(123 N.E.) When such evidence has been introduced We approve the reasoning of the court in sustaining the remonstrance, the presump- the above cases, except the statement in recion growing out of the prima facie case has gard to changing the burden of proof. That served its function and cannot be considered is not the law in this state. for the purpose of weighing the evidence or for any other purpose. The presumption growing out of a prima facie case remains only so long as there is no substantial evidence to the contrary. When that is offered, the presumption disappears, and, unless met by further proof, there is nothing to base a finding solely upon it. Potts v. Pardee, 220 N. Y. 431, 116 N. E. 78. In the case of Rockfort v. Mower, 259 Ill. 604, 102 N. E. 1032, which was a suit to recover compensation for land taken for public improvements, the court says: "In this case, however, the amount awarded as compensation for the land taken was $500, while the lowest value fixed by any of the witnesses was $2,000. The report of the commissioners cannot be regarded as evidence either upon the question of value or upon the question of damages. While it is true that section 23 of the Local Improvement Act provides that such report 'shall be prima facie evidence, both of the amount of the compensation to be awarded, and of the benefits to be assessed,' we held in Chicago Terminal Transfer R. Co. v. City of Chicago, 217 Ill. 343, 75 N. E. 499, in considering the constitutionality of that provision, that the effect of the provision was merely to change the burden of proof. In discussing this question we there said: 'Statutes giving prima facie weight to facts or to official certificates are properly regarded as rules of procedure changing the burden of proof. In the absence of this statute, the city, in the case at bar, would have been required, in the first instance, to assume the burden of producing proof relative to the amount which the appellant company would be entitled to receive by way of compensation for so much of its right of way as would be also occupied by the proposed public way. The statute does no more than to declare that this amount shall be inferred or assumed from the report of the commissioners until evidence to the contrary is introduced.' When plaintiff in error introduced evidence upon the question of the value of the land sought to be taken and upon the question of the damages to the land not taken, the report of the commissioners ceased to have any weight as evidence, and it was then incumbent upon the city to meet the 'evidence offered by plaintiff in error upon these questions, unless the city was satisfied with the values and damages fixed by the witnesses for plaintiff in error. It is apparent that the jury either considered the report of the commissioners as evidence or ignored the testimony of the witnesses, and based their verdict entirely upon their view of the premises. That the jury have no right to disregard the testimony of the witnesses and base their verdict upon their view of the premises is well established in this state. Atchison, Topeka & Santa Fé R. Co. v. Schneider, 127 Ill. 144, 20 N. E. 41, 2 L. R. A. 422; Sanitary District v. Loughran, 160 Ill. 362, 43 N. E. 359; East St. Louis, Columbia & Waterloo Ry. v. Illinois Trust Co., 248 Ill. 559, 94 N. E. 149." The drainage commissioners' report in the case now being considered was only prima facie evidence of the things contained therein, and it was only admissible by virtue of the statute. Section 6151, Burns 1914 (Acts 1907, p. 508). Wilson v. Tevis, 184 Ind. 712, 111 N. E. 181; Lake Agricultural Co. v. Brown, 186 Ind. 30, 114 N. E. 755. Its only office and effect is to compel the remonstrants to go forward with evidence sustaining the remonstrance. When such evidence has been introduced sustaining the remonstrance, the presumption growing out of the prima facie case has served its function, and cannot be considered for the purpose of weighing the evidence, or for any other purpose. When such evidence has been introduced sustaining the remonstrance; the presumption falls, and the case is then tried as if no such presumption ever existed. Cleveland, etc., Ry. Co. v. Wise, 186 Ind. 316, 116 N. E. 299. dence by either party. that the finding of the court was not sustained by sufficient evidence as to the assessments upon the lands of this appellant. This shows that it was not intended as eviOur conclusion is [4] Among the reasons for a new trial, appellant alleges that said report of the drainage commissioners is not according to law, in that the following provision in said report will have a tendency to prejudice bidders against said improvement, which provision of said drainage commissioners' report reads as follows: "The contractor shall maintain the ditch and every part thereof to the full width and depth required by this report until the entire ditch and all that part embraced in this contract shall have been completed as required by this report, and the ditch is finally accepted as completed by the court, and a sufficient percentage of the contract price shall be withheld until the contractor complies with this requirement, and if he shall fail to do so, the drainage commissioners shall expend sufficient of the contract price to complete or clean out said ditch and deduct the amount from the contract price." That the amount held back is indefinite and no contractor will know how much is to be held out at the time he makes the bid. That no contractor who takes the lower portion will know how long he will have to maintain it against | lawful, and the court erred in refusing to the contractor who takes the upper portion. That the contractor who takes the upper portion or some lateral will not know how long he will have to maintain it until the entire ditch is constructed. This was one of appellant's causes of remonstrance. Appellant contends that the foregoing provision in the report of the commissioners was in violation of the law, and by reason of said provision it came within the first statutory cause for remonstrance, and that said report was not according to law; that said report conferred upon the superintendent of construction dangerous discretionary power and opened the door to fraud. The statute, section 6141 et seq., Burns 1914, requires of the commissioners a definite, accurate report, to the end that parties may know in advance the precise character of the proposed drain and that the contractor may have a definite basis for bidding. It is clear that the contractor cannot intelligently bid upon the work when he does not know how much of the contract price will be held back, or how long it will be held back. In the case of Broerman v. Spilker (1915) 183 Ind. 88, 108 N. E. 226, it was held that the court erred in overruling a remonstrance assailing a provision in the report of the drainage commissioners which provided that the interpretation of the plans and specifications by the engineer, who planned and de signed the work, should be the accepted interpretation, and in that case the court say: "The law provides that one of the parties shall be a competent engineer. It also provides for a definite, accurate report, fixing metes and bounds, courses and distances, grades and bench marks, with a computation of the cubic yards of excavation, and cost thereof. Provision is made for the services of an engineer to secure accuracy and definiteness to the end that the parties may know in advance the precise character of the proposed drain, and that contractors may have a definite basis for bidding. The engineer's duties are fully performed on the filing of the report, and the contractor is invested with no more power over the plans and specifications than is a stranger." sustain appellant's remonstrance thereto. The report was not according to law, and the petition should have been referred back to the commissioners for an amended or new report. Section 6143, Burns 1914 (Acts 1907, p. 508. § 4). Judgment reversed, and the Jasper circuit court is directed to sustain appellant's motion for a new trial, and to sustain appellant's remonstrance and refer the petition back to the commissioners for an amended or new report. (72 Ind. App. 29) SMITH V. WELLS et al. (No. 9653.)* (Appellate Court of Indiana, Division No. 1. June 19, 1919.) Appeal from Circuit Court, De Kalb County; Dan M. Link, Judge. On motion for rehearing. Rehearing denied. For former opinion, see 122 N. E. 334. P. V. Hoffman, of Auburn, for appellant. Chas. J. Brennan and Mountz & Brinkerhoff, all of Garrett, for appellee. BATMAN, C. J. Appellant, in an able brief on her petition for a rehearing, contends that the decision of the court in this case contravenes a ruling precedent of the Supreme Court, as found in certain cases cited, to the effect that beneficiaries in in surance contracts of the kind involved in this action have no vested interest therein until the death of the insured. There is nothing in the original opinion in this case, when properly construed, that either expressly or impliedly sustains this contention. We do not hold that the children of the insured had any interest whatever in the contract of insurance, as beneficiaries or otherwise, that could not have been fully and completely divested by the insured, if he had elected to do so, and had taken the proper steps to accomplish that purpose. The true purport of our holding is, not that he could not have done so, but that he did not do so. The spe cial finding of facts shows that on October Whether the commissioners could provide 14, 1907, the insured, by an instrument in in their report that a definite part of the writing, specifically designated his children contract price should be retained until the as beneficiaries in his insurance contract. work was completed, we do not decide; but The interest thus conferred was never diit seems clear that the commissioners did vested unless the tripartite agreement of not have the right to delegate to the com- June 10, 1911, worked that result. Appellant missioner of construction the power to with- insists that whether or not it worked such a hold the payment of such part of the con- result must be determined from the provitract price as he might elect. The provision sions of certain by-laws, which formed a delegating the power of the commissioner of part of the contract of insurance, which construction to withhold a sufficient per- provided that members procuring loans must centage of the contract price to complete or furnish life insurance, which, in case of clean out said ditch and deduct the amount death, will be available to discharge such from the contract price made said report un-loans, and also which limit the persons who *Transfer denied. (123 N.E.) Appeal from Circuit Court, Grant County; J. F. Charles, Judge. Action to quiet title by John A. Carter against the School Township of Liberty and others. From a judgment for defendants, and an order denying new trial, plaintiff appeals. Reversed and remanded, with directions. Bell & Dickey and R. L. Ewbank, of Indianapolis, for appellant. Orlo L. Cline, of Marion, for appellees. may become beneficiaries, but excepting from | school purposes, the grantor is entitled to resuch limitation the superintendent of the re- take the property, where it ceased to be used for lief department, when an assignment of such school purposes, even though the school authorcontract is made to him to secure a loan ities acting, under Burns' Ann. St. 1914, § from the savings feature made to the insur- 6422, enacted after the grant abandoned the school, because the average daily attendance ed. We cannot agree with this contention, was 12 pupils or less, for the conditions of but, on the contrary, hold that the effect of the grant could not be affected by subsequent such agreement must be determined from its legislation. own provisions, as stated in our original opinion, which led to the conclusion there announced. It is quite apparent that such agreement, to which both the relief department and improvement company were parties, might have been so drawn as to have fully complied with all the requirements of the by-laws and to have accomplished the result for which appellant contends, but we hold that a fair interpretation of the same shows that was not done. The improvement company and relief department could waive a strict compliance with the requirement that life insurance should be obtained and made available in case of death for the discharge of McMAHAN, J. This is an action comthe loan made the insured, and could as far as menced in May, 1916, by appellant, to quiet their interests were concerned, waive any for- his title to a tract of one acre upon which mality that may have been prescribed in that stands a building which was erected for a regard. The only right which the superin- schoolhouse. It appears from the evidence tendent of the relief department had to the that in 1897 appellant and his brother ownproceeds of the insurance certificate in ques-ed adjoining 80-acre tracts of land, and in tion came through the tripartite agreement. His power to dispose of the same was limited thereby. To read anything into said agreement not expressly stated or reasonably implied would be to make a new contract for the parties, which the law forbids. If it be said that the tripartite agreement does not control the disposition of the proceeds of said certificate because not in conformity with the provisions of the by-laws which form a part of the insurance contract, then the designation of beneficiaries made by the insured on October 14, 1907, would stand unmodified, as the evidence fails to disclose any other effort on the part of the insured to divest, limit, or incumber the contingent interest created thereby. This, however, would weaken rather than strengthen appellant's contention. A reconsideration of the questions presented leads us to conclude that the decision announced in our original opinion is correct. that year each deeded adjoining half-acre tracts to the school trustee and his successors in office, each of said deeds containing the following provision: "Whenever this property ceases to be used for school purposes, it is to revert to the grantors herein, their heirs or assigns." Appellant's brother has since died, and appellant purchased his brother's 80 acres and moved thereon, and has purchased by quitclaim deed all rights of his brother's heirs in the half-acre tract deeded by the brother. The township trustee in the spring of 1913 discontinued and abandoned this school, for the reason that during the previous school year the average daily attendance had been fewer than 12. Harlin Haisley, who was the township trustee from 1909 to January 1, 1915, testified that when he discontinued the school it was temporarily abandoned; that in 1914 the parents residing in that school district filed a petition The petition for a rehearing is therefore with him, asking that the school be opened overruled. (70 Ind. App. 604) CARTER v. SCHOOL TP. OF LIBERTY et al. (No. 9929.) again; that the enumeration was taken, and that there were only 7 or 8 pupils in the district, and he could not under the law open the school at that time; that the only reason the school was discontinued was on account of there not being a sufficient number (Appellate Court of Indiana, Division No. 2. of pupils; if there had been enough pupils June 20, 1919.) SCHOOLS AND SCHOOL DISTRICTS 65 Where grant of land for a school building provided that it should revert to the grantor whenever the property ceased to be used for in this district the school would not have been closed. This school is in district 14. The building cost about $3,000 and is in a fair state of preservation. The seats were taken out in 1914. The pupils were enumerated each year as belonging to district 14, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes but were attached to another district for school purposes. The appellant took possession of the building and real estate about a year before this action was commenced. Judgment having been rendered against the appellant, he filed a motion for a new trial, wherein he challenged the decision of the court on the grounds: (1) That it is not sustained by sufficient evidence; and (2) that it is contrary to law. Appeal from Circuit Court, Wells County; Wm. H. Eichhorn, Judge. Action by Harry E. Popejoy and others against Sam Lewis and another. From judgment for plaintiffs, defendants appeal. Cause reversed, with directions to restate conclusions of law in favor of defendants and to render judgment accordingly. Frank W. Gordon, of Bluffton, for appellants. MCMAHAN, J. Appellants owned a farm of 80 acres which they desired to exchange for a smaller one. They engaged appellees, who were real estate brokers, to find an owner of a small farm who would exchange farms with appellants. The only question for our determination is: Must contracts of this character be in writing in order to bind the owner of the real estate for the payment of a commission? If so, this cause must be reversed; otherwise affirmed. Appellee contends that it was forced to discontinue the school by reason of the provision of section 6422, Burns', which requires that all schools shall be discontinued and temporarily abandoned when the average daily attendance during the preceding year has been 12 pupils or fewer, and that the decision of the court was therefore correct. The statute referred to was enacted in 1907 and amended in 1909. It is our judgment that this statute has no bearing upon the question before us. The rights of the parties were fixed by the conditions mentioned in the deeds conveying the property to appellee, and these rights cannot be impaired by subsequent legislation. It is the duty of the court to decide this case without giving consideration to the said statute. That the appellee ceased to use the property for school purposes cannot be deThe court erred in its conclusions of law. nied. The fact that the cessation was brought about by virtue of the statute can Cause reversed, with direction to the court make no difference. The property had not to restate its conclusions of law in favor been used for school purposes since the of appellants and to render judgment acspring of 1913, a period of more than three years. Our judgment is that the evidence shows without conflict that the appellees intentionally ceased to use the property in controversy for school purposes, and that KOSTA et al. v. J. R. WATKINS MEDICAL the court erred in overruling the motion for a new trial. See Fall Creek Township v. Shuman, 55 Ind. App. 232, 103 N. E. 677. Judgment reversed, with direction to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion. It was held in Elmore v. Brinneman (No. 9855) 123 N. E. 248, decided by this court at the November term, 1918, that section 7463, Burns 1914, applied to a contract of this character, and that the broker could not maintain an action for his commission unless the contract was in writing. cordingly. (70 Ind. App. 714) CO. et al. (No. 9894.) (Appellate Court of Indiana, Division No. 1. June 19, 1919.) Appeal from Circuit Court, Jasper County; Wm. H. Parkinson, Special Judge. Action by the J. R. Watkins Medical Company and another against Joseph Kosta and others. Judgment for plaintiffs, and certain defendants appeal. Affirmed. John A. Dunlap, of Rensselaer, for appellants. James H. Chapman, of Rensselaer, and Tawney, Smith & Tawney, of Winona, Minn., for appellees. REMY, J. The questions presented by the record herein are substantially the same as those involved in the case of Hammerton v. J. R. Watkins Medical Co., 120 N. E. 710, decided by this court November 21, 1918, and upon authority of that case the judgment is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) it she will then be entitled only to what reGLOBE MERCANTILE CO. v. PERKEY- mains, if anything, after the full payment PILE et al. (No. 9664.)* (Appellate Court of Indiana, Division No. 2. June 18, 1919.) of such incumbrance. The case of Denton v. Arnold, 151 Ind. 188, 194, 51 N. E. 240, 242, involved the rights of a widow as against a purchase mortgage Appeal from Circuit Court, Jay County; lien, and in that case the court says that: Jacob F. Denney, Judge. On motion for rehearing. Denied. S. A. D. Whipple & Son, of Portland, for appellees. PER CURIAM. Rehearing denied. NICHOLS, P. J. (dissenting). After careful consideration of the matters in issue in this case, upon the petition for rehearing, I conclude that there was error in the original opinion for the following reasons: "The law made it the duty of the administrator, in the course of the administration of the estate, to pay off and satisfy this mortgage; and, it becoming necessary, as we must presume, under the facts, to subject this land to a sale to satisfy the lien in question, it was still liable to be sold by the administrator upon the order of the court for that purpose. In contemplation of law, so far as it was rendered necessary to subject this real estate to the payment of this purchase-money lien, it still belonged to the estate of the decedent, although it had been set off to appellant as her interest in his lands." To, the same effect, see Bowen v. Lingle, 119 Ind. 560, 20 N. E. 534; Fowler v. Maus, 141 Ind. 47, 40 N. E. 56. The land involved was sold only for the payment of the pur Under the statutes of this state, and law, as declared by the court, the surviving husband is the owner by descent of the undivid-chase-money mortgage. This was the only ed one-third of all real estate of which his wife dies the owner, subject to its proportion of her debts contracted before marriage. Section 3016, Burns' R. S. 1914. There being no antenuptial debts, the husband in this case became the owner of such one-third of the wife's land, subject to be divested under the conditions hereinafter. This onethird was not subject to sale for the pay ment of his wife's general debts. Hampton v. Murphy, 45 Ind. App. 513, 86 N. E. 436, 88 N. E. 876. Not even for costs of administration, or expenses of last sickness. Kemph v. Belknap, 15 Ind. App. 77, 43 N. E. 891. As against a purchase-money mortgage, in which he has joined with his wife, he has no interest in the land, until after the mortgage is paid. Vandevender v. Moore, 146 Ind. 44, 44 N. E. 3; Brenner v. Quick, 88 Ind. 546, 556; Butler v. Thornburg, 131 Ind. 237, 240, 30 N. E. 1073; Butler v. Thornburgh, 141 Ind. 152, 155, 40 N. E. 514; Hampton v. Murphy, 45 Ind. App. 513, 86 N. E. 436, 88 N. E. 876; Whetstone v. Baker, 140 Ind. 213, 39 N. E. 868; Sarver v. Clarkson, 156 Ind. 316, 59 N. E. 933; Carver v. Grove, 68 Ind. 371; Bowman v. Mitchell, 97 Ind. 155; Overturf v. Martin, 170 Ind. 308, 84 N. E. 531; Denton v. Arnold, 151 Ind. 188, 195, 51 N. E. 240. debt mentioned in the petition for sale, and the court finds that the sale was to pay and satisfy said mortgage. Under the law, it could be sold for no other purpose, and the one-third of the proceeds of the sale of the whole tract, or so much as may remain after the payment of such mortgage, belonged to the husband. There was no authority of law for using it for the payment of the general debts of the wife, not even the costs of ad. ministration and expense of last sickness and burial. We must keep in mind that the husband had no interest in this land as against said purchase-money mortgage, and it follows that his judgment creditor could have a lien on no greater interest than he had, or right to collect his debt out of any interest except the interest of the husband. This interest was only the right to the balance of the fund after the payment of the purchase-money mortgage. Shirk v. Thomas, 121 Ind. 148, 22 N. E. 976, 16 Am. St. Rep. 381. If the administrator of the estate of Scarbor Williams made a misapplication of the proceeds of the sale of the real estate, this malfeasance cannot be charged against the purchaser. 11 R. C. L. § 418. The judgment creditors had notice of the sale, which was a public sale with notice, and they had their remedy against the administrator. They had a right by proper proceeding, to fasten the proceeds of the sale belonging to the husband in the hands of the administrator, and, failing to pursue their proper remedy, they had no right to reThe case of Overturf v. Martin, supra, quire the appellant, as grantee of the purholds that, if a man dies the owner of real chaser at such administrator's sale, to pay estate with a purchase-money mortgage upon their judgments and any such payment y it, his widow's interest therein will be sub- appellant was a voluntary payment. The ject to the lien of the mortgage, and that she original opinion suggests the remedy that the can require the two-thirds of the land to be judgment creditors might have pursued, that first applied to the satisfaction of the mort- of intervening and following the funds in the gage, and if not sufficient to pay and satisfy hands of the administrator, and this sugges*Superseded by opinion in Supreme Court 125 N. E. 29. Rehearing denied. The case of Sarver v. Clarkson, supra, holds that the same rule as to the interest of the surviving husband or wife prevails, whether the lien be that of a purchase-money mortgage or a vendor's lien. |