ment of the conclusions at which they had OLDS, J. This is an action brought by the arrived. It was the province of the jury, in appellees, as plaintiffs, against the appellants, trying the cause on appeal, to determine the to obtain possession of real estate, and quiet questions involved from competent evidence title thereto. The complaint is in two paralaid before them, and not from the con- graphs. The first alleges that appellees are clusions of viewers or reviewers upon the the owners and entitled to the possession of same questions. As well might it be said the undivided one-half of lots 70 and 73, in that the verdict of a jury on the trial of a Mitchell's addition to the city of Kendallcause before a justice of the peace would be ville, Noble county, Ind., and that appellants competent evidence to prove the facts of the have possession without right, claiming title. case on the trial of the cause on appeal to the The second paragraph alleges appellees and circuit court." This language applies with appellants are tenants in common of the real as much force to the present case as in the estate, and appellants are in possession, claimcase in which the opinion from which it is ing title to the whole, and denying appellees' taken was delivered. In the case of Mc- title. Appellants answered in four paraKinsey v. Bowman, 58 Ind. 88, the learned graphs. The first is a general denial. The judge delivering the opinion says: "The re- others set up special defenses. Demurrers port of the appraisers was one of the papers were filed to each of the second, third, and in the case, upon which the trial was founded. fourth paragraphs, and overruled, and excepIt was not an instrument of evidence in its tions and reply filed, and trial had. The trial own support." The same is exactly true of resulted in a finding for the appellee Albert the report of the commissioners in the present D. Burgess that he was the owner and enticase. See Freck v. Christian, 55 Ind. 320; tled to the possession of the undivided oneBeck_v. Pavey, 69 Ind. 304; Corey v. Swag-fourth of the real estate, and in favor of the ger, 74 Ind. 211. Because of the error in admitting the report of the commissioners in evidence the judgment must be reversed. Judgment reversed, with costs. (122 Ind. 299) WALLING et al. v. BURGESS et al.1 1. As real estate belonging to a firm is liable for the debts of the firm when the personal property proves insufficient, and such real estate is regarded in equity as personal property on the death of a partner, if the personal property is not sufficient to pay all the firm debts, and it is necessary to sell the real estate to pay them, the surviving partner has the right to sell and convey the same; and if he sells and conveys in good faith, for a valuable consideration, without an order of court, he passes an equitable title.1 2. The widow of the deceased partner, having received all of the proceeds of the sale in excess of the amount necessary to pay firm debts, is estopped from claiming any interest in the realty as against the purchasers and their vendees. 3. After the widow of the deceased partner had claimed an interest in the real estate, a compromise was effected, and a suit was brought by the purchasers to quiet title. She was properly served, and authorized an attorney to appear for her. Held, that she was estopped by the decree quieting title in favor of the purchasers. 4. When, under the issues joined by general denial, the same evidence can be introduced and the same facts found as under the special answers filed, and there is a special finding of facts which control and govern the verdict rendered, the presumption that if defendants proved the defense pleaded they are entitled to judgment is removed, and the error in overruling demurrers to the special answers is harmless. Appeal from circuit court, Noble county; appellants against appellee Zoradia Hanvell, and judgment rendered accordingly, and this appeal is prayed by appellants, and errors assigned by them. Appellee Zoradia also asked and obtained leave, and assigns crosserrors. The court, at the request of the appellees, found the facts specially, and states its conclusions of law thereon. We deem it unnecessary to set out the finding of facts in full. The conclusions of law were to the effect that appellee Albert D. Burgess inherited the undivided one-fourth of the real estate from his deceased father, and that the title had not been divested, and that the appellee Zoradia Hanvell's interest was bound by a decree against her, quieting the appellants' title, in the Noble circuit court. Appellants excepted to each of the conclusions of law; also moved for judgment in their favor against both of appellees, the plaintiffs below; and also moved for judgment in their favor against appellee Albert D. Burgess,-which motions were overruled, and exceptions and errors properly assigned. The appellee Zoradia Hanvell also excepted to the conclusions of law. The facts found, summarized, amount to this: That Burgess and Hildreth were equal partners, engaged in the business of running a foundry and machine-shop, and Burgess died. At the time of his death they owned, as partnership property and as assets of the firm, the real estate in question, consisting of lots 70 and 73, on which was erected the buildings in which they conducted said business, and in which building was the neces sary machinery for conducting the business, which was attached to and was a part of the JAMES E. ROSE, Judge. A. A. Chapin and R. P. Barr, for appel-conducting the business. One of the lots was real estate, and was adapted to and used for lants. H. G. Zimmerman, for appellees. 'Concerning the general power of a partner with respect to the partnership business and property, see Bell v. Hepworth, 4 N. Y Supp. 823; Beste v. Burger, (N. Y.) 17 N. E. Rep. 734, and note; Shat tuck v. Chandler, (Kan.) 20 Pac. Rep. 225, and note. 1 On rehearing, 23 N. E. 1076. conveyed to them jointly, and the others conveyed to them by their firm name. They also owned a small amount of personal property, and the firm owed debts in excess of the value of the personal property of the firm. On the day Burgess died he made a written instru ment conveying and transferring all of his at that time to file an inventory of the assets personal property, except his household goods, and a list of the liabilities of the firm in the to one David S. Welch, in consideration of clerk's office, but no forfeiture attached if he one dollar, in trust to be sold by him, and failed to do so; and, if the survivor proceedthe debts of Burgess to be paid out of the ed to settle the partnership, accounted for the proceeds, and balance to be paid to his heirs assets, and paid the debts, we fail to see how pro rata, according to their legal interest. he would be deprived of any right which he Burgess died, leaving Hildreth as surviving would have possessed if he had filed the inpartner. At the time Burgess died the assets ventory of assets and list of liabilities, as proof the firm, independent of the lots and fixt- vided for by the statute. According to the ures, amounted to the value of $1,005.40, and settled law of this state, and which is supthe indebtedness of the firm amounted to ported by many authorities, the lots in con$2,564, leaving a deficiency of $1,558.60, aft- troversy were liable for the debts of the firm, er applying the proceeds of the personal and are regarded in equity as personal propproperty to the payment of the debts. Welch, erty, and liable to be sold for the payment of with the consent of Hildreth, and in the be- the firm debts. As against the firm creditors lief on the part of Welch and Hildreth that and firm liabilities, the widow and heirs of he had the authority to do so, took possession the deceased partner took no interest in this of the Burgess interest in the partnership, property. The property, (the lots in quesand Welch and Hildreth ran the business for tion,) according to the finding of the court, a time in the name of Welch & Hildreth. were at that time, the date of the death of Then, with the consent of Hildreth, Burgess Burgess, worth $4,458.28, and were liable sold and conveyed the one-half interest in the for $1.558.60 of firm indebtedness, and subbusiness and property, including the real es-ject to sale for the payment of the same; and tate, to Hopkins & Hopkins, in consideration | the widow and heirs of the deceased partner, of $2,400 and the payment of one-half of the Burgess, had an interest in the undivided firm debts. In the sale by Welch to Hop- half in excess of the amount necessary to pay kins & Hopkins, he purported to act as trus- said firm indebtedness. tee of the Burgess estate, and he and Hil- It is held in the case of Huston v. Neil, 41 dreth believed he had the right to so act and Ind. 504, that when the members of a firm exconvey a good title, and Hopkins & Hopkins ecuted a mortgage without the wives of the also relied on his having authority to convey. individual members of the firm joining, and Hildreth and the Hopkinses ran the business which was foreclosed without the wives befor a short time, and the Hopkinses sold out ing made parties, and sold for the payment to Hildreth, and Hildreth executed his note to of the mortgage debt, that, as there was Welch for the balance that the Hopkinses were no surplus above the payment of the mortto pay him, and paid the Hopkinses the bal-gage debt, the wives had no interest in the ance, and borrowed $2,333 in money, part of which he used in paying firm debts, and the balance in making improvements on the property. Hildreth paid off the indebtedness, and paid Welch, and Welch paid over to the widow of Burgess, Zoradia Burgess, all he received for the purchase. Albert D. Burgess was a minor. Afterwards Hildreth sold and conveyed all the property, including the real estate in question, to the appellants and one Amos B. Park. Zoradia claimed an interest in the real estate for herself and minor son, Albert D., and a compromise was effected, and a suit brought by appellants and Amos B. Park against them to quiet title. Zoradia was properly served, and authorized an attorney to appear for her. Albert D. was at the time a minor and a resident of Ohio, and the notice as to him was insufficient, and he was sued by the wrong name. A guardian ad litem was appointed for him, and judgment was rendered against them, quieting title in the plaintiffs to that suit against the appellants. Amos B. Park afterwards sold and conveyed his title to the appellant Henry S. Park. All of these sales were made in good faith, and for the full value of the property. The firm being in the financial condition which it was, it is important to inquire into the authority of Hildreth, as surviving partner, in the settlement of the partnership. It was made the duty of the surviving partner real estate, and were not necessary parties. Suppose, for instance, that, immediately before the death of Burgess, Burgess & Hildreth had sold and conveyed their real estate without the wife of Burgess joining, and the purchase money had been paid to the members of the firm, and become a part of the partnership assets, it would seem clear that the widow and heirs could not have claimed and held any interest in the real estate so sold and conveyed. One of the purposes and objects of treating the partnership real estate as personal property in equity is that it may be sold and conveyed by the members of the firm in the usual course of business without the wives of the individual members joining in the conveyance. Were it otherwise, the business of the firm might be stopped, and the partners unable to realize on the assets of the firm by reason of the wife of one of the members refusing to join in a conveyance of the real estate. When Burgess died, Hildreth survived and became the only member of the firm, and, what the partners themselves might have done in the life-time of Burgess, Hildreth might do alone, if necessary to pay the debts of the firm and settle the partnership. In case of a sale by the partners in the lifetime of all, the excess of the purchase money above paying debts becomes assets of the firm, in which the widow and heirs of a partner whose death occurs afterwards would be entitled to their respective shares, and the ex- | partner, it could not invalidate the sale finally cess of the purchase money, above paying made by Hildreth, the surviving partner. deb's of the firm, of a sale made by a surviv- The right was in Hildreth to sell and convey ing partner, would go to the widow and heirs on settlement of the partnership. the real estate and liquidate the firm debts, and he undertook to sell and convey all of the property, and such sale and conveyance passed the equitable title. The facts found show the property was sold for its full value, and that the widow received all of the proceeds of the sale in excess of the amount necessary to pay the firm debts. Clearly, she is estopped by that act from claiming any interest in the real estate as against these appellants, and she is likewise bound by and precluded by the decree entered against her in the Noble circuit court, quieting the title, from setting up any claim of title to the real estate. The conclusion, therefore, is irresistible that, in case of the death of a partner, the survivor or survivors must pay the debts out of the personal property, if there is sufficient personal property to do so, and the widow and heirs of the deceased partner in that event would have the right to the share of the deceased partner in the real estate owned by the firm; but if the personal property is not sufficient to pay all the debts of the firm, and it is necessary to sell the real estate of the firm to pay the debts of the firm, the surviving partner has the right to sell and convey The conclusions of law in favor of appelthe same. If he sells and conveys the same lee Albert D. Burgess are erroneous. The in good faith, for a valuable consideration, conclusions of law on the facts found ought without an order of court, he passes an equi- to have been that the appellants, the defendtable title to the same to the purchaser. Ap-ants below, are the equitable owners of the plying this rule to this case, at the death of Burgess, after applying the personal property to the payment of the firm debts, there yet remained $1,558.60 of firm debts unpaid, and no assets to pay the same except the real estate, the two lots in question in this case, which the findings in effect show to have been improved together in a manner suitable and proper for the business in which the partners were engaged, and were partnership real estate, and indivisible; and Hildreth had the right to sell the same, and apply the proceeds to the payment of said firm debts; and, having that right, he did sell and convey the same in good faith to the appellants and one Amos B. Park, who afterwards conveyed his interest to appellant Henry S. Park; and they took possession, and made valuable improvements, and the proceeds named from such sale went to the payment and liquidation of the debts of the firm. True, the findings show that there had been some other sales by Welch, purporting to act as the trustee of the deceased partner's interest, and the form of the original indebtedness may have changed to some extent; but all of these transactions and sales were made in good faith, and the money which finally liquidated and paid the debts came from the sale to the appellants, in consideration for which Hildreth, the surviving partner, conveyed them the partnership property in question in this case, and Hildreth paid all the firm debts. This, we think, passed the equitable title to all of the real estate, and not merely a sufficient interest to pay the firm debts, and that, too, whether there was afterwards a full and legal settlement and accounting by the surviving partner with the legal representatives or heirs of the deceased partner or not. Taking this view of the case, it is immaterial to consider and determine the legality of the sale made by Welch, as trustee; as, the conveyance made by Welch to the Hopkinses, and by them to Hildreth, being made in good faith, and in no way diverting or squandering the interest of the deceased real estate in question, and there should have been a judgment in favor of the defendants against both of the plaintiffs below for costs. We are aware that the authorities are not all in harmony on the question under consideration, but we think the doctrine we have laid down fully supported by authority, and the logical conclusions which follow from established principles. Parsons on Partnership states the rule thus: "The following, then, is the American rule: Real estate, purchased and held as partnership property, is so treated in equity, and subjected to all the incidents of partnership property. If there be death, the surviving partner, whether he hold the whole title, or hold it in part, or hold none of it, if he be a creditor of the partnership, has the same rights against the real estate, and only the same, which any other creditor has. But this real estate goes to pay the debts of the partnership, and only after they are paid does it, or what is left of it, become the property of the partners, or their representatives, free from all claims." Pars. Partn. (3d Ed.) top p. 403, *372. In the case of Shanks v. Klein, 104 U. S. 18, Justice MILLER delivering the opinion, it is held that real estate purchased with partnership funds for partnership purposes, thoughi the title be taken in the individual name of one or both partners, is in equity treated as personal property so far as necessary to pay the debts of the partnership, and to adjust the equities of the copartners; and for this purpose, in case of the death of one of the partners, the survivor can sell the real estate so situated, and, though he cannot convey the legal title which passed to the heirs or devisees of the deceased partner, his sale invests the purchaser with the equitable ownership of the real estate, and the right to compel a conveyance of the title from the kin or devisee in a court of equity. Tillinghast v. Champlin, 67 Amer. Dec. 514, and authorities cited in note, p. 541; Grissom v. Moore, 106 Ind. 296, 6 N. E. Rep. 629; Haas v. Shaw, 91 Ind. 384–396. In note to McCor (120 Ind. 476) mick's Appeal, 98 Amer. Dec. 200, the edit- | law on the facts found that the defendants or, in speaking of the difference in the rule are the owners of all the real estate in quesin England and this country, says: "But in tion and described in the complaint, and enthis country, when the objects of the conver- titled to judgment for their costs; and to sussion have been accomplished, a reconversion tain the motion of the defendants for judgtakes place. When the property has fulfilled ment in their favor against the plaintiff Alall its functions as personal property in re- bert D. Burgess, and to render judgment in spect to the partnership, the partners, and the favor of defendants against said Albert D. creditors, and is no longer wanted for those Burgess; and the judgment is affirmed against purposes, it becomes, in the hands of those appellee Zoradia Hanvell. who hold the legal title, real estate, and subject to all incidents as such." See authorities there cited. This we think the true doctrine; but while it remains personal property it is subject to being sold and conveyed by the partners or the surviving partners, and when it becomes necessary to sell a parcel of Const. Ind. § 21, art. 4, provides that no act real estate which is indivisible, to apply a shall be set forth and published at length. Act shall be amended by its title, but the amended act portion of the proceeds to the payment of March 11, 1889, is entitled "An act to amend secfirm debts, the sale in good faith, for a valu- tion 6 of an act entitled, " etc., setting out the title able consideration, passes the equitable title of the act to be amended in full, and reciting that to the whole tract, and the heirs of the de-section 6 is identical with section 5317, Rev. St. cedent, or his legal representatives, take the surplus of the proceeds, instead of the real estate. BUSH v. CITY OF INDIANAPOLIS. (Supreme Court of Indiana. Oct. 30, 1889.) AMENDMENT OF STATUTES. The body of the act recites that "section 5317 of the Revised Statutes of 1881" is "amended to read as follows." Held a substantial compliance with the constitutional requirement. Appeal from circuit court, Marion county; LIVINGSTON HOWLAND, Judge. The city of Indianapolis sued Charles H. Bush for violation of a city ordinance as to the sale of intoxicating liquors. From a judgment for plaintiff, defendant appeals. Duncan & Smith and Claypool & Ketcham, for appellant. W. L. Taylor and H. E. Smith, for appellee. Cross-errors are assigned by appellees. It is contended that the court erred in overruling demurrers to each of the second, third, and fourth paragraphs of answer. If errors were committed in such rulings, they were harmless errors. It is held by this court that if a demurrer is overruled to a bad answer, and there is a general finding, it is error. The effect of upholding a bad answer is to adjudge that, if the defense pleaded is proved, the defendant is entitled to a verdict. Over COFFEY, J. The legislature of the state of v. Shannon, 75 Ind. 352. This is manifestly Indiana at its last session passed the followtrue when there is a general finding, but ing act, viz.: "An act to amend section six when there is a special finding of facts they (6) of an act entitled An act to regulate control the judgment, and, unless the facts and license the sale of spirituous, vinous, found entitle the defendant to a judgment, and malt and other intoxicating liquors; to one cannot be rendered in his favor, no dif-limit the fee to be charged by cities and ference what may have been pleaded in the towns; prescribing penalties for intoxication, answer. In this case, under the issues joined and providing for the recovery of damages by the general denial, the same evidence could for injuries growing out of unlawful sales of be introduced, and the same facts found, as intoxicating liquors; to repeal all former under the special answers filed; and there is laws regulating the sale of intoxicating liqa special finding of facts which control and uors, and all laws and parts of laws coming govern the verdict to be rendered, so that it in conflict with the provisions of this act; removes the presumption that if the defend-prescribing penalties for the violation thereants prove the defense pleaded they are en- of, and declaring an emergency,'-being sectitled to judgment, and makes it affirmatively tion 5317 of the Revised Statutes of 1881. appear that no harm resulted by reason of an Section 1. Be it enacted by the general aserroneous ruling, if there was one on the de-sembly of the state of Indiana that section murrers to the answers, and brings the case within a well-recognized rule, that a cause will not be reversed on account of a harmless error. Tracewell v. Farnsley, 104 Ind. 497, 4 N. E. Rep. 162; Nixon v. Campbell, 106 Ind. 47, 4 N. E. Rep. 296, and 7 N. E. Rep. 258; Krug v. Davis, 101 Ind. 75. Some other cross-errors are assigned, all of which we have considered, and find no error, and do not deem it proper to extend this opinion by stating the questions at length. The judgment is reversed as to appellee Albert D. Burgess, at his costs, with instructions to the court below to restate its conclusions of law, by stating as a conclusion of 5317 of the Revised Statutes of 1881 be amended so as to read as follows: No city or incorporated town shall charge any person who may obtain a license under the provisions of this act more than the following sums for license to sell within their corporate limits: Cities may charge one hundred and fifty dollars, and incorporated towns one hundred dollars, in addition to the sum provided for herein before."" Acting under the permission granted by this act, the city of Indianapolis, on the 19th day of June, 1889, passed an ordinance requiring persons desiring to sell intoxicating liquors in the corporate limits of said city to pay a license fee of $250 to said city in order to procure a license for the constitutional requirement is fulfilled by that purpose. The appellant having pro- setting out the section as amended. In the cured a license from the board of commis- case of Feibleman v. State, 98 Ind. 516, it sioners of Marion county authorizing him to was held that the section of the constitution retail intoxicating liquors within the cor- now under consideration required that an act porate limits of the city of Indianapolis, act- amending a former statute should refer to ing upon the assumption that the act above the title of the act sought to be amended. It set out was unconstitutional, and that sec- must be obvious to every one, however, that tion 6 of the act sought to be amended was this section of the constitution, as well as all still in force, tendered to the proper officer other constitutional provisions, is to be con$100, the amount required under former city strued in the light of the evil sought to be ordinances to procure a city license, and de- remedied or avoided. The constitution of the manded a license to retail intoxicating liq-state of Michigan contains the following prouors in said city. Such license being refused, he proceeded to retail intoxicating liquors without a city license. This suit was instituted by the appellee against the appellant to recover the penalty imposed by the ordinance of June 19, 1889, for selling intoxicating liquors within the corporate limits of said city without a city license so to do. It is earnestly contended by the learned counsel for the appellant that if it was the intention of the legislature, by the act in question, to amend section 6 of the act of March 17, 1875, that it so far departed from the requirements of section 21, art. 4, of the constitution of the state, that such intention was utterly futile; while, on the other hand, it is contended by the appellee that in the passage of said act the legislature did comply strictly with the requirements of said section 21, art. 4, of the constitution. It is now so well established that it requires no argument, or even citation of authorities, that there are three classes of laws which are unconstitutional, viz.: (1) Acts passed by a legislative body relating to matters over which it has no power to legislate; (2) acts passed by a legislative body where it neglects to observe the forms required by the constitution necessary to give such act validity as a law; and (3) acts passed by legislative bodies which are inhibited by some constitutional provision. It is not claimed by the appellant that this act falls within either the first or third class, but it is contended that it does fall within the second class. vision: "No law shall be revised, altered, or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length." Const. art. 4, § 25. In the case of People v. Mahaney, 13 Mich. 481, where the construction of this constitutional provision was involved, Judge COOLEY said: "The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect; and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another, in an act or section which was only referred to, but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation." In the case of Mok v. Association, 30 Mich. 511, where this provision of the constitution was again called in question, the same learned judge says: "Alterations made in the statutes by mere reference, and amendments by the striking out or insertion of words, without reproducing the statute in its amended form, were well calculated to deceive and mislead, not only the legislature as to the effect of law proposed, Section 21, art. 4, of our state constitution, but also the people as to the law they were to is as follows: "No act shall ever be revised obey, and were, perhaps, sometimes presentor amended by mere reference to its title; but ed in this obscure form from a doubt on the the act revised or section amended shall be part of those desiring or proposing them of set forth and published at full length." This their being accepted if the exact change to be provision is found in the constitutions of Ne- made were clearly understood. Harmony vada, Oregon, Texas, and Virginia, and pro-and consistency in the statute law, and such visions of similar import are to be found in a clear and consecutive expression of the legthe constitutions of Kansas, Ohio, Michigan, islative will on any given subject as was deLouisiana, Wisconsin, Missouri, and Mary- sirable, it had been found impracticable to land. It was formerly held by this court secure without some provision of this natthat, in order to constitute a valid amend- ure. These opinions, we think, clearly and ment to a statute under this constitutional concisely state the object sought to be atprovision, it was necessary, not only to set tained by the framers of our constitution in out the section as amended, but also the sec-section now under consideration. tion to be amended. Langdon v. Applegate, In the light of this object, we proceed to 5 Ind. 327; Rogers v. State, 6 Ind. 31. But in the case of Turnpike Co. v. State, 28 Ind. 382, these decisions were overruled, and it is now well settled that it is not necessary to set out the section to be amended, and that the examination of the question involved in this case; and in doing so it is not improper to remark that under our constitution it takes both the title and the body of an act to constitute a valid law. It is true that the con |