ant in common, or tenant in coparcenary, may maintain an action against his co-tenant or coparcener, or their personal representatives, for receiving more than his just proportion. A tenant in common is only liable to account to a co-tenant for rents when he excludes such co-tenant from possession, or receives rent from third persons. Crane v. Waggoner, 27 Ind. 52; Humphries v. Davis, 100 Ind. 369; Carver v. Coffman, 109 Ind. 547; Carver v. Fennimore, 116 Ind. 236; Bowen v. Swander, 121 Ind. 164; Schissel v. Dickson, 129 Ind. 139. 290. (289.) Nuisance.-709. Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. The board of county commissioners may be liable for nuisance, by keeping and maintaining a pest-house in such manner and so near a dwelling-house as to be offensive. Haag v. Board, 60 Ind. 511. A city hospital is neither prima facie nor per se a nuisance. Bessonies v. City, 71 Ind. 189. A cemetery is not, per se, a nuisance. Begein v. City, 28 Ind. 79. Nor is a railroad in the street of a town. New Albany, etc., R. R. Co. v. O'Daily, 12 Ind. 551. A nuisance may be adjudged such, and ordered to be abated, either in a civil or criminal case. McLaughlin v. State, 45 Ind. 338. Abatement does not necessarily follow a recovery of damages for a nuisance. Cromwell v. Lowe, 14 Ind. 234. The obstruction of a highway is a nuisance. State v. Phipps, 4 Ind. 515; Langsdale . Bonton, 12 Ind. 467; State v. Berdetta, 73 Ind. 185. Whatever is offensive to sight, smell, or hearing, that is erected or carried on in such a manner as to materially interfere with health or the enjoyment of property, is a nuisance. Hackney v. State, 8 Ind. 494; Moses v. State, 58 Ind. 185; Dennis v. State, 91 Ind. 291; Reichert v. Geers, 98 Ind. 73; Ohio, etc., R. R. Co. v. Simon, 40 Ind. 278. The erection of a certain class of buildings in populous cities may be a nuisance. Baumgartner v. Hasty, 100 Ind. 575. 291. (290.) Who may sue.-710. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance. Persons who suffer a special injury from the obstruction of a highway may have the nuisance abated. Pettis v. Johnson, 56 Ind. 139. Persons who are injured in health or property by a nuisance may sue for the abatement thereof. Haag v. Board, 60 Ind. 511; Williamson v. Yingling, 93 Ind. 42. 292. (291.) Nuisance-Remedy.-711. Where a proper case is made, the nuisance may be injoined or abated, and damages recovered therefor. On the conviction of a person for maintaining a public nuisance the nuisance may be ordered abated. McLaughlin v. State, 45 Ind. 338. It is within the discretion of the court to order a private nuisance abated. Maxwell . Boyne, 36 Ind. 120. SEC. ARTICLE 6.-ACTIONS, WHEN COMMENCED. 293. Accounts, etc.-Limitation. 294. Injury to person, etc.-Limitation. 300. New action after failure-Limitation. SEC. 301. Concealment of cause of action. 304. Effect of payment-Exception. [1881 S., p. 240. In force September 19, 1881.] 293. (292.) Accounts, etc.-Limitation.-37. The following actions shall be commenced within six years after the cause of action has accrued, and not afterward: First. On accounts and contracts not in writing. A claim against a county by a clerk of the circuit court for extra services, is an account. Nelson v. Board, 105 Ind. 287. Actions for contribution between sureties are to be brought within six years. Kreider v. Isenbice, 123 Ind. 13; Duncan v. Cravens, 55 Ind. 525. Second. For use, rents, and profits of real property. Third. For injuries to property, damages for any detention thereof, and for recovering possession of personal property. This clause applies to the appropriation of lands for a railroad. Strickler v. Midland R. W. Co., 125 Ind. 412. Proceedings to have damages assessed for lands taken by a railroad company are not governed by this clause. Shortle v. Louisville, etc., Co., 130 Ind. 505. Actions to recover damages for trespass on property must be brought within six years. Pickett v. Toledo, etc., R. R. Co., 131 Ind. 562. Fourth. For relief against frauds. The statute will run before the discovery of the cause of action unless the defendant conceals his liability. Pilcher v. Flinn, 30 Ind. 202. Actions to set aside fraudulent conveyances must be brought within six years. Musselman v. Kent, 33 Ind. 452; Wallace v. Metzker, 41 Ind. 346; Stone v. Brown, 116 Ind. 78. A suit to quiet title against a fraudulent grantee, is not a suit for relief against fraud. Eve v. Louis, 91 Ind. 457. This clause only applies when fraud is the primary cause of action and not when fraud is only incidentally involved. Wilson v. Brookshire, 126 Ind 497. When a demand is necessary before suit the statute will not run until after a demand. Dodds v. Vannoy, 61 Ind. 89; Cole v. Wright, 70 Ind. 179; Emerick v. Chesrown, 90 Ind. 47; High v. Board, 92 Ind. 580. An answer alleging that the defendant did not within six years promise, etc., is bad, as it should be averred that the action did not accrue within six years. McCollister v. Willey, 52 Ind. 382. 294. (293.) Injury to persons, etc.-Limitation.-38. The following actions shall be commenced within the periods herein prescribed, after the cause of action has accrued, and not afterward: First. For injuries to person or character, and for a forfeiture or penalty given by statute, within two years. An action to recover damages for wrongfully causing the death of a person must be brought within two years. Hanna v. Jeffersonville, etc., R. R. Co., 32 Ind. 113. Second. All actions against a sheriff, or other public officer, or against such officer and his sureties on a public bond, growing out of a liability incurred by doing an act in an official capacity, or by the omission of an official duty, within five years; but an action may be brought against the officer or his legal representatives, for money collected in an official capacity, and not paid over at any time within six years. Actions on bonds of officers must be commenced within the time limited after the expiration of the term of office. Pickett v. State, ex rel., 24 Ind. 366; Hawthorn v. State, ex rel., 57 Ind. 286; Ware v. State, ex rel., 74 Ind. 181. Actions on bonds of officers for collecting illegal fees may be brought within five years after action accrues. State, ex rel., v. Stevens, 103 Ind. 55. Actions against officers for money received must be brought within six years after the action accrues. Landers v. Fisher, 2 App. 64; Newsom v. Board, 103 Ind. 526. Third. For the recovery of real property sold on execution, brought by the execution-debtor, his heirs, or any person claiming under him, by title acquired after the date of the judgment, within ten years after the sale. An action by the debtor, to set aside a sale of lands on execution, must be brought within ten years after the sale. Brown v. Maher, 68 Ind. 14; Gray v. Stiver, 24 Ind. 174; Hatfield v. Jackson, 50 Ind. 507; Brenner v. Quick, 88 Ind. 546; Sedwick v. Ritter, 128 Ind. 209. The statute applies although the sale was void. Gray v. Stiver, 24 Ind. 174; Hatfield . Jackson, 50 Ind. 507; Brown v. Maher, 68 Ind. 14; Second Nat'l Bank v. Corey, 94 Ind. 457; Orr v. Owens, 128 Ind. 229. The statute applies to foreclosure sales. Sedwick v. Ritter, 128 Ind. 209. The statute does not apply where the sale has been set aside or declared void within the ten years. Hutchens v. Lasley, 11 Ind. 456. Fourth. For the recovery of real property sold by executors, administrators, guardians, or commissioners of a court, upon a judgment specially directing the sale of property sought to be recovered, brought by a party to the judgment, his heirs, or any person claiming a title under a party, acquired after the date of the judgment, within five years after the sale is confirmed. This statute does not bar a widow from recovering her interest in land sold by an administrator. Kent v. Taggart, 68 Ind. 163. Suits to recover lands sold by guardians must be brought within five years after confirmation of the sale, except where the parties are under disabilities. White v. Clawson, 79 Ind. 188; Walker v. Hill, 111 Ind. 223; Davidson v. Bates, 111 Ind. 391. Happ Fifth. Upon promissory notes, bills of exchange and other written contracts for the payment of money, hereafter executed, within ten a years: Provided, That all such contracts as have been heretofore exe-694 cuted may be enforced, under this act, within such time only as they 204 have to run before being barred under the existing law limiting the commencement of actions, and not afterward. Sixth. Upon contracts in writing other than those for the payment of money on judgments of courts of record, and for the recovery of the possession of real estate, within twenty years. Actions for breach of covenants in a deed may be commenced within twenty years. Hyatt v. Mattingly, 68 Ind. 271. A judgment is not a "contract" within the meaning of "contracts" in this section. Niblack v. Goodman, 67 Ind. 174. An action on the bond of a commissioner to sell lands in partition proceedings may be brought within twenty years. Owen v. State, ex rel., 25 Ind. 107. Twenty years adverse possession of real estate confers a complete title. Bowen v. Preston, 48 Ind. 367. The statute does not run in favor of one tenant in common in possession of the entire land as against his co-tenants. Bowen v. Preston, 48 Ind. 367; Patterson v. Nixon, 79 Ind. 251; Sanford v. Tucker, 54 Ind. 219. If one tenant in common in possession claims title to the whole land the statute Nelson v. Davis, 35 Ind. 474; Bowen v. Preston, 48 Ind. 367; English v. Powell, 119 Ind. 93. runs. The possession of a grantor is not adverse to his grantee. Rowe v. Beckett, 30 Ind. 154. Possession by an execution defendant is not adverse to the purchaser under the execution. Law v. Smith, 4 Ind. 56. Color of title is not necessary to constitute an adverse possession. Hargis v. Inhabitants, 29 Ind. 70; Jeffersonville, etc., R. R. Co. v. Oyler, 60 Ind. 383; Roots v. Beck, 109 Ind. 472; Herff v. Griggs, 121 Ind. 471. Actions on judgments are generally barred in twenty years, and the issuing of an execution does not extend the time. King v. Manville, 29 Ind. 134. 295. (294.) Actions not otherwise limited.-39. All actions not limited by any other statute shall be brought within fifteen years. In special cases, where a different limitation is prescribed by statute, the provisions of this act shall not apply. If the time expire before suit is brought, the action is barred, and no subsequent statute can renew it. Roush v. Morrison, 47 Ind. 414. A party claiming the benefit of exceptions in a statute of limitations must show himself within them. Vail v. Halton, 14 Ind. 344; Potter v. Smith, 36 Ind. 231. When a demand is necessary, the statute runs from the time of the demand. Judah v. Dyott, 3 Blkf. 324; Dodds v. Vannoy, 61 Ind. 89; Cole v. Wright, 70 Ind. 179; Emerick v. Chesrown, 90 Ind. 47; High v. Board, 92 Ind. 580. The demand must be made before the action has become barred. High v. Board, 92 Ind. 580; Newsom v. Board, 103 Ind. 526; Landers v. Fisher, 2 App. 64. The legislature intended to fix a definite time in which all actions should be brought. Potter v. Smith, 36 Ind. 231. This section applies to constructive trusts. It applies to actions for partition of lands. Also to actions to quiet title to lands. 91 Ind. 457; Irey v. Markey, 132 Ind. 546. And to applications of administrators to sell lands. Scherer v. Ingerman, 110 Ind. 428; Witz v. Dale, 129 Ind. 120. Potter v. Smith, 36 Ind. 231. Also for the specific performance of a parol contract for the purchase of lands. Martin v. Martin, 118 Ind. 227. It applies to an action by a widow to redeem lands from a sale under foreclosure proceedings. Barr v. Vanalstine, 120 Ind. 590. And to proceedings to appropriate lands under the right of eminent domain. Shortle . Louisville, etc., Co., 130 Ind. 505. 296. (295.) Balances due on mutual account.-40. In an action brought to recover a balance due upon a mutual, open, and current account between the parties, the cause of action shall be deemed to have accrued from the date of the last item proved in the account on either side. When items of account are all on one side, and only credits for payment on the other, it is not an open account under this section. Prenatt v. Runyon, 12 Ind. 174. After mutual accounts are closed, the statute runs as to the balance stated. Sanders . Sanders, 48 Ind. 84. Where work is done or materials furnished under a contract, the statute does not run until after the whole is completed. McKinney v. Springer, 3 Ind. 59; Littler v. Smiley, 9 Ind. 116. 297. (296.) Person under legal disabilities.-42. Any person being under legal disabilities when the cause of action accrues, may bring his action within two years after the disability is removed. The phrase "under legal disabilities" includes married women, infants, persons of unsound mind, persons imprisoned, and those out of the United States. Bauman v. Grubbs, 26 Ind. 419. Since the taking effect of the statutes of 1881, married women have not been under such disabilities as will except them from the statutes of limitations. Indianapolis v. Patterson, 112 Ind. 344; Royse v. Turnbaugh, 117 Ind. 539. Infants have two years after arriving of age to bring suit for cause of action accruing during their disability. Lehman v. Scott, 113 Ind. 76. The statute of limitations runs as to persons under legal disabilities, but the time for suing is extended. Barnett v. Harshbarger, 105 Ind. 410; Davidson v. Bates, 111 Ind. 391; Royse v. Turnbaugh, 117 Ind. 539. Cumulative disabilities will not extend the time for bringing suit. White v. Clawson, 79 Ind. 188; Knippenberg v. Morris, 80 Ind. 540; Sims v. Gay, 109 Ind. 501; Walker . Hill, 111 Ind. 223. 298. (297.) Absence or non-residence-Proviso.-43. The time during which the defendant is a non-resident of the state or absent on public business shall not be computed in any of the periods of limitation; but when a cause has been fully barred by the laws of the place where the defendant resided, such bar shall be the same defense here as though it had arisen in this state: Provided, That the provisions of this section shall be construed to apply only to causes of action arising without this state. Absence from the state as a volunteer soldier or sailor in the service of the United States is within the meaning hereof. Gregg v. Matlock, 31 Ind. 373. A debtor absent from the state, maintaining his residence in the state, so that process may be served here, is not "absent" within the meaning hereof. Kent v. Parks, 67 Ind. 53; Niblack v. Goodman, 67 Ind. 174. Absence of a plaintiff from the state does not stay the running of the statute. Royse .Turnbaugh, 117 Ind. 539. Absence from the state on public business applies to all actions wherever arising. Mechanics' Ass'n v. Whitacre, 92 Ind. 547. The statute does not run in favor of a person who is all the time a non-resident of this state after the cause of action arises. Wood v. Bissell, 108 Ind. 229. |