plans, and provide for the construction of such sewers or drains as in the judgment of its officers were fit and necessary to carry the water off the streets. The facts stated show that the city had adopted a plan which contemplated the construction of a stone gutter commencing at low-water mark, and extending, with increasing width, a distance of 250 feet, to the top of the bank. For the protection of this work, it was necessary to fill in on either side with earth. The appellant agreed to make this filling in consideration of the grant of an exclusive privilege to use the ground for a private wharf. After doing work which it is averred cost more than $1,000, and which inured to the benefit of the city, the authorities changed the plan so as to render the work done by the appellant utterly valueless to him in the creation of a private landing. to construct and maintain the proposed gut- | Leeds v. City of Richmond, 102 Ind. 372, 1 ter, and also to build and maintain abutments N. E. Rep. 711. It was also within the unand stone walls necessary to protect the street doubted discretion of the city to adopt proper on the land owned by Gaff. Afterwards, in the year 1875, having constructed the gutter as proposed, for a distance of 100 feet upward from low-water mark, the city leased the ground acquired from Gaff to the plaintiff for a period of 10 years, to be used for a private landing. The latter agreed, as a consideration for the lease, to fill in with earth on each side of the gutter then constructed, and thereafter to be completed, to the width of 50 feet. It is averred that the plaintiff filled in over 5,000 cubic yards of earth along the sides of that part of the gutter which had been completed; that the filling and paving so done by the plaintiff cost, and was of the value of, $1,000; that it benefited the city, to an amount exceeding the cost of the work, by protecting and holding in place that part of the gutter which had been completed. The plaintiff charges that the city refused to complete the work according to the agreement, and in conformity with the plans and specifications adopted; that, instead of carrying the paved gutter up to the top of the bank, it constructed wooden culverts or chutes, through which the water was conducted from the top of the river-bank down to the point where the gutter had been completed at the time the lease was made. It is averred that if the gutter had been completed according to the plan proposed, and in the manner agreed upon, the ground leased, when filled as contemplated, would have constituted a desirable landing or wharf, but that in the condition in which it was left it was of no value whatever; and that the expense incurred and labor performed by plaintiff had been wholly lost, to his damage, etc. It is contended, in support of the judgment below, that the city of Aurora exceeded its power in attempting to lease the tract of land, over which it had acquired an easement to conduct the surface water from the streets of the city by means of gutters, to the plaintiff, for his exclusive use as a private landing; and that, since the contract was void as a lease, all the auxiliary covenants are discharged. It is conceded that if the appellant had paid money into the city treasury he would be entitled to recover it, in the proper form of action; but it is said he has parted with nothing,-the city has simply changed its plan, and remained inactive; hence there is no right of recovery in an action for damages for a breach of the contract. The facts, as we view them, make a case of a different complexion. Cities have authority to construct sewers and drains for the protection and improvement of the streets, and, as incident to that power, they have the right to acquire land in the ordinary methods, in order to carry out the principal power. 2 Dill. Mun. Corp. §§ 574, 575. The city had the unquestioned power to acquire an easement in the land subsequently leased to the appellant, as an outlet for its drains or sewers. It is not necessary that we should inquire into the power of the city to make the lease in question. We have seen that it had the power to acquire the ground and construct the work proposed. If we concede that the lease was void, and conferred no privilege on the appellant, it by no means follows that the city may retain the benefit of the work performed without paying, at least, what it would have cost to protect the gutter which it had constructed. Where a city or municipality receives the benefit of money, labor, or property upon a contract made without due formality, or which it had no authority to make, and which it refuses to execute, it will nevertheless be liable to the person conferring the benefit to the extent of the value of what has been received and appropriated, unless the contract was prohibited by statute, or in violation of public policy. Board v. Railway Co., 47 Ind. 407; City of Logansport v. Dykeman, 116 Ind. 15, 17 N. E. Rep. 587. As was said in Bass Foundry v. Board, 115 Ind. 235-244, 17 N. E. Rep. 593, "when a corporation has received the money or property of an individual, under color of authority, and has appropriated it to its necessary and beneficial use, it will not be heard to assert its want of power to pay the value of what it has received, and still retains." Dill v. Wareham, 7 Metc. 438; Hitchcock v. Galveston, 96 U. S. 341. The case last cited is directly in point, and the principles which ruled the decision control our judgment. The city of Galveston, proposing certain street improvements, entered into a contract for the construction of the work, agreeing to pay for it by delivering to the contractors certain bonds to be issued by the city. Subsequently the city refused to issue the bonds, or pay for the work, on the ground that the agreement to issue bonds was ultra vires, and void. Conceding that the contract was inoperative so far as it related to the issuing of the bonds of the city, it was held that it was lawful in other respects, and that the city was liable for the work done under OLLS, J. This is an action by the apper it. So, without inquiring into the power of lee against the appellants for the rescission the city to make the lease in question, since of a contract of sale of real estate on the it was confessedly within its power to make ground of fraud. The appellants each filed the improvement upon which it had entered, separate demurrers to the amended complaint. and to cause the work done by it to be pro- Appellants jointly and severally assign ertected, the conclusion follows, to the extent rors: First, that the court erred in overrulthat the contract relates to the improvement, ing the demurrers to the amended complaint; it is valid, and imposes upon the city the ob- second, that the court erred in overruling ligation to pay for the benefits received under the appellants' separate motions for new it. The city proposed to compensate the plain-trial; third, that the court erred in overrultiff for his work by granting him the right to ing appellants' motion to modify the judguse the ground for a private landing. Subse- ment. The amended complaint avers that quently, owing to a change in the plan of the on the 22d day of January, 1887, the plaintiff work it was found that no landing could be was the owner in fee-simple of certain real made. The city had an undoubted right to estate, describing it, containing 38 acres, in change the plan of the work, and of this right Jay county, Ind.; that on said day the dethe appellant was bound to take notice. It was fendants, Thomas R. Turner and Benjamin not competent for the city to bind itself to F. Tucker, falsely and fraudulently, and for construct an expensive public improvement the purpose of cheating and swindling the at a future time, in order that a valuable plaintiff, procured the plaintiff to convey to wharf might be created for the appellant's said defendant Turner the real estate deprivate use. A municipal corporation can- scribed, and said Turner has since conveyed not by contract bind itself, when such con- the same to said Tucker; that said Tucker tract involves the surrender of the exercise had and held certain promissory notes, of a discretionary right which it is the duty of the corporation to exercise for the public good. City of Peru v. Gleason, 91 Ind. 566, and cases cited. But, having changed the plan of the improvement so that the result was an appropriation of the plaintiff's work, it cannot now be heard to say that it has no power to pay for what it has received. So far, therefore, as the appellant's complaint counted upon a right to recover for the failure of the city to complete the work as proposed, the demurrer was properly sustained. The complaint was, however, broad enough to include a right to recover for the work done, the benefit of which inured to the city. In that respect the complaint stated facts sufficient to constitute a cause of action. The judgment is reversed, with costs. (121 Ind. 143) TURNER et al. v. ENGLE. (Supreme Court of Indiana. Nov. 22, 1889.) RESCISSION OF CONTRACTS-PLEADING. A complaint, in an action to rescind a contract of sale of land, which alleges that defendants fraudulently, and to cheat the plaintiff, induced him to convey the land; that false representations were made to him concerning the value of certain promissory notes, which defendants agreed to indorse to him; that he relied on such representations; that upon the false representations he conveyed to the defendants the land and a horse; and that he tendered back the notes; but nowhere alleging that the notes were to be taken as part consideration for the land, or that they were ever transferred to the plaintiff as payment for the land, or at all,-is demurrable. amounting to $700, signed by one William T. Ayres, and payable to said defendants, which notes the defendants "falsely and fraudulently represented to said plaintiff were good, solvent, and collectible notes," and further falsely and fraudulently represented that said William T. Ayres was a solvent man, and was financially good, and would and could pay said notes at any time, and would exchange for said notes good collectible notes now due; that they further falsely and fraudulently represented that said notes were secured by first mortgage on certain valuable real estate in Jay county, Ind., and that they would indorse said notes to him,-all of which statements so made were false and fraudulent, and were known to be so by said Turner and Tucker, and each of them, and were made for the purpose of inducing said plaintiff to enter into said trade; that said plaintiff was ignorant, and could not read or write, and had no knowledge of business matters, and was induced by said defendants not to make inquiry thereto; that plaintiff relied on said statements so made, and believed them to be true; that in truth and in fact said notes were wholly worthless; that said William T. Ayres at the time was and still is wholly insolvent, having no property, and could not pay said notes, and had no notes to exchange therefor, but is wholly and totally insolvent; that said notes were not secured by first mortgage on any real estate, and said defendants did not indorse them to him; that upon said false representations said plaintiff conveyed said lands to Appeal from circuit court, Jay county; J. said defenuants, and also delivered to them R. BOBO, Judge. Action by William Engle against Thomas R. Turner and Benjamin F. Tucker. Judgment for plaintiff. Defendants appeal. Taylor & Hartford, for appellants. J. W. Headington, J. J. M. La Follette, and J. F. La Follette, for appellee. one horse, of the value of $150, and said defendants paid him, as a difference, $40; that as soon thereafter as the plaintiff learned of said fraudulent character of said transaction, and that all of said statements were false, and that said notes were wholly worthless, ho went to said defendants, and tendered to them said notes, and said sum of $40, and | 94 Ind. 263. Some other questions are disdemanded a reconveyance of said land, and cussed as to the variance between the comthe possession of said horse, and offered to plaint and the evidence offered in support of pay all the expenses connected therewith, it, but, as the complaint will have to be which said defendants refused to do, and amended, this question will probably not plaintiff brings the notes and money into arise on a retrial of the cause. The cause court. Prayer for a rescission of the con- having to be reversed on account of the intract, and for other proper relief. The ap- sufficiency of the complaint, it is not necespellants each filed a separate demurrer to sary to pass upon the questions presented, this complaint, for cause that it does not which arose on the trial or in the rendition state facts sufficient to constitute a cause of of the judgment. Judgment reversed, at action, and the overruling of these demurrers the costs of the appellee, with instructions to is assigned as error, and the question is pre- the circuit court to sustain the demurrer to sented as to the sufficiency of the complaint the amended complaint. to withstand a demurrer. Several objections are urged to the complaint, one of which is that it nowhere appears that the defendants transferred the notes to the appellee in payment for the land, and, this objection being urged, we are required to pass upon it. The objection to the complaint is not so much as to what is averred, but on account of what is omitted to be averred. It does not appear by any averment in the complaint as to what was the consideration paid or to be paid for the land, or that the plaintiff was induced to exchange the land for the notes, or that the notes were taken in part or in full consideration for the land. It is averred that the defendants fraudulently, and for the purpose of cheating and swindling the plaintiff, induced the plaintiff to convey the land to Turner. Then follow the false representations made about the notes, among which is the averment that the defendants agreed to indorse the notes to the plaintiff, but it is not stated what was to be the consideration for such indorsement. Then it is averred that plaintiff relied on the representations, and believed them to be true, and that they were not true, and it is averred that the defendants did not indorse the notes, and nowhere is it alleged that they were transferred by the defendants to the plaintiff in any way. It is further averred that upon the false representations plaintiff conveyed to the defendants the land, and delivered to them a horse, and they paid him $40 of a difference. Then it is alleged that the plaintiff tendered back the notes, but it does not appear by averments in the complaint, nor can it be legitimately inferred from any averments, if it was proper to draw inferences from facts alleged in a pleading in order to sustain it, that the plaintiff was to receive the notes as a part consideration for the land, or that they have ever been transferred by the defendants to him in payment for the land, or that the defendants ever in fact made any transfer of the notes to the plaintiff. From aught that appears in the complaint, all of its averments may be true, and the plaintiff may have paid some other consideration for the notes, or received them from some third person, or they may have been the property of some third party when he tendered them to the defendants. The complaint, therefore, is clearly bad for the reasons pointed out. Bish v. Van Cannon, v.22N.E.no.22-56 (123 Ind. 21) MCANINCH et al. v. DENNIS. (Supreme Court of Indiana. Nov. 23, 1889.) FRAUDULENT CONVEYANCES-PLEADINGS. In an action to set aside, as fraudulent, conveyances of land by an insolvent debtor to one who reconveys to the debtor's wife, it is not necessary to allege fraud, or knowledge of the fraud, or knowledge that the debtor was insolvent, on the part of those taking the voluntary conveyances without consideration. Appeal from circuit court, Clinton county; A. E. PAIGE, Judge. Action by Albert T. Dennis against John McAninch and others to set aside conveyances of real estate. Demurrers to the complaint were overruled, and defendants appeal. James N. Sims, for appellants. Doyal & Gard, for appellee. OLDS, J. This is an action, brought by the appellee against the appellants, to set aside two conveyances of real estate,-one by John McAninch and his wife, Martha, to Valentine McAninch, and one by Valentine McAninch and his wife, Angie H., to said Martha A. McAninch, and to subject the said real estate so conveyed to execution and sale, to satisfy a judgment obtained by the appellee against John McAninch and Milton McAninch. The complaint alleges that said conveyances were made without any consideration whatever; that on March 17, 1883, one of the defendants, John McAninch, together with one Milton A. McAninch, became indebted to plaintiff, by their note of that date, in the sum of $100, due in 12 months, payable without relief from valuation or appraisement laws, with 8 per cent. interest, and attorney's fees; that on the 20th day of February, 1886, the plaintiff recovered a judgment on said note in the Clinton circuit court against the defendants John McAninch and Milton A. McAninch for the sum of $133 and costs, amounting to $150.80, which judgment is in full force, and wholly unpaid and unsatisfied; that on the 1st day of October, 1885, the defendant John McAninch was the owner in fee of the following real estate, (describing it,) and on said day said defendant John, for the purpose and with the intent to hinder, delay, and defraud his creditors, and especially this plaintiff, conveyed Rehearing denied. JONES v. VERT et al. (121 Ind. 140) (Supreme Court of Indiana. Nov. 23, 1889.) RES ADJUDICATA. A suit to enforce a vendor's lien is not barred by a suit by a mortgagee to foreclose a tiff was made a party defendant, and in which a mortgage on the land, in which the present plaindecree was rendered quieting title in the present defendants against all the parties to that suit except a mortgagee. said property, by warranty deed, to his co- the overruling of the motion assigned as er defendant, Valentine S. McAninch for the ror. We have looked into the evidence, and colorable consideration of $3,000, but for no find it is sufficient to support the finding. actual consideration whatever; that said Val-There is no error for which the judgment entine S. McAninch, on the 26th day of No- should be reversed. Judgment affirmed, with vember, 1885,-his wife, Angie H. McAn- costs. inch, joining him,-conveyed said real estate to the defendant Martha A. McAninch, the wife of John McAninch, for the colorable consideration of $3,000, but for no actual consideration whatever; that said Milton A. McAninch, one of the makers of said note upon which judgment was rendered, is, and and ever since said note became due has been, insolvent, and has had no property subject to execution out of which said judgment could be paid, and he has paid no part of said judgment; that defendant John McAninch Appeal from circuit court, Hamilton counhad not at the time either of said convey-ty; D. Moss, Judge. ances were made, nor has he since had, nor Garver & Pfaff and Stephenson & Fertig, has he now, sufficient other property subject for appellant. Little & McKee, for appeilees. to execution to pay his debts or this judgment, or any part thereof. Demurrers were filed to this complaint by the defendants separately, and overruled, and such rulings as signed as errors. The objections urged to the complaint by counsel for appellants are that it does not allege that either Valentine or Martha McAninch, at the time of the conveyance, had any knowledge of the existence of John McAninch's indebtedness to the plaintiff, or of his fraudulent intent, or that Valentine conveyed to Martha with any fraudulent intent, or that Martha had any knowledge of the source of Valentine's title. These objections are not tenable. The complaint alleges the total insolvency of Milton McAninch at the maturity of the note, and at all times subsequent thereto; also, that at the date of the conveyances, and at all times subsequent thereto, the defendant John McAninch had no property subject to execution except the real estate conveyed, and that he conveyed the real estate to hinder, delay, and defraud the plaintiff, and his other creditors; that neither Valentine McAninch nor Martha, the wife of John McAninch, paid any consideration; that the conveyances were both without any consideration whatever. It is shown by the complaint that John McAninch, being insolvent, and ́having no property subject to execution, aside from the real estate, fraudulently conveyed to Valentine, and Valentine and wife conveyed the same back to Martha, the wife of John; both conveyances being without any consideration whatever. It is not necessary to allege fraud, or the knowledge of the fraud, on the part of the person taking a voluntary conveyance without consideration. This doctrine is well settled by the decisions of this court. Spaulding v. Blythe, 73 Ind. 93; Meredith v. Bank, 92 Ind. 343; McCole v. Loehr, 79 Ind. 430; Barkley v. Tapp, 87 Ind. 25; Bishop v. State, 83 Ind. 67. MITCHELL, J. This was an action by Sallie D. Jones against John Vert and others, heirs of William Vert, deceased, to enforce and foreclose a vendor's lien on real estate, for unpaid purchase money due the plaintiff from the estate of William Vert. The defense was predicated on the following facts, which were set up by way of answer: In 1885, Sophia Sterne commenced a suit in the Hamilton circuit court to foreclose a mortgage theretofore executed by William Vert and wife, covering the real estate against which the plaintiff was seeking to enforce a vendor's lien. The vendor's lien. The plaintiff, as well as the defendants in the present action, were made parties defendant to the foreclosure suit. The plaintiff appeared to the action and answered, setting up the lien which she is now seeking to enforce. It is alleged that the court gave judgment against Sophia Sterne in the foreclosure suit, and also entered a decree quieting the title of the defendants to the real estate described in the complaint against all the parties to the suit, except John W. Hannah, who held a mortgage on the land, which upon his cross-complaint was foreclosed. The foregoing facts were held to constitute a good defense of former adjudication as against the appellant, Mrs. Jones. The further question is discussed as to the sufficiency of the evidence to support the finding and decision of the court, which is presented by the motion for new trial, and The facts pleaded fall far short of making a good defense. It is undoubtedly true that a judgment in a foreclosure suit, or in a suit to quiet title, is conclusive of any claim or title adverse to the plaintiff in that case, as against all who were made parties, and this is so whether the adverse interests or titles of the defendants are specially set up or not. Adair v. Mergentheim, 114 Ind. 303, 16 N. E. Rep. 603; Barton v. Anderson, 104 Ind. 578, 4 N. E. Rep. 420. But this rule applies only between parties and others in privity with them, and does not preclude those who were strangers to the controversy in which the judgment was rendered from again bringing the same matter in contest. "It is generally put in the books that the plaintiff OLDS, J. This is an action against the estate of Samuel S. McClure, deceased, for an allowance of a claim for damages resulting to appellant by reason of the alleged negligence in the decedent's failure as sheriff of Knox county to levy and collect an execution in favor of appellant against the execution defendants, whom it is alleged had sufficient property subject to execution to have satisfied the execution. Issue was joined, and trial had at the March term, 1889, of the Knox circuit court, resulting in a finding and judgment for nominal damages in favor of appellant. The finding and judgment were rendered during the March term, and prior to the last day thereof. The record does not show the presentation or making of any motion for new trial at the same term the cause was tried and determined. The record shows that on the 12th day of May, the same being the 7th day of the May term, 1889, of said court, the must be not only the same person, but he George G. Reily, for appellant. J. C. Admust be suing in the same right." McBur-ams, for appellee. nie v. Seaton, 111 Ind. 56, 12 N. E. Rep. 101. In actions in personam the doctrine of former adjudication is limited to parties and privies, and by "parties" will be understood parties to the issue on which the judgment was pronounced. The party who invokes the doctrine of former adjudication must be one who tendered to the others an issue to which the latter could have demurred or pleaded. Harvey v. Osborn, 55 Ind. 535. Where one of the defendants makes an issue with the plaintiff, a judgment settling the issue so made in favor of the defendant does not determine the question between co-defendants. Leaman v. Sample, 91 Ind. 236; Gipson v. Ogden, 100 Ind. 20. "The thing demanded must be the same. The demand must be founded upon the same cause of action. The demand must be between the same parties, and found by them against each other, in the same quality." Wells, Res Adj. § 14. Ordinarily, four things must concur before the principles of res adjudicata can be in-appellant presented a showing that at the voked: (1) A suit; (2) a final judgment; (3) identity of subject-matter; (4) identity of parties. The facts pleaded show that all the elements were absent, except the judgment. State v. Page, 63 Ind. 209. There was no suit between the present plaintiff and defendants, no cross-bill having been filed. Quick v. Brenner, ante, 326, (present term.) The subject-matter in litigation was different, and the parties were not the same. The defendants in the foreclosure suit might possibly have put the validity of the vendor's lien in issue by filing a cross-complaint. Woolery v. Grayson, 110 Ind. 149. 10 N. E. Rep. 935. This does not appear to have been done, and we cannot presume that it was. There does not seem to have been any issue tendered or made between the defendants. In short there does not appear to have been any suit pending between them. Any judgment, therefore, that the court may have pronounced which purported to settle any title or claims between the defendants was coram non judice, and void. McFadden v. Ross, 108 Ind. 512, 8 N. E. Rep. 161; Griffin v. Wallace, 66 Ind. 410. The judgment is reversed, with costs. (121 Ind. 184) EMISON V. SHEPARD. (Supreme Court of Indiana. Nov. 25, 1889.) MOTION FOR NEW TRIAL. * * * Under Rev. St. Ind. 1881, § 561, which pro vides that "the application for a new trial may be made at any time during the term, section 562, which provides that "the application must be made by motion upon written cause filed at the time of making the motion," it is not sufficient to merely file with the clerk during the term a motion for a new trial. Appeal from circuit court, Knox county; WILLIAM F. TOWNSEND, Judge. Action by James Emison, trustee, etc., against John N. Shepard, administrator, etc. Judgment for plaintiff, who appeals. March term, at which the cause was tried, he filed a motion for new trial with the clerk of said court, and that the same was lost, and asked leave to substitute said motion. The application to substitute the motion was presented to the court, and, over the objection and exceptions of the defendant, the court finds that the appellant filed a motion for a new trial in said cause on the 46th day of the March term, and that the motion is lost; that the substituted motion is a true copy of the lost motion; and ordered and adjudged that the same be substituted, which is done. The action of the court in ordering the substitution is properly saved and presented by bill of exceptions, and assigned as cross-error, and this is properly the first question to be determined in the case. The only error being assigned by the appellant is the overruling of the motion for new trial, and, if the action of the court in permitting the substitution is erroneous, then there is no question presented by the appellant. It is not contended that anything more was done at the March term than to prepare a written motion, and file it with the clerk, and the finding of the court goes no further. The question presented is whether writing out and filing a motion for new trial is making an application for new trial, within the meaning of the statute. Section 561, Rev. St. 1881, provides that "the application for a new trial may be made at any time during the term at which the verdict or decision is rendered, and if the verdict or decision be rendered on the last day of the session of any court, or on the last day of any term, then on the first day of the next term of such court, whether general, special, or adjourned." Section 562 provides that "the application must be by motion, upon written cause filed at the time of making the motion." An application for new trial is made to the court, and it must be made during term-time. The statute expressly |