USA > Indiana > An illustrated history of the state of Indiana: being a full and authentic civil and political history of the state from its first exploration down to 1879 > Part 23
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Attachments may be issued against the property of a defendant, when the action is for the recovery of money, at the beginning of the action, or any time thereafter, only upon the affidavit of the complainant, or his attorney, showing the exact nature of the claim, and that it is just, as also the amount to be recovered, and the existence of one of the fol- lowing causes: 1. That the defendant is a non-resident, or a foreign corporation. 2. That the defendant is secretly leav- ing, or has left the State, with intent to defraud his creditors. 3. Or conceals himself so that summons cannot be served. 4. Removal of property out of the State. 5. That the defend- ant has sold or is about to sell or dispose of property with intent to defraud creditors. With certain exceptions no attach- ment can issue against a debtor while his wife and family remains settled in good faith within the county where the debtor's usual place of residence had been prior to his absence. All creditors share pro rata who file their claims under an original attachment before final judgment.
CLAIMS AGAINST ESTATES.
In order to recover costs, claims against estates of persons deceased, except judgment and mortgage liens created during
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the life-time, must be filed with the clerk of the circuit court, within one year from the appointment of the executor or administrator. " After one year, if not filed at least thirty days before final settlement, the claim is, with few exceptions, barred. A succinct statement of its nature and amount is sufficient, if it have attached the affidavit of the claimant, that it is justly duc and wholly unpaid. The entry by the clerk upon the appearance docket of the court is the only notice of the filing necessary. When the claim has been so entered ten days before the first day of the ensuing term, the executor or administrator may admit or refuse it, on the margin of the docket; if not admitted, it is to stand for trial at the next term. After allowance it has the force of a judgment, and bears interest at six per cent."*
In deeds, mortgages, acknowledgments and recording, pri- vate seals are abolished, and one witness is sufficient, and, when the deed is acknowledged by the party, no witness is necessary. " The certificate of acknowledgment may be annexed or indorsed. All conveyances of land must be by deed in writ- ing, subscribed and duly acknowledged by the grantor or his attorney, empowered by a like instrument. The joint deed of husband and wife passes the lands of the wife, but does not bind her to any of the covenants. Conveyances, to be valid against any other than the grantor, his heirs, or those having notice thereof, must be recorded within ninety days from their execution. To enable deeds and mortgages to be recorded, they must be acknowledged or proved before a judge, or clerk of some court of record, justice of the peace, auditor, recorder, notary public, or mayor of a city, in this or any other State, or before a commissioner of this State residing in another State, or before a minister, charge d'affaires, or consul of the United States in a foreign country. Acknowledgments before an officer having an official seal require no further attestation. Acknowledgment is essential to admit a deed to record, but not to its validity, which may be proved by attesting wit- nesses. A married woman need make no acknowledgment different from that of an unmarried woman. A married
* From Henry D. Pierce's Digest of the Laws and Courts of Indiana.
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HISTORY OF INDIANA.
woman under twenty-one and over eighteen may join her hus- band in conveying his property, if her father, or if he be dead, her mother, declare before the officer taking the acknowledg- ment, that it would be prejudicial to her and her husband not to convey, and that it is for the interest of the woman to con- vey; this declaration, with the name of the father or mother, to be inserted in the certificate. The conveyance by a corpo- ration must, of course, be under its corporate scal. All con- veyances and mortgages of lands, and every lease for three years, must be recorded in the recorder's office of the county where the lands are situated, within ninety days from the execution thereof, otherwise they are held fraudulent and void as against subsequent purchasers or mortgages in good faith for a valuable consideration." Chattel mortgage must be recorded within ten days from the date of execution, in the county where the mortgagee resides; otherwise they are void as against creditors.
In regard to depositions, they may be taken out of the State under a commission issued by the clerk of the court where the cause is pending. In such cases, " notice must be served upon the adverse party, and reasonable time given to reach the place of taking the deposition by the ordinary facilities of travel, excluding the day of service of notice, intervening Sundays, and the day of taking. Depositions of witnesses may be taken within or without the State, before a judge, justice of the peace, notary public, mayor, or recorder of a city, clerk of a court of record, or a commissioner appointed by a court; but not before any person being of kin to either party, or inter- ested in the action. Unless waived by agreement, officers in other States must act under a commission (detimus potestatem) from the court in Indiana where the cause is pending. Objec- tion to a deponent, as not competent, or to any questions pro- posed to or answers given by him, may be made at the exam- ination and embodied in the deposition, or subsequently in open court."*
And now in regard to executions. There are a lien on per-
* Henry D. Pierce, Esq., Indianapolis.
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sonal property "within the jurisdiction of the officer from the time of delivery, but if there be several executions in the hands of different officers, the first levy has the preference, and divests all liens created by prior delivery. An execution to another county from that in which judgment is rendered, is a lien only from time of levy. Executions may issue at any time within five years after rendition of the judgment; after that period, leave of court must be obtained, upon notice and motion. Executions from a court of record may issue to any county in the State. Property sold on execution, unless oth- erwise directed by the judgment, minst be appraised and sold for at least two-thirds its appraised value. When notes or other instruments or contracts in writing contain the clause ' without relief from valuation or appraisement laws,' the property of the judgment-debtor is sold upon execution for what it will bring. Stay of excention is allowed on nearly all judgments, by presenting one or more sufficient freehold securities as follows: On sums not exceeding six dollars, thirty days; over six and under twelve dollars, sixty days; over twelve and under twenty dollars, ninety days; over twenty and under forty dollars, one hundred and twenty days; over forty and under one hundred dollars, one hundred and fifty days; over one hundred dollars, one hundred and eighty days. Stays are not allowed on judgments for moneys received in a fiduciary capacity; or for breach of official duty." Every recognizance of this character operates as against the bail, as a judgment confessed. The property of the judgment-debtor must be exhausted before that of the bail.
As to redemptions, personal property taken upon execution may be redeemed by delivering bond. All lands sold under judgments upon contracts, since June 4, 1861, may be redeemed within one year from sale, by the payment of the purchase money, with interest at the rate of ten per cent. per annum. The exemption or stay laws cannot be waived in a binding form.
In regard to exemptions and homestead laws, "every resi- dent householder may claim as exempt from execution, prop- erty, real or personal, to the amount of three hundred dollars,
22
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on any debt founded on contract made since May 6, 1853. This right exists while in transitu from one residence to another, within the State. There is no homestead exemp- tion."
The legal rate of interest is six per cent .; but any other rate, not exceeding ten per cent., may be provided for by con- tract in writing. All interest over ten per cent. is illegal, as to the excess only. The rate of interest on judgments is six per cent. in the absence of a contract, but any rate may be provided for by contract, not exceeding, however, ten per cent.
Regarding judgments of the supreme and superior courts, they are liens upon all real estate of defendant liable to execu- tion in the county where rendered, for the space of ten years, and after the expiration of twenty years are deemed satisfied. A transcript of the judgment of any court of record may be filed in another county, and from the time of filing becomes a lien on the real estate of the judgment debtor in that county. An order of attachment binds the defendant's property in the county where issued, and becomes a lien from the time of . delivery to the sheriff. Goods in the hands of a consignee are subject to a lien for any debt due from the consignor. Jus- tices' judgments become a lien on real estate from the time of filing transcript in the common pleas court. Judgments on bonds payable to the State become a lien on the real estate of the debtor from the commencement of the action. Every recognizance binds the real estate of the principal from the time it is taken, but that of the surety only from the time judgment of forfeiture is taken; those taken by justices in criminal cases become a lien from the time of filing in circuit or criminal courts .*
The law regarding liens of mechanics, etc., is also impor- tant. Mechanics and all persons furnishing materials for, or performing labor upon, any building, or machinery therefor, have a lien on the building and real estate on which it is sit- nated for their pay, either jointly or separately, by filing notice of intention to hold such lien in the recorder's office within
· Manual of Laws and Courts.
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sixty days after conclusion of the work or completion of build- ing. The lien relates to the time when the work or repair's commenced, and has priority over any subsequent claims only. All who " file under " on action pending prior to judgment are allowed a pro rata decree. Sub-contractors can acquire lien in the same manner, whether the original contractor is paid or not, or they may give notice to the owner to stop pay- ment, and recover whatever is due the contractor. The stat- ute gives a lien on all boats and water craft for debts contracted for supplies, wages, repairs, etc. A mortgage for purchase- money has preference over a prior judgment against the pur- chaser. Mechanics and tradesmen have a lien on goods left for alteration or repair, liverymen and feeders on stock left with them, forwarding and commission merchants on goods in storage. Attorneys have a lien for their fees on all judgments taken by them, upon entering notice on the docket or order book at the time of taking, giving the amount of such fees.
Touching the law on limitation of actions, we quote from the digest of Henry D. Pierce, Esq., as follows: " Actions for injuries to person or character, and for penalty or forfeiture by statute, must be commenced within two years; against public officer or his sureties, within three years; for the recov- ery of real property sold by executors, etc., on a judgment directing such sale, by a party to the judgment, his heirs or assigns, subsequent to the date of judgment, within five years after confirmation of sale; on accounts and contracts not in writing, for use, rents, and profits of real property, for inju- ries to property, and for the recovery of personal property and damages for the detention thereof, for relief against frauds and for money collected by public officer, within six years; for the recovery of real property sold on execution, when action is brought by execution debtor, his heirs or assigns, after date of judgment, within ten years. All actions not limited by statute shall be brought within fifteen years after the same shall, have accrued; actions on written contracts, judgments of a court of record, and for the recovery of real estate, within twenty years. Persons under legal disability may bring their actions within two years after such disability is removed. Set-
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off or payment may be pleaded, notwithstanding the same are barred by statute. When a cause of action is barred by the statute of the State where the defendant resided at date of contract, the lex loci contractus shall govern the limitation. An acknowledgment or new promise, in order to operate as a new or continuing contract, must be in writing, signed by the party to be charged."
In reference to the law bearing upon the rights of married women, we have the following brief resume from the pen of the same writer: "A married woman may sue and defend alone where the action concerns her separate property, or where the action is between herself and husband. The wife may claim the benefit of the exemption law for her husband in his absence. She may qualify as an executrix with the consent in writing of her husband. Marriage, after having been appointed an administratrix, does not canse her removal if her husband consents in writing. Married women may make wilis as if single. A wife of an insane husband may contract in relation to her separate property as a feme sole. A mar- ried woman holds her real and personal property and all profits therefrom absolutely as her separate property, and they are not liable for the debts of her husband, but she cannot alien or encumber her personal or real estate unless her husband join in the conveyance. The separate deed of the husband conveys no interest in his wife's land. The courts may anthorize her to sell and convey her own real estate in case of abandonment by her husband, or his confinement in the penitentiary, and to make any contracts. By the statute of 1852, tenancies by the courtesy and dower are abolished. A widow takes one-third of her deceased husband's real estate in fee, free from all demands of creditors, where the estate does not exceed ten thousand dollars; where it does not exceed twenty thonsand dollars one-fourth only; and where it exceeds twenty thousand dollars onc-fifth only as against creditors. She takes one-third of the personalty. In all cases she takes three hundred dol- lars from the estate without accounting. If a widow marry a second husband, she cannot alienate real estate held by virtue of her previous marriage, but it goes to her children by the
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former marriage. A second or subsequent wife, if there are children by a former wife, takes only a life estate in her hus- band's lands unless she have children alive. A widow may elect to take under her husband's will, or the law. Alienage of the wife does not affect her rights if the husband is a cit-
CROSSCUP & WEST-PHIA
PROF. GEORGE W. HOSS. See page 21.
izen, or if an alien he be authorized to hold lands. The wife's interest is saved from reversion in the absence of heirs, where an estate is given to the husband in consideration of love and affection. A widow may occupy the dwelling and forty acres of land of her deceased husband, free of rent for one year."
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HISTORY OF INDIANA.
In relation to notes, bills and protest. the law is interesting and important: "Bills of exchange and promissory notes payable in banks within the State, are governed by the 'law merchant.' On all bills of exchange payable within the State, whether sight or time bills, three days of grace are allowed. Notes and bills not payable in bank are governed by statutory provisions as follows: All notes and bills are negotiable by endorsement. The assignee may, in his own name, recover against the maker. The suit must be brought in the name of the real party in interest. Whatever defense or set-off' the maker of any such instrument had before notice of assign- ment against an assignor, or the original payee, he shall have also against their assignee. The maker is entitled to all defenses against the note in the hands of the assignee which he could make against it in the hands of the payee. All notes and bills should contain the clause, 'without any relief what- ever from the Valuation or Appraisement Laws of Indiana.' The holder of a note or bill, whether negotiable by the law merchant or by the law of this State, may institute suit against the whole or any number of the parties liable; but no more · than one suit at the same term. Damages of five per cent. are allowed upon protested bills drawn or negotiated in this State, if drawn upon a person at a place out of the State; and ten per cent. if drawn upon a person out of the United States. Beyond such damages no interest or charges are allowed, except from date of protest. A holder, without consideration, cannot recover damages. Protest must, of course, be made on the last day of grace, in the usual form. If the notary's cer- tificate shows that written notices were duly given to the sev- cral parties, naming them, it is sufficient evidence of the fact."
The law in relation to taxes is important. Taxes attach as a lien on real estate on the first day of April in each year. Corporation taxes mostly attach on the first day of January. Penalties attach on the third Monday in March, annually, and after that day all unpaid taxes are collectable by distress and sale of personality. Sales of real estate for taxes occur in each county on the first Monday of February annually. All lands on which taxes are delinquent for two years are offered. After
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sale, the owner has two years in which he may redeem. If not redeemed within the time, a deed is made to the purchaser by the county auditor. In order to sustain a tax sale, the party claiming under it must show a substantial compliance with every provision of the law authorizing the sale. After four years no suit to review the title can be brought. A tax deed is only prima facie evidence of regularity of the pro- ceedings, and may be contradicted. Possession under a tax deed is adverse though the title be invalid.
As to wills, all persons of a sound mind, who are twenty- one years of age, may make wills and devise all their estate, of every kind, to any person or corporation, saving the legal provision for the widow. Married women may devise their separate property. Wills must be in writing (except nuncu- pation, bequeathing not to exceed one hundred dollars), signed by the testator or some person by his direction and in his presence, and attested by two persons subscribing as witnesses. Wills may be probated by the court of any county where the testator resided, or in which he shall die leaving assets, on proof of execution by one or more subscribing witnesses, or by proof of handwriting of the testator and of the witnesses, . in case of their incompetency, death or absence. Provisions are made by statute for contesting the validity and probate of wills, either before or within three years after offered to pro- bate. Wills executed without the State, and probated in another State or country, according to the laws thereof, may in most cases be recorded, and shall have the same effect as if executed in the State.
Regarding witnesses, no party in a civil suit is disqualified as a witness by reason of interest, and one party to the suit may compel the other to testify. Husband and wife are not competent witnesses as to matters for or against each other, or communications made during marriage. When an executor, administrator or guardian is a party, and the judgment affects the estate, neither party can testify unless called by the adverse. party. A want of belief in the Supreme Being only affects the credibility.
The criminal laws of the State of Indiana consist of well.
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defined penalties for the various crimes. The list is very long, and too tedious for insertion in this volume.
We will close this chapter with a brief notice of the courts. The supreme court of Indiana has appellate jurisdiction only from the superior, criminal and circuit courts of the State. Injunctions are granted by it in certain cases. There is no distinction among the judges; cach acts as chief justice in rotation, for a single term. The present judges of the supreme court are, five in number, as follows: John Pettit, of La Fay- ette; James L. Worden, of Fort Wayne; Samnel HI. Buskirk, of Bloomington; Alexander C. Downey, of Rising Sun, and Horace P. Biddle, of Logansport. The terms of the supreme court commence at Indianapolis on the fourth Mondays of May and November. The court sits at chambers during the greater part of the year, and causes can be submitted, by agree- ment, on briefs, at any time.
The circuit and superior courts have original concurrent jurisdiction in most civil cases, such as actions on contracts, etc. The circuit court has exclusive jurisdiction in actions for slander. In all cases of concurrent jurisdiction the court first obtaining cognizance, retains it exclusively. There are four terms of the circuit court. The terms of the superior court commence on the first Monday of each month, except July and August. An appeal from the special to the general term of the superior court is granted as a matter of right, without bond except in special cases. The superior court was established in 1871. It exists at present only in Marion county, the latter being the only county containing a city (Indianapolis) of over forty thousand inhabitants, that being requisite to the organization of this court. Judgment may be had at the first term after suit commenced, unless good cause of defense is shown. A judgment in either of these courts for less than fifty dollars does not carry costs.
Justices of the peace have jurisdiction in collections and other civil cases, to the amount of two hundred dollars, within the township where the debtor resides; but they may render judgment upon confession to the amount of three hundred dollars. Judgment can be had generally within a week or ten days.
CHAPTER XL.
OFFICIAL REGISTER OF INDIANA.
W "E will close the FIRST PART of this Volume with a list of the State officers who have served the people of Indiana, through the various grades of government, from 1800 to 1877.
TERRITORIAL GOVERNORS.
Arthur St. Clair, Governor Northwest Territory. William II. Harrison, from 1800 to 1812. Thomas Posey, from 1812 to 1816.
GOVERNORS OF THE STATE.
Jonathan Jennings, from 1816 to 1819.
Jonathan Jennings, (second term,) from 1819 to 1822.
William Hendricks, from 1822 to 1825.
James B. Ray, (acting.) February, 1825.
James B. Ray, from 1825 to 1828. James B. Ray, (second term,) from 1S2S to 1831. Noah Noble, from 1831 to 1834.
Noalı Noble, (second term,) from 1834 to 1837.
David Wallace, from 1837 to 1840.
Samuel Bigger, from 1840 to 1843.
James Whitcomb, from 1843 to 1846.
James Whitcomb, from 1846 to 1848.
Parris C. Dunning, (acting,) from 1848 to 1849.
Joseph A. Wright, from 1849 to 1852.
Joseph A. Wright, from 1853 to 1857.
Ashbel P. Willard, from 1857 to 1860.
Abram A. Hammond, acting from 1860 to 1861.
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HISTORY OF INDIANA.
Henry S. Lane, (a few days,) 1860.
Oliver P. Morton, (acting,) from 1860 to 1865.
Oliver P. Morton, from 1865 to 1867. Conrad Baker, (acting,) from 1867 to 1869. Conrad Baker, from 1869 to 1873. Thomas A. Hendricks, from 1873 to 1877. James D. Williams, from 1877 to- LIEUTENANT GOVERNORS.
Christopher Harrison, from 1816 to 1819. Ratliffe Boone, from 1819 to 1825. John H. Thompson, from 1825 to 1828. Milton Stapp, from 1828 to 1831. David Wallace, from 1831 to 1837. David Hillis, from 1837 to 1840. Samuel Hall, from 1840 to 1843.
Jesse D. Bright, from 1843 to 1845. Godlove S. Orth, (acting,) 1845. James G. Reed, (acting,) 1846.
Parris C. Dunning, from 1846 to 1848.
James G. Reed, (acting,) 1849. James H. Lane, from 1849 to 1852. Ashbel P. Willard, from 1853 to 1857. Abram A. Hammond, from 1857 to 1859.
John R. Cravens, (acting,) from 1859 to 1863.
Parris C. Dunning, (acting,) from 1863 to 1865. Conrad Baker, from 1865 to 1867. Will. Cumback, (acting,) from 1867 to 1869. Will. Cumback, from 1869 to 1873. Leonidas Sexton, from 1873 to 1877. Isaac P. Gray, from 1877 to-
SECRETARIES OF STATE.
John Gibson, Territorial, from 1800 to 1816. Robert A. New, from 1816 to 1825. William W. Wick, from 1825 to 1829. James Morrison, from 1829 to 1833. William Sheets, from 1833 to 1837. William J. Brown, from 1837 to 1841.
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OFFICIAL REGISTER.
William Sheets, from 1841 to 1845. John H. Thompson, from 1845 to 1849. Charles H. Test, from 1849 to 1853. Nehemiah Hayden, from 1853 to 1855. Erasmus B. Collins, from 1855 to 1857. Daniel McClure, from 1857 to 1858. Cyrus L. Dunham, from 1858 to 1859. Daniel McClure, from 1859 to 1861. William A. Peelle, from 1861 to 1863. James S. Athon, from 1863 to 1865. Nelson Trusler, from 1865 to 1869. Max F. A. Hoffman, from 1869 to 1871. Norman Eddy, from 1871 to 1872. John H. Farquhar, from 1872 to 1873. William W. Curry, from 1873 to 1875. John E. Neff, from 1875 to 1879. G. Shanklin, from 1879 to- AUDITORS OF STATE.
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