are legalized.

3364. DisafiOrmance by infant wife.

An infant married woman must disaffirm a deed executed during minority within a
reasonable time after arriving at age, and what held to be a reasonable time. Shroyer
V. Pittenger, 31 App. 158.

The disaffirmance of a deed by an infant need not be by writing, but any act
after arriving at full age whi<^ shows a dissent and which is inconsistent with the
continued validity of the contract will amount to a disaffirmance. Shroyer v. Pit-
tenger, 31 App. 158.

When an infant married woman disaffirms a deed executed during minority, she
must return the consideration she received for executing the deed. Blair v. Whittaker,
31 App. 664.

When it is alleged that an infant married woman did not receive any considera-
tion for the execution of a deed, it is not necessary to show a return of consideration
on a disaffirmance of the deed. Shroyer v. PHtenger, 31 App. 158.

[Acts 1905, p. 13. In force April 15, 1905.]

3374b. Destmction of records, titles legalized. 1. That in all cases
where there shall exist a defect in the title to any of the lands in any
county in the State of Indiana, which defects of title are due to the
destruction of the deed records of such counties by fire, which fire oc-
curred prior to the year A. D. 1875, the title to such lands is hereby
made valid in the owner thereof as against any defects in the title there-
to resulting from the destruction of the deed records of such counties
as aforesaid: Provided, That this act shall in no wise afifect the title
in any such lands, the defects in which title shall not be due to the
destruction of the records as aforesaid: Provided, That nothing in this
act shall in any way interfere with any litigation now pending in any
of the courts of this state.

This act amends the act of 1903, Acts 1903, p. 326.
See section 3374a, Bums* R. S. 1901.

3378. Estates tail abolished.

Estates tail are abolished by statute, and what would be an estate tail at common
law is in this state a fee simple estate. Teal v. Richardson, 160 Ind. 119; Chamber-
lain V. Runkle, 2S App. 599.

3379. Future estates, remainder.

If a mother and children own land in fee in common, and under an agreement all
the land is conveyed to the mother for life and she accepts the same and agrees that
on her death all the land is to go to her heirs, the mother becomes vested with a
life estate in the land and her heirs are vested with a remainder in fee. Adams v.
Alexander, 159 Ind. 175.

Lands may be conveyed and the possession and enjoyment thereof postponed until
after the death of the grantor. Emmons v. Harding, 162 Ind. 154.



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§ 3382 CONVEYANCE OF LAND. 366

3382. Power of alienation.

A condition in a deed that prohibits the grantee from conveying, mortgaging or
encumbering the land for twenty years on a penalty of forfeiting the land, does not
violate the statute prohibiting the absolute suspension of alienation, and such con-
dition applies only to voluntary encumbrances placed on the land and to that portion
of the land encumbered. >onts v. Millikan, 30 App. 298.

Charitable bequests do not fall within the statute restraining the power of alienat-
ing lands, but if such bequests are a part of a general scheme to create a trust in
violation of the statute such bequests arc void. Phillips v. Heldt, 33 App. 388.

[Acts 1905, p. 102. In force April 15, 1905.]

3388a. Insane husband or wife — Order of court. — 1. That whenever,
hereafter, any person owning real estate and being desirous of selling
the same, or any part thereof, and whose husband or wife at the time
shall be insane or of unsound mind, such person upon complying with
the provisions of this section shall be and is hereby authorized and em-
powered to sell and convey the same by deed without the joinder of
such husband or wife who is insane or of unsound mind, and the con-
veyance shall have the same effect as would the joint deed of both, had
neither been insane or of unsound mind. Before any such deed shall
be made the owner of the real estate intending to make the sale shall
by petition apply to the court having probate jurisdiction in the county
where the real estate to be sold, or some part of it, is situated, alleg-
ing the insanity of the husband or wife of the owner, and that such
insanity is probably permanent. Upon the filing of such petition notice
shall be given to the person alleged to be insane, either by service of
process, as provided by law for service of process against insane per-
sons, in other civil actions, or, if the person alleged to be insane is,
by affidavit, as in other civil cases, shown to be an non-resident of the
state, by publication. After such notice and upon or after the return
day thereof the legally appointed guardian of the person alleged to be
insane, i£ there be one, or, i£ there be no such guardian, a guardian
ad litem, for such person, appointed by the court, shall make proper
defense, if any there be, to such application. Thereupon the matter
of such petition shall be submitted to the court, and if the allegations
thereof be proved to the satisfaction of the court, it shall make and enter
a finding that the person alleged to be insane is insane, and that the
insanity is probably permanent, and upon the filing, by the petitioner,
with the clerk of the court, of a bond, in a penalty and with surety to
the approval of the court, payable to the State of Indiana, conditioned
to keep such insane husband or wife from becoming a county charge,
and to account to him or her, upon restoration to sanity, if he or she
shall upon such restoration demand it, one-third of the purchase money
received for the real estate upon such sale, the court shall enter an order
authorizing the whole title to be conveyed by the petitioner without the
joinder of the insane husband or wife. Such deed, when made upon such
an order of court, shall have the same effect as has the deed of an unmar-
ried person competent to convey real estate: Provided, That whenever



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667 TRUSTS AND POWERS. § 3391

it is shown to the satisfaction of the court having probate jurisdiction
in the county wherein such lands so authorized to be sold are situated,
that such lands were sold pursuant to such order authorizing the same,
and that the entire proceeds of such sale were afterwards invested in
other real estate situated in the State of Indiana, and that such lands
thus purchased were of no less value than the lands theretofore sold
pursuant to said order, and that the title thereto had been taken in the
name of the person having such insane husband or wife, and that such
insane husband or wife will not suffer loss thereby, such court shall enter
an order discharging said bond and releasing the sureties from all lia-
bility thereon.
This act amends section 3388a, Burns' R. S. 1901.



ARTICLE 5.— TRUSTS AND POWERS.

SEC. SEC.

3391. Express trust* created in writing. 3403. Conveyance of nominal trustee.
3396. When no resulting trust. 3407. Irrevocable powers.

3398. Resulting trust, when. 3419. Control of court.

3401. Resignation of trustee.

3391. Express trusts created in writing.

A trust in land may be created by any writing under the hand of the party creat-
ing the trust, when the terms and conditions of the trust are set forth with sufficient
certainty. Nesbitt v. Stevens, 161 Ind. 519.

To create a trust in land by a deed conveying the same, the terms, conditions and
beneficiaries of the trust must be specified, or reference must be made to some other
writing which defines the trust. Christian v. Highlands, 32 App. 104.

3396. When no resulting trust.

An all^ation in a complaint that a husband paid for land with money belonging
to his wife, and that he took the title in his own name, does not show a resulting
trust in favor of the heirs of the wife in the absence of an allegation that the con-
veyance was made to the husband without the wife's consent, or that it was fraudu-
lently made, or that it was in violation of any trust, or that there was an agreement
that he should hold the land in trust for her. Repp v. Lesher, 27 App. 360.

3398. Resulting trust, when.

In an action to enforce by parol a trust in land because the land was paid for
with money belonging to the person seeking to enforce the trust, the evidence as to
payme<nt must be clear and imequi vocal, and where part payment only is claimed the
exact portion must be clearly shown. Hutton v. Cunningham, 28 App. 295.

3401. Resignation of trustee.

When a trustee of an express trust resigns, it is proper for him to include in his
resignation a claim for his services. Hord v. Bradbury, 156 Ind. 30.



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§ 3403 CONVEYANCE OF LAND. 368

3403. Conveyance to nominal trustee.

If land is conveyed to a person merely to enable him to convey the title to others,
such person becomes a mere trustee and no title vests in him but the title vests at
once in the beneficiaries. Greenwood Assn. v. Stanton, 28 App. 548.

If land is conveyed to a trustee with powder to convey the sajne to certain persons
upon the performance of specified conditions, the trustee is invested with the legal
title to the land and is not merely a nominal trustee. McCleary v. Chipman, 32 App.
489.

3407. Irrevocable powers.

Authority to revoke a power, beneficial or in trust, must be reserved in the instru-
ment creating the same, and a subsequent writing directing the execution of the
power will not control or revoke the power contained in a deed creating 'the trust and
power. McCleary v. Chipman, 32 App. 489.

3419. Control of court.

If a court adjudges that a trust be closed and terminated in accordance with an
agreement and settlement between the parties, such proceeding can not be collaterally
attacked by any of the parties. Spencer v. Spencer, 31 App. 321.



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CHAPTER 21.
CORPORATIONS GENERALLY.

Section numbers to notes refer to Revised Statutes of 1901.

Sections omitted have not been constmed since 1901.

SEC. SEC.

3425. Powers of corporations. 3442. Borrowing on mortgage.

3425. Powers of corporations.

T^e provision of the statute that each stockholder shall have a vote at meetings
for each share of stock owned is a right which can not be abrogated by any regula-
tion of a corporation that the officers thereof shall continue to serve indefinitely
when the statute requires such officers to be elected at stated times. State v. Anderson,
31 App. 34.

3442. Borrowing on mortgage.

A mortgage executed by an insolvent corporation to secure the payment of debts
for which directors of the corporation are liable as sureties is void imless such mort-
gage is authorized by a majority of a quorum of the directors who are disinterested.
Swift Co. V. Dyer-Veatch Co., 28 App. 1.



(369)



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CHAPTER 22.

CORPOBATIONS— FOREIGN.

Section numhera to notes refer to Revised Statutes of 1901.

Sections omitted have not been construed since 1901.

SEC. SEC.

3453. Agents filing authority. 3461b. Copy of articles, fees, certificate.

3456. Ck>ntracts, enforcing.

3453. Agents filing authority.

The legislature may prescribe the terms and conditions upon which foreign, cor-
porations may carry on business in this state. People^s Assn. v. Markley, 27 App. 128.

If it is claimed that a foreign corporation can not enforce a contract executed
in this state because of a non-compliance with the statutes of this state regulating
such corporations, the question must be raised by a plea in abatement under oath.
North Mercer Co. v. Smith, 27 App. 472.

If a foreign corporation in the transaction of business in this state by an agent
obtains a contract in its favor before such agent has complied, with the statutes of
this state regulating the business of such corporations, such conftract can not be
enforced until such statutes are complied with. People's Assn. v. Markley, 27 App.
128; North Mercer Co. v. Smith, 27 App. 472.

Under the act of 1897, section 4463j, Burns R. S. of 1901, the receiver of a foreign
insolvent building association may enforce contracts in favor of sudi association
although such association did not comply with the statutes of this state regulating
foreign corporations. Clarke v. Darr, 15G Ind. 692.

Foreign surety companies are not required to comply with statutes regulating
the transaction of business in this state by foreign corporations generally, as such
surety companies are controlled by special statutes. Barricklow v. Stefwart, 31
App. 446.

3456. Contracts, enforcing.

Foreign corporations that have failed to comply with the statutes of this state
regulating such corporations can not enforce contracts made by their agents in this
state in conducting the business of such corporations until such statutes have been
complied with. People's Ass*n v. Markley, 27 App. 128; Nortti Mercer Ca v. Smith,
27 App. 472.

The objection that a foreign corporation has not complied with the statute of this
state must be raised by a plea in abatement. North Mercer Co. v. Smith, 27 App. 472.

(370)



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371 FOREIGN. § 3461b

[Acts 1903, p. 226. In force March 0, 1903.]



Online LibraryIndianaBurns' annotated Indiana statutes : showing the general statutes in force September 1, 1901 : embracing the revision of 1881 as amended, and all permanent, general and public acts of the General Assembly passed since the adoption of that revision : containing also the United States and Indiana const → online text (page 46 of 135)